A quarry in unincorporated Alameda County may go forward despite a potential conflict with a growth-control initiative that voters approved in 2000, an appellate court has ruled. The decision came despite provisions in Measure D that specifically said the Sunol Valley quarry in question “should not be established.” The First District Court of Appeal held that the county had approved the quarry in 1994, that the initiative was not retroactive and that the initiative could not administratively revoke the 1994 mining permit. Prior to the November 2000 election, the campaign focus was on Measure D's provisions that drew urban growth boundaries around cities and unincorporated communities in central and eastern Alameda County. Urban growth outside those boundaries may not occur without voter approval (see , December 2000, October 2000). However, Measure D was 40 pages long and contained this section: “Policy 144: Except to the extent required by state law, no new quarry or other open-pit mine may be approved by the county outside the urban growth boundary, unless approved by the voters of Alameda County. Excavation not adjacent to an existing quarry site and on the same or adjoining parcel shall be regarded as a new quarry. “Policy 144A: The quarry currently planned by the San Francisco Public Utilities Commission in the Sunol area should not be established. If despite Policy 144 the quarry goes into operation, the county shall permit no related industrial or manufacturing uses, notwithstanding any provision of the initiative.” Sunol Valley is an unincorporated area east of Fremont. San Francisco purchased much of the valley during the 1930s as a water resource. Since the 1960s, the city has leased some land for gravel quarrying. Mission Valley Rock Company has mined on San Francisco land in the Sunol Valley since the mid-1980s. The company received Alameda County's approval for a surface mining permit and reclamation plan covering 145 acres in 1986. The county approved a 69-acre expansion in 1990. Two years later, Mission Valley Rock applied for a 240-acre expansion. Alameda County certified an environmental impact report and approved a surface mining permit for the quarry expansion in 1994. A group called Save Our Sunol (SOS), which also filed the lawsuit at hand, appealed the county's decision to the state Board of Mining and Geology. The state upheld the county's decision. The Sunol Valley group then filed a lawsuit alleging that the county violated the California Environmental Quality Act and that the project was inconsistent with the county general plan. Both the trial court and the First District, in an unpublished 1997 decision, ruled against SOS. Shortly before the November 2000 election, San Francisco certified an EIR for an Alameda County watershed management plan. The city then signed a lease with Mission Valley Rock for the expanded quarry site that was effective December 23, 2000 - one day after Measure D's effective date. After 56% of voters approved Measure D, SOS sued to halt the quarry project. Alameda County Superior Court Judge Bonnie Lewman Sabraw, however, ruled that the county had previously approved the quarry, so Measure D was inapplicable. SOS appealed, and a unanimous three-judge panel of the First District upheld the lower court. The Sunol Valley group contended that the county had not “approved” the Mission Valley Rock project within the meaning of Measure D because the gravel mining company lacked a site lease with San Francisco until after the initiative became effective, and because the company still needed a Caltrans encroachment permit, a streambed alteration permit from the Department of Fish and Game, and endangered species incidental take permits from state and federal agencies. The court, though, pointed out that Measure D specifically referenced approval. “Approvals by San Francisco, Caltrans, the California Department of Fish and Game, and federal and state authorities protecting endangered species are immaterial to application of Policy 144 that mandates voter endorsement only if the county has not previously approved the quarry,” Justice Patricia Sepulveda wrote for the court. The county approved the quarry when it issued a permit under the Surface Mining and Reclamation Act, the court ruled. “A surface mining permit is the indispensable requisite for operation of a quarry, and is issued only after extensive environmental review and policy considerations,” Sepulveda wrote. “Measure D provides that 'no new quarry … may be approved by the county … unless approved by the voters of Alameda County.' The contested Sunol Valley quarry was approved by the county when it issued surface mining permits in 1994, years before Measure D's 2000 enactment, and thus is not required to receive voter endorsement.” Measure D cannot be used as an administrative act to revoke the county's approval, the court concluded, because administrative acts such as use permit approvals are not subject to voter initiatives. The Case: , No. A105160, 04 C.D.O.S. 10327, 2004 DJDAR 14005. Filed November 19, 2004. The Lawyers: For SOS: Stephan Volker, (510) 496-0600. For Mission Valley Rock: Peter W. Davis, Reed Smith (415) 543-8700. For San Francisco: John Kerwin Smith, Haley, Purchio, Sakai & Smith (510) 538-6400. For Alameda County: Lorenzo Chambliss, deputy county counsel, (510) 272-6700.

