State legislation that would lead to the creation of a planning and transportation "super agency" in San Diego County is moving forward. Capitol insiders and a number of officials in the San Diego region expect bills that address San Diego regional governance to pass in some form before the Legislature concludes on August 31. In fact, there appears to be consensus that San Diego County needs a new, multi-functional entity to coordinate land use and transportation planning better. The sticky issue is one of governance — namely, who will be in charge of the new agency. Bills by Assemblywoman Christine Kehoe (D-San Diego) and Sen. Steve Peace (D-El Cajon) call for an appointed governing board similar to the existing San Diego Association of Governments (SANDAG) board, on which all 18 cities and the county have equal representation. However, the San Diego County Board of Supervisors and some policy analysts question whether an agency with the extraordinary powers that are proposed should be run by appointed representatives. The county has produced a counter-proposal to create a new transportation agency with a seven-member, directly elected board. As of late June, both Kehoe's AB 2095 and Peace's SB 1703 remained alive in the Legislature. The bills would create the "San Diego Regional Authority." The bills are not identical but are similar, and SANDAG is sponsoring both measures. "We're trying to consolidate the decision-making process so that the people who are making the land use decisions are also the people making the transportation decisions," said Gary Gallegos, SANDAG executive director. One of the key provisions — and a source of some controversy — would be the Regional Authority's ability to override a city or county decision that impacts a "regionally significant transportation project." Peace, who is in his final year in the Legislature, has made regional governance one of his top priorities. And Kehoe, a former San Diego city councilwoman, is a believer. "Along with revenue-sharing and managed growth planning," Kehoe said, "regional governance is one more tool towards trying to stretch our dollars more efficiently, and to respond to housing, transportation and development needs." "The bill is still a work in progress," Kehoe added. "I think something will get through. I don't know what it is yet." The regional government debate has been ongoing in San Diego County since Peace three years ago proposed merging five existing entities, including two transportation boards and the port district, into one super agency. He eventually settled for creation of the San Diego Regional Government Efficiency Commission (known as Regis). Last year, that commission recommended creation of an entity similar to the proposed Regional Authority. The commission also led to creation of a new entity to run all airports in the county and to plan for a large new airport (see , August 2001, October 2001). Officials at SANDAG have been part of the regional debate since its outset and have proposed a five-prong approach, Gallegos explained. • Create permanency. SANDAG is a joint powers authority whose members can come and go. State legislation would mandate a permanent entity, recognizing that metropolitan San Diego is really one place. • Develop a regional plan. SANDAG is already working on a plan that meshes local general plans. A state law would ensure a plan that considers regional needs gets done, Gallegos said. • Assume authority and responsibility for regionally significant transportation projects. This means a two-thirds vote of the Regional Authority board could decide the location of freeways, arterial streets and transit lines, no matter what the local jurisdiction says. • Address the border zone. The state should require a comprehensive plan for San Diego and Imperial counties for the stretch of land just north of the border with Mexico, Gallegos said. • Consolidate SANDAG's regional planning responsibilities with the ability to plan and deliver transit projects. Now, the Metropolitan Transit Development Board (MTDB) and the North San Diego County Transit Development Board (NCTD) handle transportation planning and operate transit systems. The Regional Authority would take over transit planning and project delivery. Gallegos said SANDAG officials wanted to gain agreement on the five above points before addressing who would run the Regional Authority so that the first — and potentially last — argument would not be about governance. The SANDAG proposal gives every city and the county one representative with the exception of the City of San Diego, which would have two representatives. Board actions would need to receive a majority of board votes, as well as a majority of votes weighted approximately by population, with no city having more than 40% of the weighted vote. The county Board of Supervisors has objected to the governance proposal, saying that an agency with the Regional Authority's proposed powers should be directly accountable to voters. A state Senate committee analysis of AB 2095 agreed that duties such as "connecting land use and transportation choices, or overriding local agencies' decision require the representative democracy." The Kehoe bill does require voters to approve creation of the Regional Authority. But, Kehoe said, there is no need for directly electing the board at this point because the entity would have no taxing authority. The county also objects to the proposal to fold the border development zone into this agency, said Jonathan Clay, a lobbyist for the county. And, he said, there is a need to clarify the Regional Authority's environmental planning role because SANDAG now assists cities with habitat plans and related matters. Leaders of the county's smaller cities have expressed concern about creation of the Regional Authority. The biggest worry is the potential to lose local control, said Christy Guerin, mayor of Encinitas. But Guerin said she is consigned to the likelihood that state lawmakers will approve something this year, so the city needs to work on shaping how the entity will look. Guerin said she concurs with Regional Authority proponents about the county's need for more cohesive transportation planning. And, like many officials in north San Diego County, she complained that the south county cities of San Diego and Chula Vista get more than their share of transportation improvements. "A part of me really looks forward to shaking up things at NCTD and MTDB," Guerin said. A less ambitious regional planning proposal regarding the San Francisco Bay Area also is making its way through the Legislature. The bill, SB 1243 (Torlakson), would merge the Association of Bay Area Governments and the Metropolitan Transportation Commission into the Bay Area Land Use and Transportation Commission. The new entity would be responsible for preparing a long-range policy plan every five years. The bill is opposed by ABAG and a number of local government officials in the Bay Area, although amendments that make the bill more palatable could be introduced before the end of the session. Contacts: Gary Gallegos, San Diego Association of Governments, (619) 595-5332. Assemblywoman Christine Kehoe, (916) 319-2076. Christy Guerin, Encinitas mayor, (760) 633-2620. Jonathan Clay, San Diego County lobbyist, (916) 441-0202.

The U.S. Supreme Court has decided to review a Clean Water Act case from California's Central Valley. The case involves the federal government's ability to regulate agricultural activity in wetlands. Last year, a Ninth Circuit panel ruled 2-1 in that federal regulators could protect wetlands from the practice of "deep ripping." The court upheld a lower court's ruling that Sacramento developer Angelo Tsakopoulos violated the Clean Water Act when he dragged four- to seven-foot-long metal prongs through wetlands areas in preparation for planting vineyards and orchards on property straddling the Sacramento-San Joaquin county border (see , October 2001). The split court ruled that redepositing soil in swales could constitute adding a pollutant to protected wetlands areas. The court ruled that the Army Corps of Engineers had the ability under the Clean Water Act to prevent Tsakopoulos from converting wetlands to dry lands suitable for farming. Citing the U.S. Supreme Court's decision in , 531 U.S. 159 (2001), the Ninth Circuit further ruled that the Corps of Engineers could not prohibit Tsakopoulos from deep ripping in vernal pools — only in wetlands swales. The Supreme Court will hear oral arguments during its next term, likely in November or December. The case is , No. 01-1243.

