WASHINGTON _ The U.S. Supreme Court's latest take on takings law is getting two cheers from landowners and property rights advocates and grudging acceptance from land use regulators and environmentalists. "An excellent decision," says James Burling, an attorney with the Pacific Legal Foundation in Sacramento who represented the Rhode Island landowner, Anthony Palazzolo, in the case. "We're very happy with it." "A useful advance in the law," says Michael Berger, of Santa Monica's Berger & Norton, who has built a career representing developers and landowners in takings cases. "The court is continuing the concerns that it expressed a couple of years ago that landowners are being jerked around by regulators." But Rhode Island Attorney General Sheldon Whitehouse saw the outcome very differently. "The important point is, under the theory Mr. Palazzolo pursued, he lost and he lost flat out," Whitehouse told the Associated Press. "More of a muddle," observes Richard Frank, California's chief assistant state attorney general and the office's leading expert on land use law. He says the ruling will lead to "more fact-based inquiry" in individual cases and "more uncertainty for state regulators, property owners, and the interested public." "Everybody won a partial victory," Frank adds, "and those on either side who might claim full victory are mistaken." The high court's ruling in Palazzolo v. Rhode Island reinstated a takings claim by an 80-year-old, retired auto wrecker over a state agency's refusal to allow him to fill wetlands on an 18-acre tract in the coastal town of Westerly. The high court threw out two procedural hurdles that Rhode Island courts had thrown in front of Palazzolo. Contrary to those courts, the U.S. justices voted 6-3 that Palazzolo's claim was legally "ripe." And by a 5-4 vote, the high court held that he could bring a claim even though he acquired legal title to the land after the state's adoption of wetlands protection regulations. But the high court agreed with the Rhode Island Supreme Court that Palazzolo had failed to show a "total deprivation" of the value of the property because he could build a house worth at least $200,000 on an upland part of the site. On that basis, the justices remanded the case to Rhode Island courts to give Palazzolo a chance to seek compensation under a test that gives judges more flexibility to reject a takings claim. Property rights advocates disagree among themselves about which of the two procedural rulings was more important. Berger points first to the ruling on the ripeness issue, which he said showed the justices wanted to "examine what's really going on here and not worry so much about how many specific applications were made for what particular uses, how detailed the applications were, and so on." But Burling gives greater weight to the court's ruling on the so-called "notice rule"— the view in some cases that a landowner cannot claim a taking because of regulations already in place at the time of property acquisition. "The Supreme Court put an end to the notion that purchasing previously regulated property means that you have no right to challenge those regulations or the applications of those regulations," Burling says. For his part, Frank viewed the ripeness decision as the more important of the two setbacks for regulators. "They seem to be signaling some general discomfort with the harsher applications of the ripeness rule," says Frank, co-author of the 1999 book The Takings Issue . As for the notice rule, Frank emphasizes that the justices' separate opinions indicate division on how to evaluate a takings claim based on pre-acquisition regulations. For the majority, Justice Anthony M. Kennedy decisively sided with property rights advocates on that issue. Under the state's argument, Kennedy said, "the postenactment transfer of title would absolve the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable." The court's four other conservatives joined that part of Kennedy's opinion: Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas. In a concurring opinion, however, O'Connor said the opinion did not mean that the timing of a regulation was "immaterial" to a taking claim. That prompted Scalia to write his own concurring opinion, saying that the timing of the regulation should have "no bearing" on compensation. The four liberal-leaning justices all indicated that a landowner typically could not claim a taking for a pre-acquisition regulation — including Justice John Paul Stevens, who sided with the conservatives on the ripeness issue but would have barred Palazzolo's claim anyway. Any taking, Stevens wrote, "occurred before became owner of the property." The muddled decision reflected the muddled facts of Palazzolo's case. He bought the property in 1959 with another investor as part of a closely held corporation. The corporation was dissolved in 1978 for failure to pay taxes, and legal title passed to Palazzolo individually. By that time, Rhode Island had created the state's Coastal Management Council with a statutory charge in part to protect coastal wetlands. Twice, the council turned down Palazzolo's applications to fill the wetlands for development, in 1983 and 1986. In their rulings, Rhode Island courts concluded that the council had not rejected all possible development on the site and specifically noted that at least one house could be built on part of the property. But Palazzolo sought $3 million in damages, claiming that he could have built up to 74 houses on the site but for the state regulation. In his opinion, Kennedy said the council's decisions "make plain that the agency interpreted its regulations to bar from engaging in any filling or development activity on the wetlands." For the dissenters, however, Justice Ruth Bader Ginsburg said, "The prospect of real development shown by the State warranted a ripeness dismissal." Justices David H. Souter and Stephen G. Breyer joined her opinion. All nine justices agreed that Palazzolo's ability to build at least one house on the property knocked out his "total taking" claim under the Supreme Court's decision in Lucas v. South Carolina , 505 U.S. 1003 (1992). But the majority said Palazzolo was entitled to a chance to show that a taking occurred under a multipart test laid down in another case, Penn Central Transportation Co. v. New York City , 438 U.S. 104 (1978). The ruling instructs courts to consider several factors in weighing taking claims, including the property owner's "reasonable investment-backed expectations" as well as the public purpose of the regulation. Attorneys on both sides of the issue agree that Palazzolo faces an uphill battle in Rhode Island courts. "We are dealing with a court system that in the past has been a little recalcitrant in embracing the taking doctrine," says Burling. Frank is blunter: "I would be very surprised if the state of Rhode Island lost on remand." In California, too, one leading expert cautions landowners against finding great encouragement in the ruling. "The bottom line, in California at least, is that we've only had two cases that have found a taking after you've gotten over ripeness," says Daniel Curtin, of McCutcheon, Doyle, Brown & Enersen in Walnut Creek and author of Curtin's California Land Use and Planning Law . "Even though it might be easier for to get into court, you still have to prove you have a taking and that's still an uphill battle." The Case: Palazzolo v. Rhode Island , No. 99-2047, 01 C.D.O.S. 5439, 2001 DJDAR 6685. Filed June 28, 2001. The Lawyers: For Palazzolo: James S. Burling, Pacific Legal Foundation, (916) 362-2833. For Rhode Island: Michael Rubin, Office of Attorney General (401) 274-4400. Kenneth Jost, formerly editor of the Los Angeles Daily Journal, is staff writer for Congressional Quarterly and author of The Supreme Court Yearbook.