Orange County has approved a plan to develop what many people see as the last important piece of the county's urban development puzzle. The Rancho Mission Viejo Ranch Plan, approved by the Board of Supervisors in November, proposes 14,000 housing units on 23,000 acres on the largest privately owned tract of land remaining in the county. The development, which is to be phased in over several decades, would accommodate 30,000 residents and at least 16,000 jobs. The largely suburban plan calls for mostly single-family homes, three mixed-use centers and potentially 60 acres of land for affordable housing. The development would be similar to nearby Laguna Hills. The site lies just north of San Clemente and east of Mission Viejo, and is bordered by the Cleveland National Forest to the east. Because of its size and mostly undeveloped status, the land is prized by developers and environmentalists alike. Less than a month after the county approved the ranch plan, two lawsuits were filed against the county and the landowner, Rancho Mission Viejo. The first, by a group of environmental organizations, is primarily over environmental concerns. The groups argue the county did an inadequate environmental review, and failed to comply with the California Environmental Quality Act and other state laws. The second lawsuit, filed by the City of Mission Viejo, cites the inadequacy of infrastructure planning to handle the increased traffic load through its city, as well as a failure to identify sources of funding. Although traffic is a local concern, the environment is the primary point of contention for a wide range of stakeholders. Despite the fact that the plan calls for 15,000 acres of open space - more than two-thirds the overall area - environmentalists are far from content. “The development pattern of this plan is to build 'pods' of housing scattered within the overall planning boundary, the result of which would be isolated pockets of habitat of greatly diminished value.” said Dan Silver, president of the Endangered Habitats League, and a leader in the fight against the ranch plan. Bryan Speegle, director of the Orange County Resources and Development Management Department, disagreed. “When you look at a map of the open space within the plan, it may look counter-intuitive,” Speegle explained. “We're used to seeing large, contiguous regions of open space. However, most of the species we're interested in protecting here don't migrate - they don't need large-scale linkages. We've done our best to locate development in such a way as to keep the environment intact.” “The plan,” Speegle continued, “calls for conservation easements aimed at habitat protection, and will only allow limited other uses, mainly farming and ranching.” Diane Gaynor, a Rancho Mission Viejo representative, presented another side to the story. “This land has a history of long-term leases,” she said. “There are nurseries, recycling centers, decades of weapon testing, and other uses on this land - thousands of acres where the habitat has already been marginalized. Those are the areas where we are focusing development.” Environmentalists are not buying it, though. Silver and others see fragmented habitat, an inadequate environmental review, and another case of the developer calling the shots in Orange County. James Birkelund, of the Natural Resources Defense Council, said that the science behind the environmental review was inadequate, and that the real value of the habitat as well as the threat posed by development have not been revealed. One of the major contentions is that the EIR conducted only a “program” level of analysis that relies heavily on future mitigation efforts, a course of action that project opponents find unacceptable given that the development agreement severely limits the county's future discretion to engage in and alter the development process. Opponents worry that the plan is filled with false promises for conservation while locking in development rights from the start. At the heart of the matter for the Sierra Club and other activists are two areas of special concern - the San Mateo Creek watershed and Chiquita Canyon. According to the Sierra Club's Brittany McKee, the San Mateo is one of the last clean, non-dammed creeks in Southern California. The creek provides a linkage of great importance from the coast - where it terminates at famed Trestles Beach - all the way to its source in the mountains. And the Chiquita Canyon has been identified by scientists as one of the most sensitive and diverse habitats remaining along the coast. The land is prime habitat for the gnatcatcher, one of the most visible of the region's endangered species, as well as the coastal