A garbage company can challenge the environmental review of a competitor's proposed trash processing facility because the garbage company was enforcing a public duty of a local government, the Fourth District Court of Appeal has ruled. The case involved Burrtec Waste Industries' challenge of Taormina Industries' project in Colton. Taormina sought to amend a conditional use permit for a recycling facility so that it could also process solid waste. Colton approved the amended permit and a mitigated negative declaration in October 2000. The appellate court distinguished the Burrtec case from a decision two years ago in , 79 Cal.App.4th 1223 (see , May 2000). In that case, Waste Management argued that Alameda County should have required a competitor to complete an environmental impact report before accepting certain types of waste at a landfill. But the Third District ruled that Waste Management did not have standing to file the lawsuit because Waste Management's only interest was financial, which is not an interest the California Environmental Quality Act protects. In the case at hand, Burrtec argued that Colton did not post a notice of intention to adopt a mitigated negative declaration as required by CEQA in Public Resources Code § 21092.3. Posting of a legal notice is a genuine public concern that is "not confined to any commercial interest" of Burrtec, the court ruled, citing San Bernardino County Superior Court Judge Bob Krug's decision, which was upheld. "CEQA litigants often may be characterized as having competing economic interests," Justice Barton Gaut wrote for the unanimous three-judge appellate panel. "But, under CEQA, a corporation is a person entitled to receive notice and to bring a suit for non-compliance. Furthermore, as noted by the trial court, the interest asserted by Burrtec in its writ petition is not a commercial one but an issue involving the adequacy of the public notice required by CEQA. Where a plaintiff seeks by mandamus to enforce a public duty, especially under CEQA, standing is properly conferred." After deciding that Burrtec could pursue its lawsuit, the court moved on to the merits of the case. The court ruled that Colton had failed to post at the county clerk's office the required notice of intention 20 days prior to a public hearing, at which the city considered the mitigated negative declaration. Taormina presented testimony from a Colton planner and a clerk in the San Bernardino County Board of Supervisor's office. The planner said she remembered sending the Board of Supervisors a notice, and the clerk explained the procedure for posting such notices. However, the court noted that their testimony was not part of the administrative record, so the court did not have to consider it. Moreover, the court held, the employees did not state when the notice was mailed and posted. "The only reference to ‘posting' appears on a ‘Notice of Public Hearing' dated September 28, 2000, and announcing a hearing on October 10, 2000, concerning the MND ," Gaut wrote. "There is no indication in the administrative record that either the NOI or the notice of public hearing was ever delivered to the clerk of the Board of Supervisors for posting." The Case: , No. E030046, 02 C.D.O.S. 3559, 2002 DJDAR 4479. Filed April 8, 2002. Certified for publication April 24, 2002. The Lawyers: For Burrtec: John C. Nolan, Gresham, Savage, Nolan & Tilden, (909) 884-2171. For Taormina Industries: Edward Casey, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, (213) 576-1000.

Construction is underway on San Jose's Communications Hill, a 500-acre infill project that supporters are promoting as a large-scale, walkable, urban neighborhood. Early indications are that there is a great demand for the new houses, townhouses and apartments, but the easy access to transit and retail areas that might make the neighborhood truly walkable are lacking thus far. The project received numerous planning awards, including a Progressive Architecture Citation, when the city adopted a specific plan for the area during the early 1990s. Greenbelt Alliance, a Bay Area land conservation group, called it a "well planned infill development" in 1999. But only now is the vision taking shape on a brushy area a few miles south of the city's downtown core. A total of 4,000 dwelling units are planned, with about 1,000 units already built or under construction. Most of the area will have a density of 25 to 40 units per acre, with wide patches of hillside land dedicated to open space. Communications Hill gets its name from two microwave communication towers located at its top, which provides a view of the downtown, South San Jose and the Santa Cruz Mountains. Santa Clara County's light rail line bisects the area on its western flank, as does the Highway 87 freeway. Both lead north to downtown and high-tech campuses near the city's airport. A bicycle path parallels Highway 87, as well. The specific plan called for making the neighborhood as distinctive as hillside communities in Seattle or San Francisco. To create that atmosphere, developers are using a grid street pattern, rather than typical carved streets and cul-de-sacs. Most buildings are three or four stories high, with homes built close to the street, and yards located behind units. Bicycle paths, new streets and pathways are designed to connect ultimately with public transportation. Communications Hill, which rises 300 feet at its highest point, looks down over a hodge-podge of San Jose neighborhoods: low-density single family homes, a few mobile home parks, strip malls and heavy industrial areas. A few cows still graze on one side of the hill. The Communications Hill project is a completely different breed of development than its neighbors and is the kind that San Jose planners envision continuing to take root along the light rail corridor. At least four housing developments have already begun creeping up the hill, offering a hint of what the area will look like when it is fully developed. Steep pitched roofs and street-level doors and garages at the 155-unit Helzer Court Apartments call to mind San Francisco's neighborhoods � without the fog and bay views. The Santa Clara County Housing Authority operates the apartments. Three-story townhomes ranging in price from $400,000 to $500,000 are selling out in Western Pacific Housing's Lancaster Gate development on the southern flank of the hill. And KB Homes had to hold a lottery earlier this year when it was ready to sell the first 50 units of its 700-unit Tuscany Hills development. The Housing Authority apartments and Lancaster Gate were developed at the lower, more level parts of the hill, according to Jerry Strangis, a realtor who has represented the primary landowners of the property, the Bettencourt family, for the past 25 years. The KB Homes development is the first to tackle the actual hill and make related improvements. The developer will build a new road over the hill to connect with a light rail station. The layout of Communications Hill is supposed to encourage walking, the use of public transit and placement of neighborhood retail stores. But it will take a greater population before those features emerge, said Dayana Salazar, an associate professor of urban planning at San Jose State University. Strangis agrees, saying none of the current developments include any retail, in part because a critical mass of population "We talk a lot in urban planning about smart growth and I see Communications Hill