Two Southern California redevelopment agencies have lost separate lawsuits over the allocation of property tax revenue from redevelopment project areas. In the first case, the Second District Court of Appeal ruled that Los Angeles County can withhold from a redevelopment agency the cost of administering property taxes, and that the amount of money withheld should be counted against a redevelopment project area's maximum allowable tax increment. In the second case, the Fourth District Court of Appeal ruled that the Santa Ana Unified School District is entitled to its share of the 2% inflationary increase in property tax revenues from an Orange County redevelopment project area even though the school district did not request the money until 10 years after the redevelopment project was adopted. At issue in the case from Los Angeles was approximately $5.2 million that the Los Angeles Community Redevelopment Agency (CRA) argued has been — or will be — illegally diverted by the county. The city's argument failed at both the trial court and appellate court levels. The case centered on interpretation of a law that allows counties to bill other government entities for the cost of various administrative functions, such as collecting property taxes. The Legislature first approved of such funding schemes in 1990. In 1994, the Legislature enacted Revenue and Taxation Code § 95.3, which provided for "property tax administrative funding" or "property tax administrative fees" or simply "PTAF." Los Angeles County relied on § 95.3 subdivision (b)(1) to deduct its costs of administering property tax collections for the CRA. The CRA argued that this deduction was improper. The CRA also argued that the amount the county deducted for administrative purposes should not count against a project area's tax increment cap. The city argued about the effects on three redevelopment project areas: Pico Union, with a lifetime cap of $14 million in tax increment; Crenshaw, with an annual cap of $500,000; and the Central Business District, with a lifetime limit of $750 million. The Pico Union project area hit its cap in 1994, at which time CRA ceased receiving tax increment. However, the county determined in 1996 that the city owed it an additional $107,000 for administration of Pico Union project area taxes, so the county deduced that amount from subsequent allocations to the CRA. The county also deducted $67,000 for administering the Crenshaw Plan for three years during the mid-1990s when the project area hit its annual tax increment ceiling. When the Central Business District project area hits its ceiling in either 2003 or 2004, the county will have withheld about $5 million in administrative fees. The city argued that the county was impermissibly reallocating property tax revenue to itself, and that the way the county implemented the PTAF violated the state constitution. But the Second District disagreed, saying the county's procedure is "exactly" as prescribed by § 95.3 (b)(1). "The plain language of the statute here permits County to deduct the PTAF from CRA's tax increment allocation and is in harmony with the legislative intent to allow counties to cover their administrative costs," Presiding Justice Roger Boren wrote for the unanimous three-judge panel of the Second District, Division Two. "To follow CRA's interpretation of § 95.3 would allow redevelopment agencies with capped plans to avoid those costs." The court cited Arcadia Redevelopment Agency v. Ikemoto, (1993) 16 Cal.App. 4th 444 (see CP&DR Legal Digest, July 1993). In that case, the City of Arcadia argued that the PTAF violated Article XVI, § 16 of the state constitution, which protects a redevelopment agency's tax revenue. But the court in Arcadia said the Legislature can alter the levying and collection of taxes from redevelopment projects if the Legislature treats other taxes in the same manner. "Whether a redevelopment agency's tax revenues are reduced by a proper alteration of the levy and collection of taxes or by a charge for administrative costs, the principle is the same," Boren wrote. "The Legislature is so empowered as long as it acts with an even hand. … We explicitly approve and adopt the rationale of the Arcadia opinion." The court also said the deductions should count against a redevelopment project's revenue limit. "A redevelopment agency ultimately pays all of its financial obligations from its tax revenue allocations. The PTAF is a proper obligation and payable to the county administering and collecting the taxes," Boren wrote. The Orange County case was significantly different, but the outcome was still a loss for the redevelopment agency. In 1996, the Santa Ana school district Board of Trustees approved a resolution electing to receive its portion of the 2% inflationary increase in property taxes from within the Santa Ana Heights Redevelopment Project area. The county, which runs the redevelopment project, refused to give up the revenue. The county said the school district should have made such a request before the county adopted the redevelopment plan in 1986. In 1999, the school district sued, saying that the 2% should be automatically allocated. Superior Court Judge David McEachen ruled for the school district and ordered the county to pay about $90,000 — the district's share of the 2% increase for 1996 through 2000, plus 8% interest — and to continue paying the school district its share of the 2% increase until the redevelopment project expires. The unanimous three-judge panel of the Fourth District, Division Three, upheld the decision. The case turned on the interpretation of Health and Safety Code § 33676. Before the Legislature amended that section in 1984, the law said that, prior to adoption of a redevelopment plan by a legislative body, any taxing agency may elect to receive its portion of 2% tax increases from within a redevelopment area. The 1984 amendment said that every school district "shall elect" to receive those revenues. Orange County argued that the Santa Ana school district lost the right to the money because it failed to make the election prior to the county's adoption of the redevelopment plan. The appellate court disagreed. "The amended language at issue here removes plaintiff's option to elect; it requires the election, reflecting the intent that school districts are to be paid the funds," Justice William Rylaarsdam wrote for the court. The county's emphasis on the timing of the election missed the "overarching purpose" of the legislative amendment, the court held. "The change from permissive to mandatory election only reinforces the conclusion that the Legislature's objective was to require that the funds be paid," Rylaarsdam wrote. A 1993 amendment (part of the much broader AB 1290 redevelopment reform) strengthens this interpretation, the court ruled. That amendment eliminated the "elect" language so that the statute simply says school districts "shall be allocated" their share of inflationary property tax growth. The appellate court also rejected the county's argument, supported by the California Redevelopment Association, that the school district's claim was submitted so late that the county could not adequately defend against it, and that the claim would upset the redevelopment agency's "financial apple cart." The court said that the county had not produced evidence that its defense was harmed by the timing of the claim, and that the county presented no evidence that its contracts with bondholders would be impaired. First Case: Community Redevelopment Agency of the City of Los Angeles v. County of Los Angeles, No. B136115, 01 C.D.O.S. 4466, 2001 DJDAR 5466. Filed May 31, 2001. The Lawyers: For CRA: Ronald Low, deputy city attorney, (213) 977-1802. For the county: Thomas Tyrrell, principal deputy county counsel, (213) 974-1880. Second Case: Santa Ana Unified School District v. Orange County Development Agency, No. G027331, 2001 DJDAR 6835. Filed June 29, 2001. The Lawyers: For the school district: Wendy Wiles, Bowie, Arneson, Wiles & Giannone, (949) 851-1300. For the county: Ward Brady, deputy county counsel, (714) 834-3300.