cactus toad, arroyo wren and other rare species. “We are not interested in blocking this project,” said McKee. “But we will not stand for anything less than total protection of these two environments.” The landowners and county have recognized the significance of these spots and have placed them and two other areas in “planning reserves,” which amount to about 3,800 acres all told. According to Gaynor, these reserves were put in place to await the finalization of the region's Natural Communities Conservation Plan (NCCP) - initiated by state and federal resource agencies in 1993 to address protection the region's natural resources - and the alignment of a transportation corridor before going forward with development plans. Gaynor contends that the original development plans have been scaled back dramatically in those areas in light of their ecological value. McKee and other environmentalists, however, worry that the reserve designation offers no guarantee of protection, and likely nothing more than a short lag time in developing those areas. The ranch plan's relationship with the NCCP is one of the most contentious issues. As its stands, the Rancho Mission Viejo Ranch Plan was approved by the county Board of Supervisors despite testimony from the Department of Fish and Game and the U.S. Fish and Wildlife Service, which are part of the NCCP agreement, that the plan does not meet the NCCP's guidelines. Silver, of the Endangered Habitats League, complained that the plan superceded the NCCP. “How,” asked Silver, “can you have an NCCP, which is supposed to at least consider development plans concurrently with habitat plans, when all the development has been entitled and not a single binding agreement has been put in place for open space and habitat? They have essentially foreclosed on the NCCP. The NCCP is not close to being finished, it is finished. It's dead.” The City of Mission Viejo has its own concerns about the project. While the city supports the development, citing a regional housing shortage, the city is critical of the project's transportation plan. Councilman Lance MacLean said the project will dump added commuter traffic headed for Interstate 5 into Mission Viejo where the Ortega Highway dead ends on the city's surface streets. The city is demanding that the county identify additional road capacity and commit to funding that capacity. The county's Speegle objects. “The whole county uses the same socioeconomic projections and model to determine transportation impacts of projects like this,” Speegle said. “Mission Viejo has signed off on the model, they just don't like the results.” At the heart of the matter is a disagreement over the route those commuters are likely to take. MacLean said commuters will turn north on the surface streets to get to northbound I-5 to go to work. But the traffic model indicates that motorists will take a less intrusive route by first going south. The city also is upset over what it believes is a failure by the county to identify sufficient funding sources for the needed improvements. “It's well understood that the amount of money required to address the region's transportation challenges is $356 million,” MacLean said. “Rancho Mission Viejo is only contributing $144 million. Who's going to pay for the other $212 million? We believe the ranch is paying their fair share, but the county has a responsibility as the permitting agency to identify the rest of the money before this project goes through.” “Without that money, we won't be able to make needed improvements, and we'll all be stuck with the problem,” MacLean said. Speegle, however, said it would be unfair to rest the entire financial obligation on the process for a single project. Contacts: James Birkelund, Natural Resources Defense Council, (310) 434-2314. Diane Gaynor, Rancho Mission Viejo, (949) 240-3363. Lance MacLean, City of Mission Viejo, (949) 470-3050. Brittany McKee, Sierra Club, (949) 842-0574. Dan Silver, Endangered Habitats League, (213) 804-2750. Bryan Speegle, Orange County, (714) 834-2300.

The Fifth District Court of Appeal has published its opinion in which the court invalidated the Castaic Lake Water Agency's urban water management plan. The court rejected the four-year-old plan because it assumed that groundwater supplies tainted by perchlorate would be available during dry years, even though treatment facilities were not yet in place (see , November 2004). The ruling marked the first time that a court has thrown out an urban water management plan, which is required to address 20-year supplies and demand. The case is , No. F043273, 04 C.D.O.S. 9281, 2004 DJDAR 12676. The order for publication was filed on October 15, 2004.