as being part of that movement," Salazar said. But she added, "It will be a slow process before we see the kind of mixed-use community it will be." The commercial hub of Communications Hill is expected to be a village center with approximately 30,000 square feet of neighborhood retail. Strangis said that retail project will be planned only after KB Homes completes its project and builds a fire station and a park. While the nearby Santa Clara County city of Mountain View has success integrating light rail with housing development (see , July 2001, March 1998), Communications Hill appears to face a steeper battle. The light rail lines do not stop directly in the community as they do in Mountain View. Instead, the nearest light rail station is three-quarters of a mile away, and most new residences will lie more than a mile from the transit line. Few people are willing to walk more than a half mile to mass transit, Salazar said. Strangis expects a shuttle will be added someday when the need arises. The project's high density does permit open space conservation, Salazar noted. "It's important to have permanent open space because it's so visible," she said. Communications Hill was part of 23,093 acres designated as critical habitat for the threatened bay checkerspot butterfly by the U.S. Fish & Wildlife Service in April 2001. But the action had no impact on private landowners who do not need federal funding or permits to build. The grasslands on Communication Hill are considered capable of supporting the butterfly, but no insects have been found in recent years. Environmental studies for the area have also found rock containing asbestos, and that asbestos is expected to be exposed during construction. Planned mitigation measures include a dust control and air monitoring program during construction. Areas that have been graded for the projects will be capped with soil and rocks to prevent long-term release of asbestos. Contacts: Jerry Strangis, Strangis Properties, (408) 723-2177. Dayana Salazar, San Jose State University, (408) 924-5854. Janet Stone, Greenbelt Alliance, (415) 398-3730. City of San Jose website: http://www.ci.san-jose.ca.us/planning/sjplan

Two generations of Americans are likely to influence local planning, development, and economic activity in many ways during the coming 10 to 20 years: the retiring Baby Boom and the soon-to-be-working Echo Boom. In 2010, people born from 1946 to 1950 will be ages 64 to 60, respectively – the leading edge that begins a retirement trend that will last 20 years. Today, many members of the Baby Boom enjoy comfortable incomes and accumulated wealth and generally good health. Baby Boomer household incomes are about $10,000 to $15,000 higher than the median for all households, according to the Census 2000 Supplementary Survey (C2SS). While earned income decreases during retirement, many of these households are building additional income sources during their peak earning years and will not have to rely only on Social Security and an employer's retirement plan, as did previous generations. And, Boomers have substantial assets in their homes. The 1995 Census Bureau estimate of home equity for the 55 to 64 age group was about $70,000, 76% of the national 1995 median home value of $92,000 — and that was at the end of the recession that saw home prices drop considerably in many markets. Census 2000 sample data show a California median home value of $211,000 and that same 76% equity translates into $160,000. These 2000 numbers are already low given the recent increases in home prices in most areas of California. Baby Boomers have three choices when they retire: stay in their current homes, move locally, or leave the area. Each possibility has consequences for a community. If boomers stay in their homes, which are likely to be upscale, larger homes in suburban settings, those neighborhoods will take on a different set of local government service needs and will remain assessed at lower than market values. Planners should be careful not to "smart growth" a retiring Baby Boomer neighborhood with higher density. After working all their lives to buy the a single-family detached house that holds a large share of their net worth, Baby Boomers could see higher densities as a threat to their home equities and way of life. Some Baby Boomers may want to move locally to smaller, high-quality, low-maintenance, owner-occupied housing. This could be an opportunity for infill and upscale attached housing that also turns over the housing stock and boosts assessed values. The Baby Boomers' former neighborhoods would then, theoretically, be available to younger households with children. Cities might meet future housing needs by encouraging building at the top end of the market and letting the older, larger housing units filter down. Finally, retiring Boomers may opt to "cash out" and go just about anywhere they please. If a community is already a pleasant retirement area, it's likely to stay that way and grow with more retirees — who could run up housing prices and eat into a housing supply that was originally planned to serve the locals. The Echo Boom is the latter offspring of the Baby Boom, which started having children — albeit in smaller families — in 1970 and largely finished by 1995. The youngest kids of Baby Boomers added to the children of 1980's immigrants, many of whom had relatively large families, create this population bubble. In 2010, today's high school underclassmen will be looking for jobs, apartments and household necessities. Once they get jobs, Echo Boomers have to live somewhere. In tight housing markets, they could continue to live at home, team up into expensive rentals, or commute long distance. All of those options have inherent social, environmental and financial implications. To check a community's boomer balance, use Census 2000 tables broken out by age cohorts. These data at all levels of census geography are in Summary File 1 (SF1 dataset), Table P12, Sex by Age. Use ages 35 to 44 and 45 to 54 to determine the Baby Boomer population, and age cohorts 5 to 9 and 10 to 14 to approximate the Echo Boomers. Set the data up in a spreadsheet (set either males or females to all negatives) and you can generate a simple population pyramid like the example shown below for the City of Ventura. Then, promote the 5-year cohorts by 10 years, so that the 0 to 5 population is now 10 to 15, and so on (shown in gray). This is a crude analysis, but it provides some warning of how the two booms may impact the city's future.

The state Supreme Court will hear a case involving a county's ability to regulate a water district's construction of a water treatment plant. Earlier this year, the Sixth District Court of Appeal ruled that a Government Code exemption to local zoning for "facilities for the production, generation, storage or transmission of water" did not extend to a water treatment plant. The court held that if the Legislature wanted to exempt water treatment plants from local zoning, it could have specified them in the statute (see , April 2002). The ruling came in a case in which a homeowners association sought to prevent the Soquel Creek Water District from building a water treatment plant in a residential subdivision. The ruling drew the attention of special districts, cities and counties around the state. All seven state Supreme Court justices voted to hear the case. A date for oral arguments has not been set yet. The case is , No. S104952.