The University of California is preparing for a tidal wave of new student enrollment in the next decade, and the question of where students will be housed is one that the university continues to grapple with. Under a systemwide increase now underway, the University of California expects to add 60,000 students to its nine-campus system by 2010. UC Merced, the system's tenth campus, is expected to open in 2004 as home to 4,000 additional students. This enrollment growth, driven by the state's population surge, places even more stress on a student housing system that is already overloaded. For years, individual campuses have struggled to add housing, often facing criticism from local jurisdictions over their methods. In January, for example, UC Santa Cruz leased a Holiday Inn for 10 years to provide student and staff residences, depriving the City of Santa Cruz of $500,000 in annual transient occupancy tax revenue. The University system has also faced opposition over environmental issues from communities that did not want to grow, as has occurred in recent years over proposed housing at UC Santa Barbara. Taxpayers are not expected to finance UC housing under current state policy, according to UC spokesman Chuck McFadden. "The university does understand there is a serious problem in providing student housing," he said. "It is particularly tough at UC Berkeley and UCLA," which have the largest enrollments of the UC campuses. All campuses, McFadden said, have to be aware of their relationships with local communities, many of which do not want the campuses to grow further, and which expect universities to honor long-range development plans that limit university development. In a shift toward finding systemwide solutions, a 20-member task force was appointed this year to look at ways to make housing more available for students, senior staff members and faculty. Chaired by UC Senior Vice President Joseph Mullinix, the committee began meeting in May and is expected to produce recommendations by the end of the year. The task force is made up primarily of UC students, faculty, UC administrators and campus administrators. Mullinix has asked the task force to study ways the university can work with third parties more frequently to provide housing, and to provide financial assistance to those who purchase houses. McFadden and Sam Morabito, a UCLA associate vice chancellor who sits on the task force, said it is too early to tell what recommendations the task force will come up with. But Morabito said he did not think a statewide bond measure would be a viable option for funding. Rates of growth by 2010 will vary by campus, with some of the smaller campuses taking on substantially more students than larger ones. UCLA, which currently has about 36,000 students, is expected to grow by 4,000 students during the next decade. In contrast, UC San Diego's student body of 20,000 is expected to increase by 50% during that period. During the past 15 years UCLA has been transforming the school from a predominantly commuter school to one where most students live on campus or nearby. The school has met its goal of getting 50% of the student population either to live on campus or to live within walking distance, Morabito said. UCLA is located in one of Los Angeles's most expensive areas, and new housing construction is limited. UC San Diego, in contrast, benefits from an abundance of rental housing within five miles of its campus. "Compare this to UCSB, UCSC, UCB and even UCLA where the market is completely gone," said Dolores Davies, a spokeswoman at UC San Diego. And while UCSD prepares to build more housing (a 1,240-bed dorm expansion is due to open in 2003, with apartments planned at later date), Davies noted there have been swings in the market before. "As late as 1993, we had vacancies in our residence halls," she said. More students usually means more traffic. At UCLA, the school has a transportation agreement with the City of Los Angeles that caps the number of trips into the campus, according to Morabito. The school is meeting the agreement with vanpools and carpools, and by encouraging public transportation ridership. At UC Berkeley, the administration is seeking innovative ways to meet UC's mandated increase in student population while still honoring a 1989 agreement with the City of Berkeley to cap enrollment, according to Dennis Hengstler, executive director of planning and analysis at UC Berkeley. The city has a love-hate relationship with the university: It loves the school but hates the impacts. Under an agreed-upon system UC Berkeley uses to count students, there were 29,979 students on campus during the 2000-2001 school year. But under the 1989 agreement, the student population is supposed to decrease to 29,450 students in the 2005-2006 school year. At the same time, UC guidelines call for the school to grow from 27,000 students in 1998 to 31,800 in 2010. One way to accommodate more students is to promote the education abroad program, which allows students to study in other countries. Also, under the pending state budget, the UC system would receive up to $54 million to pay for summer school programs at UC Berkeley, UCLA and UCSB, Hengstler said. Summer school has always been self-supporting, with students paying higher academic fees. But if the state money is allocated, the cost of summer school would go down, and more students are expected to attend. Those students who attend summer school would then be counted towards each campus' enrollment growth, he explained. Traditionally, more housing is available on and near UC campuses during the summer, as many students leave town. UC Berkeley does continue to work on new housing projects, Hengstler noted. But like the area near UCLA, there is little available land. And land use changes in Berkeley are frequently resisted by students and local residents. Many of the UC officials interviewed said their highest priority is to provide housing to any entering freshman or transfer student to ease the transition into university life. However, many entering students decline university offers for housing. UC San Diego, for example, housed 33.9% of its undergraduate and graduate students last fall, which placed it second in the UC system. UC Santa Cruz was the leader, housing 47% of its student population. Contacts: Chuck McFadden, spokesman for University of California (510) 987-9193. Dolores Davies, senior communications officer, UC San Diego, (858) 534-5120. Sam Morabito, associate vice chancellor, Business and Finance Services, UCLA (310) 794-6000. Dennis Hengstler, executive director of planning and analysis, UC Berkeley, (510) 642-5561.

California is the land of wide-open spaces. And everybody moves here from the East Coast to get away from those big, crowded cities. Right? Not anymore. In some ways, California is just as crowded as � or maybe even more crowded than � the East Coast. And it's only going to become more so during the decades ahead. That is the conclusion reached by CP&DR's sister organization, Solimar Research Group, in a report prepared for the Bookings Institution Center on Urban and Metropolitan Policy. The report, "Who Sprawls Most?" concluded that there are significant differences in how metro areas in different parts of the country use land. The report measured "density" at the level of the metropolitan area, and defined density as the population (extrapolated from Census figures) divided by the amount of urbanized land (as estimated by the National Resources Inventory). The report examined trends as of 1997, as well as change between 1982 and 1997. As the map of Metropolitan Statistical Areas and Consolidated Metropolitan Statistic Areas shows, California is � surprisingly � one of the most densely populated places in the country. In fact, Los Angeles replaced New York as the densest metro area on the continental United States between 1982 and 1997. San Diego, the Bay Area, Monterey-Salinas, Visalia, and Modesto were all among the 15 densest metro areas in the country in 1997. The density change statistics between 1982 and 1997 are even more startling. Nationally, metropolitan densities dropped 20% during this period � from about 4.5 to 3.9 persons per urbanized acre. In most of the country � the East, Midwest, and South � metro areas saw about one acre of land urbanized for each new resident � even in places like New York. In California, however, the story is different. The density in 1982 was about 7 persons per urbanized acre � and it stayed that way through 1997. California is just more dense than the rest of the nation. If this conclusion does not make intuitive sense, try thinking about the metropolitan edge rather than the center. New York is extremely dense at its core, but it is very sprawling at the edge, which is an endless parade of 5- and 10-acre lots. California is different. Most new suburban development � even projects on the edge � are built at the familiar 6 to 8 units per acre. In New York, if you travel 60 miles away from the city center you get a bigger lot. In California, by contrast, all you get is a cheaper house, but on the same size lot you would find in the central city. The report can be found at www.solimar.org and www.brook.edu/urban.

A developer who lost his ownership interest in a piece of property had no standing to seek a court order forcing a county to recognize a 19th century subdivision of the property, the Second District Court of Appeal has ruled. A unanimous three-judge panel of the Second District, Division Six, overturned a trial court's writ of administrative mandamus in the case. In 1995, Jack Munari applied to the San Luis Obispo County planning department for 577 certificates of compliance for 834 acres of range land near Paso Robles. In 1889, a subdivision map for the property had been filed with the county clerk, but the site was maintained for agriculture. In July 1996, the planning department rejected the application, saying the 1889 map did not create separate parcels under the Subdivision Map Act. Planners said they would allow only 135 lots to be developed. Munari appealed to the Board of Supervisors, which upheld the planning department in January 1998. The following month, Munari filed a lawsuit requesting declaratory relief, a writ of administrative mandamus, and compensation for inverse condemnation and violation of his civil rights. Four days after filing the suit, however, Munari lost the property in a foreclosure sale to William Zappas, a lienholder. Zappas then intervened in the suit and assigned the action to the Weyrich Development Company. Weyrich proceeded to settle with the county for 146 lots and dismissed the action. However, nearly three years after Munari lost the property, San Luis Obispo County Superior Court Judge Jeffrey Burke granted Munari's motion for summary adjudication on his mandamus and declaratory relief claims. Judge Burke said that the 1889 subdivision map created valid lots under the Subdivision Map Act and the county was obliged to issue 577 certificates of compliance. The appellate court, however, never reached the merits of the case. " mortgage foreclosure," Justice Arthur Gilbert wrote for the court, "divested Munari of all interest in the property prior to completion of judicial review of the administrative action. This makes it impossible for Munari to receive relief." "Moreover," Gilbert wrote, "Munari's successor-in-interest has settled with the County. It is undisputed that the settlement requires the County to issue significantly fewer certificates than the 577 certificates Munari sought." Munari argued that the trial court only ordered the county to vacate its position. Thus, should Munari reacquire the property, he would be entitled to the certificates of compliance. But the court refused to make such a hypothetical determination. "Under Munari's reasoning, a stranger to these proceedings could make the claim that he or she may someday acquire the subject property and, therefore, is entitled to petition for mandamus, " Gilbert wrote. "Hope springs eternal, but writ relief is temporal and requires firmer substance." The Case: County of San Luis Obispo v. Superior Court, No. B147202, 01 C.D.O.S. 5520, 2001 DJDAR 6739. Filed June 28, 2001. The Lawyers: For the county: Raymond Biering and Rita Sciaroni, deputy county counsels, (805) 781-5400. For Jack Munari: William Walter, (805) 541-6601.