The environmental review of a proposed mining reclamation plan need not consider the impacts of the actual mining, the Third District Court of Appeal has concluded. The unanimous three-judge appellate panel rejected arguments that a negative declaration provided an inadequate study of the reclamation plan because, the court ruled, the project opponents' concerns were largely over the impacts of mining, not reclamation. Additionally, the court ruled that El Dorado County did not segment the project improperly to avoid having to provide a complete environmental analysis. Limestone mining began at the Cool Cave Quarry in 1910 and continued intermittently until 1946. Since then, the mine, which is next to Highway 49 near the Sierra foothills community of Cool, has operated continuously. Under the Surface Mining and Reclamation Act (SMARA), all mining operations conducted after 1975 must have a reclamation plan. El Dorado County approved a reclamation plan for Spreckels Limestone Products' quarry in 1980. During the 1990s, at the same time that it became apparent the reclamation plan needed updating, Spreckels began considering expansion onto 16 acres of previously mined land owned by the Bureau of Land Management (BLM). The BLM requested a reclamation plan before it would consider leasing the land to Spreckels, so the company prepared an updated reclamation plan that covered its existing site and the 16-acre expansion area. In December 1999, the El Dorado County Planning Commission approved a negative declaration for the reclamation plan and approved the plan. A number of citizens and organizations appealed to the Board of Supervisors, which upheld the Planning Commission's decisions. By that time, Spreckels had sold the Cool Cave Quarry to A. Teichert & Son, Inc. The mining opponents sued, alleging a number of violations of the California Environmental Quality Act (CEQA). The opponents argued that the project description was inadequate, that the negative declaration did not analyze the entire project, and that the county should have recirculated the negative declaration after a substantial revision. Retired El Dorado County Superior Court Judge Patrick John Riley, sitting by assignment, ruled for the county. On appeal of the mining opponents, the Third District upheld the lower court. The case was decided primarily on the issue of whether the environmental review documents had to account for the mining activity itself, or only for the land reclamation that would occur after mining had concluded. The project opponents contended that the two activities were part of one project and, therefore, had to be considered together in environmental documents. The Third District disagreed. “As the trial court succinctly noted, 'the project itself was reclamation and not mining,'” Justice Rodney Davis wrote. “Although mining reclamation is not done without there having been mining, the project at issue presented the environmental effect of a reclamation plan rather than the environmental effect of mining activity. As Spreckels concedes, the proposed expansion of mining onto the 16 acres of federal land will itself be subject to the environmental review process. Furthermore, the existing mining is allowed as a vested mining right.” Davis cited , (1987) 196 Cal.App.3d 47, in which the court held that a reclamation plan subject to CEQA review was distinct from the underlying mining activity. Pointing to , (1988) 47 Cal.3d 376, the opponents argued that expansion of mining onto the federal land was a “reasonably foreseeable consequence” of the reclamation plan. But the Third District rejected the argument. “Bureau and county, it appears, simply believed that it would be efficient to include the proposed mining extension in the ongoing update of the reclamation plan for the current mining activity,” Davis wrote. “In this respect, the mining extension may not be a reasonably foreseeable or probable consequence of the reclamation plan update.” The court did concede that reclamation of the existing mine relied on the use of soil from the expansion area, and that Spreckels “has stated that the plan may have to be amended” if the expansion were not allowed. That was not enough for the court to change its position, though. The opponents also argued that the county should have recirculated the negative declaration after adding last-minute conditions requested by Caltrans to ensure that mining activity did not impact Highway 49. The court characterized these conditions - which related to mining and not reclamation - as “an added bonus” that did not trigger the need for recirculation. The Case: , No. C044541, 04 C.D.O.S. 9209. Filed September 14, 2004. Modified and ordered published October 14, 2004. The Lawyers: For Taxpayers for Quality Growth: Donald Mooney, (530) 758-2377. For the county: Ed Knapp, county counsel, (530) 621-5770. For Cool Cave Quarry, Inc.: John M. Taylor, Taylor & Wiley, (916) 929-5545.