A decade after the passage of the "revenue neutrality" law, the incorporation of new cities appears to be back as a major planning issue in California. Now, however, there is a somewhat different twist. During the 1980s, almost every community with a strong retail base seemed to be incorporating. Then came the revenue neutrality law in 1992. Promoted by counties, the law was intended to ensure that a new city would not be created literally at the expense of a county. Incorporations slowed to a trickle because cityhood proponents were placed in a quandary. On the one hand, the community had to prove to the Local Agency Formation Commission that it would be fiscally viable on its own. On the other hand, proponents had to prove that the county would not be hurt financially by incorporation. (See , May 1999, April 1998, April 1993.) In the tax-squeezed, post-Proposition 13 world, this seemed like an unsolvable dilemma. But it turns out to be a dilemma that can be solved by one concept: alimony. Virtually all new cities today get around the revenue neutrality requirement simply by agreeing to turn some of their tax money back over to the county and, therefore, holding the county harmless. Alimony payments can be large or small — some are as little as a half-million dollars a year, others amount to tens of millions of dollars annually — but they appear to be the key to allowing new incorporations. As a result of this newfound reliance on alimony, incorporation efforts are reappearing. In the last few years, three cities in south Orange County and two cities in Sacramento County have incorporated. In February, the Santa Barbara suburb of Goleta finally became a city after decades of talking about it, partly by agreeing to pay big alimony ($5.8 million a year) to Santa Barbara County. This November, it appears there will be four incorporations on the ballot. Two have received national publicity — the secession attempts in Los Angeles by the San Fernando Valley (which would have to pay more than $100 million a year in alimony) and Hollywood. A third is in Rancho Cordova, another city being carved out of the vast swath of unincorporated Sacramento County suburbs. And the last is in Castro Valley in Alameda County, which, like Goleta, is a mature suburb that has been talking about incorporation for a long time. Although the secession efforts have received the most attention, the other two incorporations are more typical — and, for insiders, perhaps more interesting for the way that they represent the emerging trends in relations between cities and counties. Rancho Cordova, a working-class suburb of 55,000 people near the closed Mather Air Force Base east of Sacramento, will have to pay almost $7 million a year in alimony to Sacramento County. Incorporations in Sacramento County have a checkered history dating back to the Citrus Heights incorporation, which was held up for 10 years by opposition from county officials and labor unions (see , September 1998). In addition to steep alimony, the Rancho Cordova incorporation has an interesting wrinkle. The incorporation effort predates the "Hertzberg bill" (AB 2838, see , September 2000) that reformed the Local Agency Formation Commission process. For this reason, the agency that must hold a legally required protest hearing and formally place the measure on the ballot is not the LAFCO but Sacramento County, which has often been hostile to incorporations. Fearing opposition and foot-dragging that might knock the Rancho Cordova incorporation off the ballot this fall, Republican Assemblyman Anthony Pescetti, who lives in Rancho Cordova, has engaged in a classic cityhood maneuver: He is doing an end-run around local authorities by sponsoring AB 1138, which would require the county to make a decision in time to get incorporation on the fall ballot. Thus, no matter what the opposition, it appears likely that Rancho Cordova voters will decide in November. The Castro Valley incorporation has even more interesting wrinkles. This unincorporated area of 60,000 people has tried for cityhood before and failed, largely because proponents could not get enough signatures to reach the ballot. So when Oakland City Councilman Nat Miley ran for Alameda County supervisor, he promised the proponents that he would move incorporation forward. Miley joined the Board of Supervisors in January 2001 and, as a result — quite unlike the Sacramento experience — the county itself is the official applicant for the Castro Valley incorporation. Having the county as the lead proponent is both good and bad, said Alameda County LAFCO Executive Officer Lou Ann Texiera. On the one hand, it has moved incorporation forward quickly; on the other hand, because it was not a ground-up movement, the public is not as aware of the issues, and sometimes people get suspicious. The alimony deal in Castro Valley is of interest as well. To be fiscally viable, Castro Valley must take over the county's utility user tax — a tax that must be affirmed by city voters — and must also adopt a bed tax, which the county does not have. (The city will have to pay Alameda County around $600,000 a year in alimony.) So the measure on the ballot is not simply a vote to incorporate. It is a vote on extending the utility tax and imposing the bed tax. In other words, no utility and bed tax, no city. That is not exactly a tax increase — at least it is not a tax increase on the people who live in the city. But it is half-step back toward the old days prior to Proposition 13 when a city incorporation often meant a tax increase to support the new public entity. The rash of incorporations during the 1980s were "incorporations in the cheap" in the sense that the new cities simply transferred tax revenue from the counties and very often contracted back for services in a way that either enhanced critical services or saved money. It was simply a rearrangement of existing tax revenue. Today, however, communities seeking to incorporate will probably have to show more financial juice. In the face of alimony, potential new cities will probably have two choices. They will either need to have enough vacant land to grow their tax base in the future (the Rancho Cordova model) or they will have to take the hit for a few new taxes (the Castro Valley model). Simply put, if they can find a way to make the alimony payments, these communities can divorce themselves from the county. But if they are financially strapped — or unwilling to tax themselves — they may have to stay in a loveless governmental marriage.

The City of Malibu can regulate the use of land owned by the Santa Monica Mountains Conservancy, the Second District Court of Appeal has ruled. Although state agencies are typically exempt from local land use control, the court determined the state law that created the Conservancy keeps in tact the local police power. At issue is the use of a 22-acre ranch that Barbara Streisand donated to the Conservancy in 1993. The residentially zoned property on Ramirez Canyon Road in the City of Malibu contains five houses. The ranch has become the headquarters of the Mountains Recreation and Conservation Authority and serves the site of many revenue-raising events for the Conservancy, such as weddings, bar mitzvahs, and conferences. In 1999, the city filed a lawsuit seeking a declaration that the Conservancy was not immune from local regulation. The city also sought an injunction against commercial use of the property until an alleged violation of the California Coastal Act — alteration of a streambed on the property — was resolved. Ventura County Superior Court Judge Kent Kellegrew ruled for the Conservancy. Judge Kellegrew based his decision on Government Code § 53090 and § 53091. Those sections say that a "local agency" must comply with city and county building and zoning ordinances. And they define local agency as "an agency of the state for the local performance of governmental or proprietary function within limited boundaries." Kellegrew ruled that the Conservancy was not a local agency. The appellate court ignored the Government Code sections and instead looked to the Santa Monica Mountains Conservancy Act (Public Resources Code §§ 33000-33215). The court cited § 33008, which states in part, " t is necessary to enact the provisions of this division as a complement to the full exercise of the police power of local governments. … Nothing in this division shall supercede or limit a local government's exercise of the police power derived from any other provision of existing law or any law hereafter enacted." The Conservancy argued that the act — which cites substandard lots, incompatible uses and other land use problems — was intended to divest cities and counties of their land use control because piecemeal planning contributed to the problems. The Conservancy argued that the act's use of the word "complement" was intended to "encourage teamwork" among local governments and the Conservancy. But the court read the statute differently. "Use of the word ‘complement' with ‘full exercise of the police power' indicates a legislative intent to augment and enhance the City's ability to regulate Conservancy property rather than to restrict this power in any way," Presiding Justice Arthur Gilbert wrote for the Second District, Division Six. "The Conservancy's interpretation of § 33008 ignores a significant portion of the statute." In a modification to the original opinion, the court pointed to the act's legislative history as further support for the court's interpretation. "As just one example, the floor statement by the Act's legislative sponsor, then-Assemblyman Howard Berman, states that the proposed statute would ‘not … damage home rule in land use matters in the Santa Monica Mountains,'" Gilbert wrote. Berman went to say the act contained "no limitation on local jurisdictions' police powers." The Conservancy presented other arguments — that the city's ability to regulate land use would render the Conservancy's power illusory, and that the court's reading was in conflict with other parts of the act — but the Second District rejected the contentions. The court did not decide on the alleged violation of the Coastal Act. The Coastal Commission is reviewing that matter. The Case: , No. B151606, 02 C.D.O.S. 4165, 2002 DJDAR 5269 and 2002 DJDAR 6664. Filed May 14, 2002. Modified June 13, 2002. The Lawyers: For Malibu: Christi Hogin, city attorney, (310) 939-1636. For the Conservancy: Robert McMurry, Nossaman, Guthner, Knox & Elliott, (949) 833-7800.