While finger-pointing and chest-thumping have been California politicians' most visible reactions to the latest version of the energy crisis, a few local governments are slowly emerging as leaders in addressing the new energy crisis. The most aggressive of these agencies are going beyond simple conservation programs and actually using their existing facilities as alternative energy power generating locations. And some are seeing that by being leaders in alternative energy production, they can gain competitive advantage in all things civic. The newfound zeal to conserve and produce locally is not really new. Back in the 1970s, California took an aggressive approach to the first energy crisis. Under Jerry Brown's administration, the state constructed an elaborate tax incentive program that rewarded property owners who retrofitted with solar collectors or other devices. The state passed Title 24, one of the most energy-conserving construction codes in the world. A host of local governments passed solar access protection ordinances, and building orientation became a staple of site planning. On all fronts, conservation and personal responsibility were emphasized in policy discussions and they permeated the public consciousness. But government lost interest. In the post-Proposition 13 era, the emergence of corporate models of governance came into vogue. A series of less environmentally oriented governors and their colleagues in the Legislature even phased out the tax breaks for solar collectors and other energy-saving features. The trend of purchasing more fuel-efficient vehicles — and corresponding state regulations requiring fuel efficiency — stalled. Energy conservation dropped away from public discussions. And finally, deregulation was passed. The seeds of our current crisis were sown. But the harvest may not be entirely bitter. Pat Stoner, resource conservation specialist with the Local Government Commission, is optimistic about local government's potential. "I think they are doing more than we give them credit for," he said. Nevertheless, one must concede that we could count on two hands the number of cities and counties in the state that are committing themselves to finding their own solutions to the energy problem. Not surprising on the list of proactive local governments is the City and County of San Francisco, which is tackling the difficult problem of reducing energy demand at small businesses. Most small businesses rent their digs and therefore have a disincentive to invest in lighting and energy retrofits. Whereas large utility companies in the state have managed energy retrofit programs for their largest customers for some time, San Francisco sought and received an $8 million grant from the state Public Utilities Commission to launch their "Power Booster's" program. The program will fund free energy use audits for 6,000 small businesses and retrofit up to 4,000 of them with energy-efficient lighting. The energy savings will be significant. Small businesses are estimated to consume 22% of the power in the city, and the projected savings of 24 million kilowatt hours annually is expected to provide enough power for 12,000 San Francisco residences. San Francisco is also planning to expand its role in the power production business. As of late July, the San Francisco Board of Supervisors was considering placing a charter amendment before the voters to enable city's municipal utility to invest in solar and other renewable energy infrastructure. City officials see an opportunity to level the playing field with the traditional energy provision utility companies by (1) guaranteeing the purchase of a stable amount of energy from renewable sources and (2) directly supplying a portion of the city's own demand through a vast retrofit program of public buildings. The initiative could go before San Francisco's voters in November. Meanwhile, Alameda County just completed a $4 million solar panel retrofit project for the Santa Rita jail in Dublin. The 4,000-panel system will cut energy demand for the facility by 20% — a savings of $300,000 per year. And things are happening in other parts of the country, too. Most ambitious is Chicago's program. The Windy City has adopted a measurable goal that is both ambitious and admirable: Within five years, 20% of the city's electricity for all public uses – from elevated trains to elevators – will be provided by renewable resources. To help meet the goal, Chicago has teamed with the state and a major utility to build a solar power generating station in nearby Lake Calumet. Chicago officials say that such initiatives will enable Chicago to become one of the largest "green" cities in the world. Many economic development professionals believe that by simply committing to such policies, cities like Chicago gain important competitive advantages. By showing leadership in resolving infrastructure problems while supporting emerging technologies such as green energy, such localities position themselves as problem-solving initiative takers. That is a good reputation to have if a community wants to develop a range of human cultural endeavors, including business. Stephen Svete, AICP, is president of Rincon Consultants, Inc., a Ventura-based consulting firm.

Here is a twist on the familiar story of neighborhood groups negotiating with developers: The two sides did not limit their discussion to traffic congestion. On the table were a surprisingly wide array of social and environmental concerns, including hiring guarantees, wage levels, job safety and affordable housing. The story becomes even more interesting when we become aware of who was sitting at the table: On one end was LA Arena Land Company, a company whose principals include three billionaires: Los Angeles developer Ed Roski Jr., railroad and multiplex magnate Philip Anschutz, and media übermensch Rupert Murdoch. On the other side of the table was a coalition of neighborhood groups, environmental groups and labor unions representing thousands of poor people who live near the arena. In short, the negotiations, which concluded in May, took place between some of the wealthiest people in the country and some of the poorest. Under the resulting deal, the business moguls promise to hire local residents for the majority of permanent jobs to be provided by the project, pay workers $7.72 per hour with benefits, or $8.97 without them, build at least 160 units of affordable housing, provide a fund for parks, create a "preferential parking district" for local residents and serve up a host of other community advantages. The working poor who live near the glitzy sports arena could use some benefits. The novelist William Faulkner could have been writing about Los Angeles's working class, Spanish-speaking neighborhoods when he wrote the famous sentence: "They endured." Specifically, the low-income residents of downtown Los Angeles endure unskilled or semi-skilled labor jobs and low wages, and indifferent public transit. Politically atomized and outwardly timid, they do not seem to attract attention of the general public, except when gang violence threatens to spill over neighborhood lines. The $300 million Staples Center has been very successful for its owners, and perhaps its fans, during its two years of existence. Situated next to the Los Angeles Convention Center, Staples Center is home base to five professional sports franchises, including the Los Angeles Lakers. The facility also hosted the Democratic National Convention last summer. For people who live in the immediate neighborhood, however, Staples Center has been a swift pain. Parking is unavailable on game nights, and renters find themselves slapped with $60 parking tickets, "which is pretty major for a garment worker making below minimum wage," said Sandra McNeill, an organizer with Strategic Actions for a Just Economy (SAJE), a nonprofit group that works with poor people. One parent complained that she was unable to transport an asthmatic child to the hospital because post-game traffic was so thick. The lowest point came during the political convention, when some local residents found themselves prevented from entering their own homes by riot police. Community leaders began assembling their coalition in May 2000, shortly after reading in the Los Angeles Times that a Los Angeles City Council committee was already studying a $1 billion expansion to the Convention Center-Staples Arena juggernaut. LA Arena Land wants to build a 45-story convention center hotel, a 7,000-seat theater, and an undetermined amount of retail space on two shopping streets that will flank the sports arena. The city, for its part, wants to expand the 1 million-square-foot Convention Center by another 250,000 square feet and two build two high-rise apartment towers with a total of 800 units and possibly another hotel, as well. The project has been described in the real estate trades as "the biggest mixed-use project ever proposed for downtown" Los Angeles. The core group of what would become the Figueroa Corridor Coalition for Economic Justice was SAJE and Hotel Workers and Restaurant Workers Local 11. The latter group is one of the most active labor organizers in Los Angeles, with