Two rulings by the Ninth U.S. Circuit Court of Appeals regarding the setting of permissible pollution levels in surface waters offer a mixed review of the issue. Both cases involve the establishment of total maximum daily loads (TMDLs) as mandated by the Clean Water Act. In the first case, the court ruled against environmentalists who sued to force the federal government to set TMDLs for California because the state was slow to do so. But one month later, a different panel of Ninth Circuit judges ruled that federal regulators could establish a TMDL for the Garcia River in Mendocino County. Section 303(d) of the federal Clean Water Act mandates the TMDL process, which requires states to identify all bodies of water that do not meet water quality standards, and then create TMDLs for them. A TMDL calculates the total amount of a pollutant a river or lake can accept and still meet water quality standards. A TMDL is supposed to account for the cumulative impacts of multiple sources of pollution, including point sources, such as sewer plants and factories, and nonpoint sources, such as urban developments and farms. Although Congress approved the Clean Water Act in 1972, states ignored TMDLs for years while focusing on point sources (see , August 1999). Not until the 1990s did most states — including California — begin serious TMDL work. This delay in setting TMDLs was the subject of the first lawsuit, filed by San Francisco Baykeeper and other environmental groups. In a suit against the federal Environmental Protection Agency, the environmental groups argued that the state had failed to implement an adequate water pollution control program and had not set TMDLs, so the EPA had a duty to take over the TMDL effort. U.S. District Court Judge Charles Legge ruled against the environmentalists, and a unanimous three-judge panel of the Ninth Circuit upheld the decision. California did not submit any TMDL proposals for review by EPA until 1994 — 15 years after the first deadline contained in the Clean Water Act (§ 303(d), 33 U.S.C. § 1313(d)(2)). However, by May 2000, the state had completed about 50 TMDLs and was on schedule to finish TMDLs for all overly polluted waters within 12 years. Baykeeper argued that the state's failure to do anything until 1994 triggered a nondiscretionary duty by the EPA to set TMDLs for California. But the Ninth Circuit read § 303(d) differently. The court ruled that the EPA is mandated to act only if it disapproves a state's TMDL submission. Under the "constructive submission doctrine," only a state's complete failure to act triggers the EPA's duty to intercede, the court held. The court cited the Tenth Circuit's decision in , 264 F.3d 1017 (2001), regarding Oklahoma's failure to submit any TMDLs. The Tenth Circuit ruled that EPA did not have a duty to set that state's TMDLs because Oklahoma had established a schedule for completing the 1,400 TMDLs necessary by 2010. "We agree with the Tenth Circuit's decision in ," Justice Procter Hug Jr. wrote for the Ninth Circuit. "California has submitted at least 18 TMDLs and has established a schedule for completing its remaining TMDLs. Under the constructive submission doctrine, then, these actions on the part of California preclude any finding that the state has ‘clearly and unambiguously' decided not to submit any TMDLs." The court also rejected the environmentalists' argument that the EPA violated the Administrative Procedures Act mandate to avoid "unreasonable delay" because the EPA has no statutory duty in the first place. The second case involved the EPA's establishment of a TMDL for sediment for the Garcia River. Landowners Guido and Betty Pronsolino and several branches of the Farm Bureau sued. Their central argument was that because no point sources polluted the Garcia River, the EPA could not regulate nonpoint source pollution. District Court Judge William Alsup ruled against the landowners. A three-judge panel of the Ninth Circuit upheld the ruling. In 1995, environmental and fishermen's groups sued the EPA to force the setting of a TMDL for the Garcia River. To settle the suit, the EPA agreed to establish a TMDL by March 18, 1998. The agency apparently then turned over the process to the state, which completed a draft plan but missed the deadline for adoption. The EPA then established a sediment TMDL for the river. The Pronsolinos sought permission to log 800 acres they owned in the Garcia River watershed. To comply with the EPA's TMDL, the state permitted the logging on the condition that the Pronsolinos greatly limit the amount of sediment from the timber harvest site. Two other landowners also sought timber harvest permits and met similar conditions. They estimated the permit conditions would cost them between $750,000 and $10 million apiece. So they sued, challenging the EPA's authority to set TMDLs for a river that is polluted only by nonpoint sources, such as their logging operations. The Ninth Circuit ruled that the Clean Water Act does not make the distinction claimed by the landowners. "Water quality standards reflect a state's designated uses for a water body and do not depend in any way upon the source of the pollution," Judge Marsha Berzon wrote for the court. "Section 303(d) is structurally part of a set of provisions governing an interrelated goal-setting, information-gathering, and planning process that … applies without regard to the source of pollution." The Ninth Circuit also rejected the argument that the EPA had trod on land use control that properly belonged to the state. The TMDL, the court ruled, was simply a water quality standard. "It does not specify the load of pollutants that may be received from particular parcels of land or describe what measures the state should take to implement the TMDL," Berzon wrote. First Case: , No. 01-16111, 02 C.D.O.S. 3181, 2002 DJDAR, 3971 and 2002 DJDAR 4869. Filed April 15, 2002. Modified May 3, 2002. The Lawyers: For Baykeeper: Michael Lozeau, Earthjustice Legal Defense Fund, (415) 567-4141. For EPA: Sandra Slack Glover, Department of Justice, (202) 514-2000. Second Case: , No. 00-16026, 02 C.D.O.S. 4733, 2002 DJDAR 6059. Filed May 31, 2002. The Lawyers: For Pronsolino: Russell Eggert, Mayer, Brown, Row & Maw, (312) 782-0600. For EPA: Sean Donahue, Department of Justice, (202) 514-2000.