on-going labor actions against hotels in downtown Los Angeles and Santa Monica. The coalition was later joined by a number of other groups, including Esperanza (a community-based non-profit home builder), Los Angeles for a New Economy (another local group concerned with working conditions), and a local chapter of Environmental Defense. The fledgling coalition called for a meeting with then-City Councilwoman Rita Walters, who in turn arranged a meeting with the developer. The first meeting, in September 2000, did not go smoothly, however. LA Arena president Tim Leiweke, who is also president of the Kings hockey franchise, was scheduled to meet with a group of organizers and local residents. Although a group of staff people showed up to represent the developer, Leiweke was not among them. A number of people apparently felt snubbed, and the meeting became raucous, some people directing angry comments to Leiweke's conspicuously empty chair. Things improved the following month when Leiweke handed off the negotiations to senior vice president Ted Tanner, a former executive with Catellus and someone with more community-relations experience than the sports executive. Tanner had the grace to read his presentation entirely in Spanish, which he does not speak, and what he lacked in pronunciation was compensated by goodwill. At this point, the negotiations took on a positive tone, and the activists set forward a remarkably detailed set of demands on wages, housing, work and even open space for local residents. In May, the developer and the neighborhood groups arrived at a set of concessions. "We didn't get everything we asked for, but we achieved a really solid agreement, and we were really pleased," SAJE's McNeill said. Tanner could not be reached for this article, but we suspect that "doing the right thing" was not the only factor behind the concessions. The developer is reportedly expected to ask for a $75 million subsidy from the city, and the strong support of the neighborhood — and the councilmember from the district — may sway an otherwise skeptical City Council. Politically calculated or not, this set of concessions seems remarkable for the emphasis on what could be called the "quality of daily life," as well as the familiar mitigations for environmental impacts. Projects like Staples Center, which occur in a dense, urban context, have many human impacts. The Figueroa Corridor Coalition has provided a useful index of those impacts, and the way that developers of major projects might respond to the difficulty of building in our ever-densifying cities.

The U.S. Supreme Court will decide a case in which Lake Tahoe property owners allege that a temporary building moratorium amounted to an unconstitutional taking. The Supreme Court likely will hear oral arguments this fall in Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 00-1167. The court agreed to consider only one question from the multi-faceted case: "Whether the Court of Appeals properly determined that a temporary moratorium on land development does not constitute a taking of property requiring compensation under the Takings Clause of the United States Constitution?" The Tahoe Sierra Preservation Council has been in litigation against TRPA, a bi-state agency that oversees development in the Tahoe Basin, since the 1980s. But the Preservation Council, which represents about 450 property owners, has lost four separate rounds at the Ninth U.S. Circuit Court of Appeals. Last year, the Ninth Circuit ruled, among other things, that a 32-month building moratorium which TRPA imposed while adopting a regional plan was not a taking. The Ninth Circuit panel called a temporary moratorium a "crucial planning mechanism." Landowners had argued the moratorium was a taking because it denied "all economically beneficial or productive use of land" while it was in effect. The landowners asked for a rehearing before the whole Ninth Circuit. Five judges voted to hear the case, which was not enough for reconsideration. That caused conservative Judge Alex Kozinski to pen a sharp dissent in which he said the three-judge panel that ruled in the case had overturned the First English precedent that established the concept of "temporary takings." First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987). The Ninth Circuit's ruling was a major victory not only for TRPA, but for a large number of government entities that submitted amicus briefs in the case. A contrary ruling would make government agencies liable for imposing a building moratorium, which would harm good planning, the agencies argued.

The Bay Area town of Hercules has adopted a new plan that city officials hope will allow the town to capitalize on a unique asset: 400 acres of mostly vacant land, some of it with sweeping bay views, situated in the middle of town. Not long ago, city officials came close to simply zoning the property and letting development run its course. Instead, the city has adopted a New Urbanist "district plan" that is designed to turn the area into the town center that Hercules has never had. The plan, which the City Council adopted in July, outlines four different districts — waterfront, central quarter, hill town, and civic center/hospitality corridor. The districts have differing emphases, and a variety of uses is permitted in all. The district plan relies heavily on a design code, which is nearing completion. The design code creates a network of streets that help determine parcel size. There are 12 different types of streets, each with corresponding massing guidelines, build-to lines and architectural requirements. Instead of dictating the permissible uses of each parcel, "what you are really doing is typologically coding the urban areas," Community Development Director Steve Lawton said. Located about 15 miles north of Oakland in Contra Costa County, Hercules has a colorful past as a Gold Rush town. There was no gold in Hercules' hills. Rather, Hercules grew up as a company town for the California Powder Works, one of the world's largest manufacturers of dynamite. An extensive network of narrow gauge rail lines extended from a pier in San Pablo Bay to dispersed buildings where workers handled black powder, nitroglycerine and other volatile materials. By the time the dynamite factory went out of business in the early 1970s, Hercules had become an oil town. Again, there were no resources in Hercules. Instead, a huge oil refinery had become the city's landmark. Because the refinery provided the city with a large amount of sales tax revenue, city officials were satisfied to let the town become a bedroom community and they did not pursue economic development. "The city, as it grew up as a bedroom community, blew it," said Lawton, an 11-year resident and former planning commissioner. "There was no strong business community. It was just a bunch of homeowners. … The normal financial tools of a city, in retrospect, were not grasped." The scene changed when homebuilding stalled and the oil refinery closed in 1992. Many city leaders wanted Hercules to remain a quiet residential community, and City Hall stayed alive thanks to a $30 million cushion of sales tax revenue built up over the years. But projections showed that the city eventually would deplete the sales tax reserve. The need for more revenue combined with proximity to Interstate 80, a lack of shopping, a large piece of vacant land and about 20,000 mostly middle-class residents meant that Hercules was ripe for retail development. The city even made a deal to attract The Home Depot. But some civic leaders, including Lawton, a member of the Congress for the New Urbanism, wanted more than a faceless collection of sales-tax-generating boxes. In 1999, the Planning Commission decided to pursue a district plan for the 426 acres in the center of town. The city's Redevelopment Agency and two major developers, Bixby Land Company and Catellus Development, shared the cost of the $300,000 planning effort. The city hired Dover, Kohl & Partners, a New Urbanist design firm from Florida, to help craft the plan. The city and its consultants examined not just at the land, but also the retail and housing market conditions. In June 2000, the city conducted a 10-day design charrette in which about 400 citizens participated. In December 2000, members of the Planning Commission and City Council toured New Urbanist developments in Florida. The end result was a district plan with tremendous political support. Both the Planning Commission and the City Council voted unanimously for the document. Because the plan only roughly defines permissible uses, what exactly gets built is uncertain. There will be at least 1,500 housing units, a mixed-use town center, some civic facilities, light industry, and extensive retail and service-oriented development. Bixby Land had proposed a "traditional neighborhood development" for the 125-acre Waterfront District before the city became serious about the district plan. Clearly, city officials are excited about Bixby's project, and Bixby is happy to see City Hall take the New Urbanist route. Grading began this spring on the first phase of the Bixby project — a 200-unit single family home subdivision. Rough