The state Department of Fish and Game's (DFG) review of development projects under the California Environmental Quality Act is lacking, according to a report by the Legislative Analyst's Office (LAO). And, if the department's budget is cut as proposed by the Davis administration, DFG's project reviews could suffer even more, the LAO concluded. "We found that the effectiveness of the department's CEQA review is limited by several factors, most significantly the department's lack of a formal process for prioritizing projects for review and determining their level of review," the LAO report states. The department could only estimate that it annually receives 8,000 to 13,000 CEQA documents, of which the department reviews about 40%. The LAO reported that the comments DFG did provide to local agencies were not based on a standard protocol and were not followed up. The Legislative Analyst was also sharply critical of the department's data gathering and management. "At the time this report was prepared, DFG could not provide basic information about its CEQA review activities (such as the number and type of documents it receives), thereby making both internal management and legislative oversight difficult. Specifically, without adequate tracking of its CEQA review activities, we question how the department can adequately budget for these activities and target its resources effectively," states the report. A 1990 law requires DFG to collect fees for its environmental reviews, and the department took in $1.8 million in fees during the 2000-01 fiscal year. But the LAO found that local agencies apply the fees inconsistently, and the money did not necessarily fund CEQA reviews. The LAO had four primary recommendations for the department: o Establish clear workload priorities. o Standardize the type of information provided in comments. o Improve data management. o Assess the effectiveness of a sample of widely used mitigation measures. The report is available on the Legislative Analyst's website at http://www.lao.ca.gov/2002/ceqa/CEQA_043002.html . * A housing element bill that drew intense opposition from local governments last year has returned to the Legislature with extensive amendments. However, cities and counties still oppose SB 910 (Dunn), which would order the state Controller's Office to fine jurisdictions that lack a certified housing element. The amendments introduced in May reflected months of work by a housing element working group. The bill would be the biggest overhaul of the housing element statute since the original law passed in 1980. Among other things, the bill would modify how fair-share housing allocations are made and require local governments to implement programs by a specific date. The Assembly Local Government Committee passed the amended bill in early June. However, the Assembly Committee on Housing and Community Department postponed two hearings scheduled for later in the month. Lawmakers are scheduled to resume consideration of SB 910 in August. * California will need $56 billion worth of infrastructure improvements during the next five years, according to a report from the Department of Finance. The Legislature mandated preparation of a five-year infrastructure plan in 1999. This is the first version, and it was released nearly six months late and with little publicity. The plan says the state needs $27.7 billion worth of transportation projects, $14.9 billion worth K-12 schools, $5.4 billion for higher education facilities, $2.4 billion of water projects, $1.5 billion worth of natural resources and environmental protection, and $1.1 billion of public safety facilities. Money for the projects would come from several sources: $21.1 billion in state bonds, $14.4 billion from dedicated revenues such as gasoline taxes, $13.6 billion in federal funding, $3.2 billion in lease-revenue bonds, $1.6 billion from the general fund, and $2 billion from smaller sources. While long-time infrastructure proponents, including the California Business Roundtable, called the report a good first step, skeptics questioned who would implement the plan. The plan is available on the Department of Finance website at http://www.dof.ca.gov:8080/html/capoutly/co%2Dhome.htm . * Gov. Gray Davis could complete four years in office without making substantive changes to the California Environmental Quality Act Guidelines. The Governor's Office of Planning and Research (OPR), and the Resources Agency have conducted stakeholder meetings and received about 300 suggestions for changes since beginning a review process in March 2000. To date, however, proposed revisions have not been released for public review and officials indicate the matter is not a priority for Davis administration leaders. The most substantive of the proposed revisions deal with mandatory findings of significance and the determination of significance, according to OPR. Other changes would be technical or would reflect recent statutory changes, which have been minimal. State officials plan to conduct several public workshops prior to adopting changes. The last major revisions to the CEQA Guidelines were adopted by the Wilson administration in 1998 (see , October 1998). A Sacramento County Superior Court threw out some of those revisions last year (see , June 2001), but an appeal is pending. The Resources Agency adopted minor technical revisions in February 2001. * The Legislative Analysts Office (LAO) has recommended lawmakers take an active role in the implementation of Proposition 40, the $2.6 billion parks and natural resources bond that California voters approve in March. The LAO urged the Legislature to: o Review grant criteria. o Monitor administrative costs and cap them at 5%. o Designate a lead agency, probably the Resources Agency, to oversee all Proposition 40 activities and reporting. o Require the governor's budget to display bond fund balances. o Consider in the budget process the future costs of maintaining and developing land acquired with bond funds. The report is available on the LAO website at http://www.lao.ca.gov/2002/prop_40/prop_40_050702.html . * A bill by U.S. Sen. Barbara Boxer that would designate 2.5 million acres in California as "wilderness" is receiving a great deal of attention. Many rural communities whose economies rely on timber, cattle grazing and mining, as well as motorized vehicle recreation, are opposed to S 2535, which Boxer introduced in May. Boxer says the measure is necessary to protect plant and animal species, and the watershed. Republicans in Congress have vowed to kill the proposal, but Boxer has indicated she will press the proposal for as long as it takes. A detailed map of the proposed wilderness areas is available on Boxer's website, http://boxer.senate.gov/newsroom/wilderness/index.html . * Save-the-Redwoods League signed an agreement in June with Stimson Lumber to purchase 25,000 acres of redwood forest in Del Norte County for $60 million. As part of the agreement, the League and Stimson will jointly pay the county $5 million to offset to loss of future revenues from timber harvesting. The state provided $42.5 million from various sources, including parks and water bonds, for the purchase. The U.S. Fish & Wildlife Service provided $2.5 million, and the private League contributed $15 million. After completing the deal, the League turned over the title to the state Department of Parks and Recreation, which already owns two adjacent parks. The acquisition is three times the size of the Headwaters Forest in Humboldt County, which the state purchased for $480 million in 1998. * About 40% of California's cities and counties have not updated their general plans comprehensively in at least 10 years, according to the Office of Planning and Research. In a letter to the state attorney general, OPR identified 197 cities and 27 counties that have not overhauled their general plans in a decade or more. That is about 20 more jurisdictions than were on the 10-year list in 2001, according to State Clearinghouse Director Terry Roberts. However, about 50 of the jurisdictions are working on comprehensive updates, she said. * The San Diego Unified Port District's development and leasing activities came under sharp criticism in a report by the State Auditor. The report says the Port District chose a hotel developer without seeking competitive proposals, setting up a deal that ultimately cost the district millions of dollars and more than two years of delay. The report also says that the port's lease rate for an existing hotel was below market rate, that the port's board failed to meet the state open meeting law on several occasions, and that a port commissioner failed to disclose an interest in a property. In June 1999, the port chose resort developer Douglas Manchester to build a large hotel adjacent to the convention center. The port district signed a contract with Manchester without issuing a request for proposals. The original contract was canceled in October 1999. The sides signed new agreement, although the port board did not publicly approve the amended contract, according to the state auditor. Manchester never broke ground and in June 2001, the port district agreed to pay him more than $5 million to end the contract and prevent him from suing the agency. The port district has since issued a request for qualifications. The port also did not solicit competitive proposals for two other hotel projects, according to the state auditor. The auditor found that the port district has charged below-market lease rates to the San Diego Marriott Hotel since October 1996 and, under contract, cannot change the rate until 2006. The below-market lease could cost the port district $7.4 million over 10 years. There was no public discussion of the below-market rate, according to the state auditor. In a brief response letter, Port District Executive Director Bruce Hollingsworth downplayed the state auditor's findings, calling the issues raised "relatively minor." The report is available on the state auditor's website, http://www.bsa.ca.gov/bsa/summaries/2001116.html . * The California Coastal Commission unanimously rejected a proposed 12-story hotel in downtown Oceanside. During their June meeting, commissioners rejected the city's proposed Local Coastal Plan amendment, which would have closed several streets to vehicle traffic to allow Manchester Resorts to build a 400-room resort (see , November 2000). "This is too dense, too big and doesn't consider public access," Commission Chairwoman Sara Wan said. * The Irvine City Council in June approved a general plan amendment and rezoning that allows for development of 12,350 housing units and 7.3 million square feet of office, retail, and industrial space on about 3,100 acres. The plan for the Orange County city's northern sphere of influence also designates 4,600 acres as permanent open space, including parkland. The Irvine Co. owns the land, which is next to the closed El Toro Marine Corps base. Annexation proceedings for a small portion of the Northern Sphere are already underway. * The Redondo Beach City Council has rescinded its approval of a specific plan for 150 acres of the waterfront. The council voted 3-2 in June to kill the "Heart of the City" plan after project opponents gathered enough signatures in only two weeks to force a referendum (see , January 2001). Opponents said the plan for infill and redevelopment — which would have allowed about 3,000 new residences and 600,000 square feet of commercial space — was simply too intense for the Southern California beach town. "A lot of people will be receptive to a scaled-down version," leading project opponent Chris Cagle told the . "I don't know how scaled down." * A proposal to build a football stadium in downtown Los Angeles vanished nearly as quickly as it surfaced. Anschutz Entertainment Group announced in mid-June that it was dropping the project, which had stirred protest from Los Angeles County, taxpayer advocates, the Los Angeles Memorial Coliseum Commission, and even some sports writers. "We just didn't want to go through an ugly political process on this issue," AEG President Tim Leiweke told the . The announcement came less than a month after Mayor James Hahn and city councilmembers backed creation of an 879-acre downtown redevelopment project area and suggested they might support public financing for the football stadium (see , June 2002). * A 2.2 million-square-foot office and retail development in El Segundo won voters' approval during a referendum in June. By a two-to-one ratio, voters upheld the City Council's approval of a Thomas Properties Group project on the former Rockwell International factory site near Los Angeles International Airport. About 31% of El Segundo voters turned out for the one-issue special election. Kilroy Realty, a developer whose headquarters is across the street from the site, has tried to block the Thomas project by suing the city and funding the referendum effort (see , May 2002). * The Gilroy City Council has approved a general plan update that, in part, designates 664 acres of farmland for development of high-tech campuses (see , January 2002). The council voted 5-2 in June to approve the "660 plan." The city can now proceed with an annexation proposal, although the Santa Clara County Local Agency Formation Commission has already raised questions about the loss of farmland, the potential for flooding and an abundance of land already zoned for industrial development. Three homeowners groups have sued the City of Folsom over the city's recent decision to rezone 128 acres for development of about 2,900 affordable housing units. In April, Folsom officials signed an agreement with Legal Services of Northern California, which earlier won a lawsuit because none of the 7,000 housing units the city approved during the last decade were for low-income people (see , May 2002, January 2002). After signing the agreement, the city identified 64 properties that could be rezoned for affordable housing development. That list caused an immediate not-in-my-backyard backlash from homeowners in the eastern Sacramento County town. Their lawsuit contends the city's agreement was made without public input, would harm public health and safety, and would degrade the environment. * A proposed Elk Grove shopping mall opposed by the state Department of Conservation has been blocked by a Sacramento County superior court judge. The developer of the proposed 295-acre Lent Ranch shopping mall, Martin Feletto, said he would appeal. Judge Lloyd Connelly ruled that the city should have considered the feasibility of creating a permanent agricultural buffer south of the development site as a way of mitigating the loss of prime farmland — the issue that caused the state to sue the two-year-old city. Connolly also ruled the city did not adequately address the risks associated with building near two large propane storage tanks. *

One dim memory I have from sixth grade biology is that of the oxpecker, a small bird that sits on the back of the rhinoceros. Normally a dominating and irascible beast, the rhino tolerates the oxpecker because the bird does something the rhino cannot do for herself: relieve her of all the troublesome insects that worry her neck, back and hindquarters. As most sixth graders know, this relationship is an example of symbiosis, or the cooperation of two organisms to their mutual benefit. One company that has developed a symbiotic relationship with several California cities is Big League Dreams, a Mira Loma-based concern that operates publicly owned ball fields for youth sports and amateur athletics. The company is 38% owned by William E. Simon & Sons, the investment firm headed by Republican gubernatorial candidate Bill Simon Jr. The facilities are large complexes that cover anywhere from 25 to 105 acres apiece. They feature baseball and softball fields designed to resemble, on a miniature scale, the nostalgic wooden-bleacher baseball parks of yesteryear, such as Boston's Fenway Park or Chicago's Wrigley Field. So far, Cathedral City and Mira Loma, both in Riverside County, have built Big League Dreams facilities, while new complexes are under construction in Chino Hills (San Bernardino County), Redding (Shasta County) and, most recently, in Redlands (San Bernardino). General Manager Rick Odekirk claims two more California cities are about to approve deals with his company, which has marketed itself to municipalities aggressively for several years. "We are clearly the most popular sports-club development company in America, by quite a distance," Odekirk crowed during a recent interview, adding that the company has "quite a long list of cities requesting our presence." For Redlands, the primary benefits would be "being able to supply our residents with a nice-quality facility for softball and other things that we don't really have here," said Ron Mutter, the city's public works director. "We turn a lot of teams away." Beyond nostalgia, Big League Dreams has a design formula for its franchises. Each complex basically consists of a ring of baseball and softball diamonds, including "replicas" of historic baseball parks, arranged around a central "hub" consisting of an enclosed basketball court on one side and a clubhouse with a restaurant on the other. Individual cities can expand the menu of sports facilities, depending on the land available, to soccer fields, beach volleyball, tennis courts and skateboard parks. Big League's business model is designed with equal care. Cities can lease the city-owned facilities to the company, which assumes all the risk and all the upside. In the case of Redlands, however, the city wanted some of the upside, as well, and entered into a revenue-sharing agreement last December with the private company. At first glance, such an arrangement may seem unremarkable: After all, many cities routinely contract with private operators to run city-owned concert halls and sports stadiums. What is remarkable about the deal between Redlands and Big League Dreams is the intricate interdependency between the public entity and the sports club operator. To understand the symbiotic ingenuity of the Big League Dreams business model, let us take a closer look at the Redlands deal. The city plans to build the $7 million, 23-acre facility entirely on public land, using public money, including a $5.25 million grant from the state and revenues from a local development impact fee. Big League Dreams supplies the basic design concept, but otherwise stays out of the construction process. By doing so, the company avoids what are the most difficult aspects of real estate development: land assembly, entitlement and construction finance. When construction is finished next year, the company will have a facility that was built to its specifications and a 40-year contract to operate it. At that point, the city becomes almost a passive partner. But that is acceptable to the city because it expects to make money as revenues grow. Redlands will pay a one-time $300,000 licensing fee to Big League, plus an additional $300,000 annual operations fee for the next 40 years for maintenance. Additionally, the city will pay the company an "incentive fee" that is due if Big League Dreams achieves revenue goals. The incentive fee ranges from $2,203 in Year 3 to $445,527 by Year 40. On its own account, the city expects net income (that is, after expenses and fees) to start at $126,512 by Year 3 and rise impressively to $1.19 million by Year 40. While that is not a huge sum, it does equal the amount of sales tax revenue the city would receive from a medium-sized retailer. These revenues will not be achieved by squeezing fees out of a captive public, according to Big League Dreams' Odekirk. He contends that people will pay no more to rent softball diamonds at the sports complex than they otherwise would have paid to the local parks and rec department to rent a publicly operated field. Instead, most revenues come from fees paid by adult softball teams and from corporate sponsorships for both youth sports and softball teams. Big League Dreams even employs full-time fundraisers to elicit sponsorships from local businesses and corporations. The city does what it does best— financing and building public works projects — while the private company does it what does best — running and promoting a business. Assuming that Big League Dreams can make its numbers, the deal works well for both sides. I do not pretend to understand the risks, although the popularity of youth sports and amateur athletics suggests that sports clubs have a market. If the risks are tolerable — and for the foreseeable future they may be — then the civic rhinoceros of Redlands may be content to carry this little bird on its back.