grading is scheduled to begin later this year on a mixed-use town center of three- to five-story buildings on a hill overlooking the bay. The town center will allow for — but will not mandate — commercial uses on the ground floor and residential uses above, said Bixby project planner David Sargent, of Sargent Town Planning in Ventura. "The point is to make the building types flexible so as the market for different types of residential or office or retail or service uses evolves over time, the buildings can adapt," Sargent said. Future phases of Bixby's waterfront project are a mixed-use village, a mostly residential development, and what has the potential to become the town's new signature — reuse of Hercules Point. The point juts into the bay, providing expansive views of the bayshore and Marin County. Design plans are preliminary, but development will probably involve civic and public uses, as well as some retail, Sargent said. The main street in the planned town center will run directly toward Hercules Point. Also under consideration is reconstruction of the pier, which could provide a ferry station. That would make the Hercules project "multi-modal," as an Amtrak train station — for which the state has committed $3 million — is planned between the new town center and Hercules Point. The city intends to build a large parking lot near the train station, from which it will be a short walk to most of the Bixby project. Lawton said the city avoided the normal planning route. The district plan's environmental document is tiered off the general plan EIR, which assumed a significantly higher buildout. The city's reliance on a design code, rather than a detailed zoning ordinance, means that many uses will be allowed by right and eligible for administrative approval, Lawton said. "We are dramatically compressing the cycle time for entitlement. We are not touching the cycle for project-specific environmental review," Lawton said. Sargent believes Hercules is in an enviable position. "How many cities are there that have an existing, solid population base, a location close to a thriving urban metropolis, and a 400-acre blank spot in the middle? It's just sort of an accident of topography and history — and of the economic pressure to do something with it," Sargent said. Contacts: Steve Lawton, Hercules Community Development Department, (510) 799-8233. David Sargent, Sargent Town Planning, (805) 644-1892. Dover, Kohl & Partners website: www.hercules-plan.org

Regional land use planning efforts appear to be gaining momentum in several portions of California, with San Diego County heading toward a potential "regional authority." Business interests, frustrated that no entity addresses many cross-jurisdictional issues, appear to be a major driver of the regional approaches. Assembly Speaker Robert Hertzberg also has shown himself to be a regionalist, and a commission he appointed last year continues to formulate recommendations. However, many cities, counties and existing councils of government remain skeptical about new regional approaches — especially those that involve tax-sharing, decreased local control and creation of new agencies. Looming large in the background of the regional planning debate is a possible statewide ballot initiative backed by the cities and counties that could lock in property tax levels. More people are talking about the need for regional approaches, but implementation is difficult, said Carol Whiteside, president of the Great Valley Center and a member of the Speaker's Commission on Regionalism. "The thing gets bogged down when you start talking about governance," she said. Elisa Barbour and Michael Teitz of the Public Policy Institute of California, in a paper prepared for the Speaker's Commission, summed up the current system: "The crux of the regional planning problem is how to develop coordinated policies to address problems that are regional in scope in the absence of general-purpose governments operating at a regional scale." Several other states have far more extensive regional — and even statewide — planning systems than California. In this state, single-function agencies and special districts arose after World War II. Those entities have remained in place while proponents of new, multi-function agencies have met stiff resistance from local government and taxpayers groups complaining about a "new layer of government." And no one has dared talk about a state plan since the Jerry Brown administration. The result is a fragmented planning system ill-suited to addressing the state's densely populated regions. Barbour and Teitz identified deficiencies in the current system: "The state-led planning agencies were organized along single-purpose functional lines, and they traditionally have not coordinated plans. Thus, the system is horizontally fractured. The regional agencies have no direct control over local land use, although their policies are often directly related to land use patterns. So the system is also vertically fractured. Local land use decisions often drive the planning process because regional agencies must take local plans and projections as given." Speaker's Commission Moves Forward In announcing creation of the Commission on Regionalism last fall, Hertzberg talked about the "Winchester Mystery House effect" that results from more than 5,000 cities, counties and special districts working independently. Hertzberg, who has shown strong interest in local government, pitched three propositions: "First, the current structure of government in California today is outdated and poorly equipped to deal with many of the issues of the day. Second, the winners in the new economy will be the people — and the businesses — in well-run regions. And third and finally, because the new economy will reward successful regions, it's time for California to give regionalism a new look." Hertzberg tabbed Nick Bollman, president of the California Center for Regional Leadership, as chairman of the new Commission. In July, Bollman said the Commission has taken a different approach than previous panels that tackled the subject. The Commission recognizes that local fiscal certainty is essential for getting good regional decisions, the Commission wants to allow different regions to try different approaches, and the Commission sees no magic bullet answers, Bollman said. He believes the Commission's work will result in legislative proposals this summer. The Commission addressed state-local fiscal issues first because "without the right fiscal signals, all the best intentions about planning are meaningless," Bollman said. In April, the Commission adopted 20 recommendations, many of which drew on the work of previous task forces. Many of the proposals are aimed at keeping the state's hands off local revenues, reducing local government's reliance on sales tax and boosting the share of property tax received by local government. Next on the Commission's agenda was collaborative regional decision-making. Bollman and others believe it is essential to establish outcome goals on issues such as housing and transportation. Then the state needs to facilitate a system in which regions could work toward meeting those goals. This is not an entirely new idea, but the Commission has gone further by suggesting that state agencies have a seat at the regional table. Bollman pointed to Caltrans' extensive participation in Riverside County's process that integrates its general plan, transportation plan and habitat plan as a good model. The Commission might recommend creation of a state-chartered, public-private entity to help manage the realignment of interests around regional strategies. This new entity would monitor progress and might even have dollars to award and the ability to waive regulations, Bollman said. The last piece would be a "new regional governance" that ensures collaborative planning without creation of new regional governments. "This really is about strengthening the ability of local agencies, regional agencies and state agencies to do their jobs better," he said. Whiteside, of the Great Valley Center, is skeptical that legislative proposals emerging from the Commission will get far this year because of the Capitol's focus on electricity. But the Commission does get people talking and it exposes different models — all of which could lead to experimentation by existing agencies. For Whiteside, flexible approaches — and even flexible boundaries — are essential. Housing issues might spread over one area, habitat concerns could have different boundaries, and transportation plans might cover a different area yet, she said. Such flexibility can make things complicated and raise accountability issues, but rigid boundaries make no sense, she said. "The challenge is to make this operate seamlessly because the people don't care about the structure. They care about results," Whiteside said. How much progress the Commission will make remains uncertain, but Bollman believes now is the time. "There appears to be a kind of golden convergence," he said. "It's clear to all of the interest groups that coalesce around these issues that we are in a near crisis mode with regard to planning for the population growth that we will have." Regis Gets Attention in San Diego Legislation last year by state Sen. Steve Peace (D-El Cajon) forced San Diego to reconsider its local and regional planning processes. Peace originally proposed a bill that would have merged five existing entities, including two transportation boards and the port authority, into one super agency. Local officials eventually convinced Peace to tame the measure, which instead created the 11-member San Diego Regional Government Efficiency Commission (RGEC, or Regis). The commission's final report was due to the Legislature August 1. In June, RGEC recommended creation of a regional airport authority with an appointed nine-member board. A key part of the recommendation is that the airport authority be armed with the power to override (with a two-thirds vote) local decisions to block a new airport. San Diego area officials have talked for decades about a new international airport either to compliment or to replace the highly constrained Lindbergh Field. However, no consensus has ever been reached on a site. The primary mission of the new authority would be to select a site and build an airport. The panel's more controversial proposal concerns a regional land use agency. In late July, it appeared the panel would recommend creation of a new regional authority for San Diego County. If state lawmakers agree with that idea, voters would decide next year, said Kirk Mather, consultant to RGEC. The idea is to establish a seven- to nine-member elected body — either entirely new or the county Board of Supervisors plus a few additions — that would have some level of authority over development and conservation decisions across the county. "If you look at where we are headed in the next 20 to 30 years, San Diego will have another 1 million people," said Byron Wear, a San Diego city councilman and chairman of RGEC. "Sixty percent of them will be our children and our grandchildren. We have to revise our land use plans." The general plans for San Diego County and its 18 cities are about 150,000 units short of meeting the need, he said. Officials at the San Diego Association of Governments (SANDAG) have not reacted favorably. Ramona Finnila, a Carlsbad city councilwoman and chairwoman of SANDAG, said SANDAG has addressed 26 different topics, ranging from affordable housing and transportation planning, to electricity restructuring and beach sand replenishment. "We think we have an excellent model of regional government right here," Finnila said. SANDAG has a smart growth strategy and an economic development plan and is already providing incentives for transit-oriented developments, she said. "We have got all these things that other areas are just talking about getting," Finnila said. Wear and others respond that their gripe is not with SANDAG itself but with SANDAG's lack of authority and its structure that gives small communities disproportionate say in regional debates. "There is a feeling," said Mather, "that SANDAG may be the best COG in the country, but we deserve better. We need something with some teeth in it. … We need a regional plan." The proposed regional authority would adopt a regional land use plan based on carrying capacity, Wear said. He favors an incentive-based approach that would, for example, provide more discretionary funding for a city that approves high-density housing near a transit corridor. The new entity would not have absolute control, and there would be a system to allow small town officials to be heard, Wear said. The regional authority could look similar to the advisory council that makes a variety of development and public services decisions in Portland, Oregon, Mather added. But Finnila is not convinced, and she criticized state lawmakers for creating a hurried process and providing no funding. "There has not been a good process in this commission. It lacked the time to do a good job. It lacked the time to study issues rather than get an overview," Finnila argued. Instead, she said, everyone should wait for the report from the Speaker's Commission. The state should then provide resources for whichever region wants to serve as a "guinea pig" for the Commission's recommendations, she said. Tax Sharing in Sacramento A bill by Assemblyman Darrell Steinberg (D-Sacramento) would make a seven-county region into a test case. The bill stalled this year but will return next year, according to a Steinberg aide. In its latest form, the bill would allocate all growth in sales tax revenue in the region by population. The bill would also divert money from the Education Revenue Augmentation Fund to establish "smart growth land use projects" in the region. The bill establishes air quality credits for jurisdictions that adopt smart growth plans. Those credits could be sold to new power plants, with revenue funding open space acquisition. During hearings, Steinberg said he wanted to prevent jurisdictions from competing with one another for sales-tax producing retail development. He said jurisdictions should cooperate so that such developments are built in the best locations. Steinberg originally proposed using state funds to backfill any jurisdiction that lost money under the new formula, but few people expect that provision to fly. The cities of Roseville and Elk Grove became two of the leading opponents of the bill. In the last decade, the western Placer County city of Roseville has approved extensive retail developments and a huge auto mall. Elk Grove, a year-old Sacramento County city, recently approved a 295-acre shopping mall. Those cities have made decisions based on existing fiscal conditions, and it is unfair to change the rules, said Daniel Carrigg, a lobbyist for the League of California Cities. The trouble with AB 680 and many of the Speaker's Commission's recommendations is that they do not expand the pie, they simply re-slice it, said Carrigg, who decried the nine-year-old ERAF shift of property taxes from cities and counties to schools. Changing formulas for allocating the same amount of money does not ensure that governments will make "better" land use decisions or that developers will proposed different projects, he said. "One of the first things we would say is, you need to ask local governments what tools they need," Carrigg said. In fact, that is Steinberg's latest tack. Because the top-down approach failed, Steinberg has asked local officials to reach common ground and propose language for a revised bill next year. Whiteside called AB 680 "timely and relevant" and noted that it has engaged many people. "I think that the Sacramento region is a great one to try this in because it's not so huge like Los Angeles is. It has a lot of growth potential, and it has a pretty strong center city with revenue issues. And it has a very well defined set of first-ring suburbs with declining sales tax revenue," Whiteside said. Other Efforts A number of other entities also are discussing or pursuing regional planning. The Bay Area Alliance for Sustainable Development, a collection of business, environmental and other entities, continues its four-year effort on a compact for sustainable growth in the Bay Area. Related to that, the Association of Bay Area Governments and other existing regional entities are pursuing a "smart growth strategy" to assist cities and developers. Contra Costa County Supervisor Mark DeSaulnier has urged the Legislature to create a Bay Area Regional Coordinating Council that would tackle a wide variety of issues. DeSaulnier has also proposed merging ABAG and the Metropolitan Transit Commission. An informal collection of officials from local government in the Sacramento region has formed the Sacramento Regional Partnership to discuss transportation, land use and social issues. Also, business and civic leaders have formed Valley Vision, which has scheduled a series of gatherings to discuss regional issues this summer and fall. Riverside County continues work on its integrated plan. While not truly a regional effort, proponents of regionalism are encouraged by Riverside County's decision to craft plans all at once for development, habitat conservation and transportation. Sources: Nick Bollman, California Center for Regional Leadership, (415) 882-7300. Carol Whiteside, Great Valley Center, (209) 522-5103. Byron Wear, San Diego city councilman, (619) 236-6622. Ramona Finnila, Carlsbad city councilwoman, (760) 434-2830. Daniel Carrigg, League of California Cities, (916) 658-8200. Speaker's Commission on Regionalism website: www.regionalism.org/ San Diego Regional Government Efficiency Commission website: www.sdrgec.org/ Bay Area Alliance for Sustainable Development website: www.bayareaalliance.org