WASHINGTON _ A U.S. Supreme Court decision tentatively upholding a Los Angeles zoning ordinance banning multiple adult businesses at the same location left lawyers for both sides predicting victory at an eventual trial. The high court's 5-4 decision reversed a ruling by the Ninth U.S. Circuit Court of Appeals in favor of two businesses that ran afoul of the 1983 ordinance by operating X-rated bookstores and video arcades under the same roofs (see CP&DR Legal Digest, September 2000). The Supreme Court ruled the city could "reasonably rely" on a six-year-old study of crime rates as a basis for adopting the ban on multiple adult businesses. "It is rational for the city to infer that reducing the concentration of adult operations within a neighborhood, whether within separate establishments or in one large establishment, will reduce crime rates," Justice Sandra Day O'Connor wrote in the plurality opinion. An attorney who filed an amicus brief supporting the city ordinance on behalf of the American Planning Association said the ruling allows cities to continue adopting regulations on adult businesses. "But," said Scottsdale, Arizona, lawyer Scott Bergthold, "they're going to have to defend second effects rationales more vigorously than they have in the past." At issue was whether the city had enough proof that the combination of ostensibly separate adult businesses contributed to crime and prostitution for the city to approve the regulation. A federal judge in Los Angeles and then the Ninth Circuit both said no. But those rulings came in summary judgments issued without a full trial. In the high court's May 13 decision, five justices said the city had at least enough evidence to survive summary judgment and deserved a full trial. But in a pivotal concurring opinion, Justice Anthony M. Kennedy said the ordinance might still be struck down if the city's rationale "can be proved unsound at trial." Michael Klekner, a deputy Los Angeles city attorney, voiced confidence that the city's "substantial" evidence will hold up during a full trial and likely appeal. "I've always thought that if we got to trial, we would prevail," Klekner said. But John Weston, who represented the two businesses, said the court's fractured ruling will require courts to "engage in meaningful scrutiny and evaluation" of local zoning ordinances limiting location of adult businesses. "From the standpoint of First Amendment law, the opinion is quite extraordinary and remarkable," Weston said. Los Angeles set out to limit the concentrations of X-rated businesses in Hollywood with a zoning ordinance adopted in 1978 that prohibited adult entertainment establishments within 1,000 feet of each other or within 500 feet of a school, park, or religious institution. Five years later, the city closed what it called a loophole in the original ordinance by adding a provision specifically prohibiting more than one adult entertainment business in the same building. Adult zoning ordinances have been widely enacted in California and elsewhere since the Supreme Court gave them a constitutional green light in a pair of decisions: Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), and Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). Both decisions upheld adult zoning ordinances — by 5-4 and 6-3 votes, respectively — on the ground that they helped cities combat "undesirable secondary effects" of X-rated businesses without infringing too much on expression protected by the First Amendment. In enacting its ordinance, Los Angeles relied on a police department study in 1977 that found robbery and prostitution had grown much faster in Hollywood than in the city as a whole. The city did no additional study before enacting the 1983 ordinance amendment. The city enforced the multiple-use ban in 1995 against two businesses that ran combined bookstores/video arcades — Alameda Books and Highland Books. When the shops challenged the ordinance on constitutional grounds, U.S. District Court Judge Dean Pregerson ruled that the ordinance was subject to "strict scrutiny" — the most stringent constitutional standard of review — and that the city had failed to show a "compelling interest" needed to uphold it. The Ninth Circuit agreed but on a slightly different ground. Unlike Pregerson, the Ninth Circuit panel ruled that the law was "content-neutral" and was subject only to "intermediate scrutiny." But the panel still found the city's evidence insufficient to uphold the ordinance even under the less stringent standard. The high court's plurality opinion said that the city did have a "substantial interest" in enacting the multiple-use ban and that it could "reasonably rely" on the 1977 study in attributing increased crime and prostitution to multiple-use adult establishments. The court's three most conservative members joined O'Connor's opinion: Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas. In an opinion concurring only in the judgment, the centrist-leaning conservative Kennedy tentatively agreed. "Dispersing two adult businesses under one roof is reasonably likely to cause a substantial reduction in secondary effects while reducing speech very little," Kennedy said. At the start of his opinion, however, Kennedy set out what Weston said amounts to a significant tightening of the test for upholding adult zoning laws. "A zoning measure can be consistent with the First Amendment," Kennedy wrote, "if it is likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech." Said Weston, "If the reduction in speech is anything more than trivial, it's no good. That's quite remarkable." Two lawyers who advise cities on the issue, however, saw less evidence of a shift in the decision. "The plurality's opinion goes out of its way to say that it's not changing the law," said Jeff Goldfarb of Rutan & Tucker in Costa Mesa. As for Kennedy's opinion, Goldfarb said Weston was "incorrect" if he was suggesting that an adult zoning ordinance can be upheld only if it is "the least restrictive means" available to serve the city's interest. According to Bergthold, who wrote the APA brief, "the final standard is somewhere in between" the O'Connor and Kennedy opinions. For the dissenters, Justice David H. Souter said the city's 1977 study "provides no support" for breaking up what he called "a commercially natural, if not universal" combination of adult businesses. Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer joined his opinion. The Case: City of Los Angeles v. Alameda Books, Inc., No. 00-799, 02 C.D.O.S. 4067, 2002 DJDAR 5167. Filed May 13, 2002. The Lawyers: For City of Los Angeles: Michael Klekner, deputy city attorney, (213) 485-5420. For Alameda Books: John Weston, Weston, Garrou & Dewitt, (310) 442 0072. Kenneth Jost, formerly editor of the Los Angeles Daily Journal, is staff writer for Congressional Quarterly and author of The Supreme Court Yearbook.