An environmental group that sued the California Department of Forestry and Fire Protection over environmental review of a North Coast timber harvest lost its chance to pursue the lawsuit because it did not request a hearing within a prescribed deadline. Guardians of Elk Creek Old Growth argued that it had more time to request a hearing because the suit was moved from Sacramento County to Mendocino County. But a unanimous three-judge panel of the First District Court of Appeal, Division Three, ruled that no time extension was warranted because all parties were notified of the change of venue. Guardians of Elk Creek filed a lawsuit on May 3, 1999, challenging a timber harvest plan submitted by Redwood Empire Sawmills and Pacific States Industries. The timber companies, which are the real parties in interest in the suit, requested a venue change. The Sacramento County Superior Court approved the request, and on May 27, 1999, the Mendocino County Superior Court notified all parties that it had received the case file. On August 3, 1999 — 92 days after the lawsuit was originally filed — the timber companies asked the court to dismiss the case because the environmental group had failed to comply with Public Resources Code § 21167.4, which requires a plaintiff to file within 90 days a request for a hearing. On August 11, 1999, Guardians of Elk Creek requested a hearing, but Mendocino County Superior Court Judge Vincent Lechowick dismissed the lawsuit. Guardians of Elk Creek then appealed. The timber companies and CDF argued that the appeal was moot because the timber harvest had been completed. But the appellate court said it wanted to eliminate confusion over the case on point, Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist., (1992) 9 Cal.App.4th 644 (see CP&DR Legal Digest, October 1992). In Dunn-Edwards, which was later overturned on other grounds, the court held that a petitioner is excused from the timely requesting of a hearing if the trial court fails to notify the parties that the case has been transferred. Guardians of Elk Creek argued that under Dunn-Edwards, the 90-day period began after the case was refiled in Mendocino County. But the appellate court disagreed. "The date the petition was originally filed is the beginning of the 90-day period for requesting a hearing," the court ruled. "The petitioner is excused from complying with that restriction only if the receiving court fails to notify the parties that the case is on file." The Case: Guardians of Elk Creek Old Growth, v. California Department of Forestry and Fire Protection, No. A088611, 01 C.D.O.S. 5197, 2001 DJDAR 6375. Filed June 21, 2001. The Lawyers: For Guardians of Elk Creek: Kimberly Burr, For CDF: Michael Neville, deputy attorney general

The City of Stockton in June completed a brownfield reuse project that some people view as a milestone in the slow rebirth of the downtown of the San Joaquin County seat. After about six years of study, cleanup and construction, the city has opened a waterfront plaza that connects the two-year-old outdoor events center with a historic hotel that is scheduled to be refurbished. The park also provides the first link to the waterfront. "I think getting it done will have a huge psychological impact," said Stockton Housing and Redevelopment Director Steve Pinkerton. "Even though there was no wall there, it was just a huge separation between the downtown and the waterfront." "This is regarded widely as the catalyst project to bring our downtown back," said Tim Viall, executive director of the Downtown Stockton Alliance, a quasi-government business improvement district. The new park is also one of the few projects in California stemming from the federal Environmental Protection Agency's brownfield pilot project that has come to fruition. About 20 agencies in California have received pilot grants since the EPA began its Brownfields Action Agenda in 1995 to help communities reuse abandoned or under-used industrial and commercial sites. But few of those agencies have been able to complete all the steps necessary — including full assessment and a state-approved cleanup — to redevelop a contaminated site. In 1996, Stockton received a $200,000 brownfield pilot grant, shortly after the Urban Land Institute completed a waterfront plan for the city. The grant allowed the city's redevelopment agency to conduct "phase one" assessments of several brownfield sites. The city then focused its efforts on a sinking, fenced off parking lot next to the end of the shipping channel. A parking lot and gas station had been built on the site during the 1950s. Prior to that time, it was industrial land that had been used in the shipping industry for 100 years. (Located 80 miles east of San Francisco, Stockton originated as an off-loading point for gold miners, and a deep-water channel has long provided the city with a significant shipping industry.) Eventually, the gas station closed and the parking lot was fenced because the whole thing had been built on creosote piers and was slowing sinking, said Kitty Walker, brownfields project manager for the redevelopment agency. The city used the EPA pilot grant to complete a "phase two" assessment, which more fully identified the extent of contamination. After concluding that the contamination was an acceptable risk and becoming familiar with the state's Polanco Act, which would allow the city to pursue cleanup costs from past landowners, the city purchased the two-acre site in 1998. Later that same year, the city received $3.5 million in federal funding from the Department of Housing and Urban Development — a $3 million economic development initiative loan and a $500,000 brownfield economic development grant. At the same time the city was lining up financing and working on detailed plans for the site, it was completing the cleanup process supervised by the state Department of Toxic Substances Control and the Central Valley Regional Water Quality Control Board. Actual remediation costs totaled only $100,000 even though the review process took several years — a sore point with city officials. The city broke ground on the waterfront square last fall and cut the ribbon on the $4 million park in late June. The site features a large fountain that connects to the channel, extensive landscaping, and a hardscape area. Space has been set aside for a seasonal ice rink – similar to the one in downtown Sacramento – and there is room for a restaurant to be built later. City officials plan to use the square for farmers' markets and civic events. "We're bringing the waterfront back into downtown," said Walker, who believes the district has "finally turned the corner." Thomas Mix, a brownfields coordinator for EPA Region 9, called the waterfront plaza one of the pilot program's highlights. Creating a public gathering place "works hand in hand with the overall goal of the brownfields program, which is about making the best of what you've got," he said. "It really was a visual blight, and it was a key part of their redevelopment area." Part of reason for Mix's excitement is his belief that the project will induce private investment in downtown – an opinion shared by many people. More than a stand-alone park, the waterfront plaza ties together a number of assets. The Weber Point Outdoor Events Center opened to significant opposition two years ago. The concept of spending $8 million on a large amphitheater in a gritty downtown that seemed to have more immediate needs was not universally popular. However, concerts and festivals soon began attracting thousands of people. "It's been better received than the business community thought it would be," said Viall, of the downtown alliance. Next up is renovation of the Stockton Hotel, which is on the National Register of Historic Places, to an office and retail building. The city plans to lease office space in the hotel when refurbishing is complete. Next door will be an 18-screen movie theater. Tying all of the projects together is the waterfront plaza. The city assembled the property for the cinema and sold it to a developer for $1 because city officials wanted a larger facility than the market would appear to justify, Pinkerton said. To protect the investment, the city implemented zoning that blocked new cinemas of six or more screens elsewhere in town. Like many cities, Stockton undertook numerous downtown planning efforts during the last four decades. And, also like many cities, the city implemented few of the ideas. But things have changed for the better during the last few years, at least partly because of City Council commitment to downtown. The new plaza has helped spur interest in additional downtown and waterfront-related construction. Developers from the Bay Area, who have traditionally ignored Stockton, have been purchasing property, Walker said. Since the downtown alliance was created 3 1/2 years ago, about 125 businesses have opened downtown - four times as many as have closed or moved, according to Viall. Approximately 800 white-collar workers, half in the private sector, have been added to the downtown professional work force of 19,000 people, he said. "A lot of things that people have been talking about for the past 20 to 25 years are starting to happen," Viall said. "We still have a long ways to go, but a lot has happened in the last two to three years that we could only dream of four years ago." Contacts: Steve Pinkerton and Kitty Walker, Stockton Redevelopment Agency, (209) 937-8811. Thomas Mix, Environmental Protection Agency, Region 9, (415) 744-2378. Tom Viall, Downtown Stockton Alliance, (209) 464-5246. City of Stockton website for waterfront square: www.ci.stockton.ca.us/pages/decarlisq.htm