The day after he was elected to a second term, President Bush conducted a press conference in which he highlighted four issues as the cornerstones of his second-term domestic policy agenda: tort reform, education, the tax code, and Social Security. For anybody who paid close attention to Bush's campaign - and especially to the domestic policy debate with John Kerry in October - this list is not surprising. But for the planning and development community in California, the list is notable for what is lacking: environmental policy. As regular readers of this publication know, federal environmental policy has a vast impact on the California landscape. This is partly because of the fact that the feds own half the state - mostly through the U.S. Forest Service and the Bureau of Land Management - and partly because federal endangered species and wetlands policies come into play in virtually all large development proposals in the state. But because Bush remained quiet on environmental issues, it is not clear whether he plans to be conciliatory or strident in the second term - or whether he plans to pick his spots on some issues (like Alaska oil drilling) and not push others (like Endangered Species Act reform). There is no question that the affected industries are expecting him to be aggressive. Newhouse New Service recently reported that forest-products companies gave $4 to Bush's campaign for every $1 they gave to the Kerry campaign. Even so, in the wake of the election, major environmental groups did not seem to know quite what to say about Bush. Taking their cue from the president's own post-election rhetoric, most of them were taking pains not to sound too strident. “We hope the president's conciliatory and unifying words signal a new willingness to meet us halfway on key conservation issues,” said Roger Schlickeisen of Defenders of Wildlife, a fairly strident group. At the same time, however, John Adams of the Natural Resources Defense Council said, “As sweeping as this administration's attack on the environment has been, things are about to get worse.” One thing is clear: Bush plans to move full-speed ahead on plans to reverse President Clinton's “roadless rule,” a ban on logging and road-building on 58 million acres of U.S. Forest Service land in the West. Reversing this rule may not directly affect urban development in California, but it could open up many national forests to resort development and other recreational use, as well as more mineral extraction. Coincidentally, the comment period on the roadless rule ended on November 15 - less than two weeks after the election and one day before Californian Ann Veneman announced that she would step down as the secretary of the U.S. Department of Agriculture, which oversees the Forest Service. The government received more than 1.7 million comments on the roadless rule proposal, including critical letters from all Democratic governors in the West. On the final day of the comment period, Gov. Arnold Schwarzenegger fell into line with his fellow Republicans. In a letter to federal officials, state Resources Secretary Mike Chrisman endorsed the repeal of the roadless rule. Chrisman said that the state welcomed the chance to have greater involvement in national forest management, although the secretary also said the state had no plans to identify specific areas for preservation or development. It's worth noting that California has 4.1 million acres of roadless federal land, including areas with significant gas, oil and timber resources. Less clear is Bush's course on the Endangered Species Act, which might be one example of an arena where Bush will steer a more centrist course even as he gets pushed from the right by members of Congress who feel newly empowered. Environmentalists have criticized Bush's implementation of the Endangered Species Act, noting that the president has designated only half of the critical habitat that federal biologists have asked for and has listed far fewer endangered species than any recent predecessor. (Among other things, the administration recently declined to list 1 million acres of California vernal pools as critical habitat.) Even after 10 years of mostly Republican control of Congress, however, the law has not been formally weakened. It remains, as one environmentalists once said, the “pit bull” of environmental laws, with very few loopholes. However, Bush's coattails have created a more strongly Republican Congress, which is likely to kick up more of a fuss about amending the law, especially in the House. House Resources Committee Chairman Richard Pombo (R-Tracy) has been pushing two specific legislative reforms. The first would alter the scientific method by which species are listed as endangered, and the second would alter the rules on critical habitat designation. Pombo has indicated that he will revive these ideas and hold quick hearings on them. “We will put these back together and really start trying to figure out how we can put together a bipartisan compromise," he told . Republicans have been skittish about taking on the Endangered Species Act in the past, so Pombo's enthusiasm may be a little ahead of the curve. There is little doubt, however, that the Bush Administration will continue to change the way the law is implemented administratively. One issue - disturbing to environmentalists, encouraging to property-rights advocates - is the president's effort to shift responsibility for some species act implementation away from the U.S. Fish and Wildlife Service to other agencies. Bush has proposed that the responsibility for determining whether fire protection threats pose a danger to species be shifted to the Forest Service, and similar responsibility regarding pesticides be transferred to the Environmental Protection Agency (EPA). Agency Administrator Michael Leavitt has suggested that a significant administrative shift is coming, in large part because one-third of all EPA employees are eligible for retirement in the next four years - giving him the opportunity to reshape the agency's approach. The Bush approach became clearer on November 30, when the National Marine Fisheries Service proposed reducing a "critical habitat" designation for 19 species of salmon by nearly 90%. The revision was prompted by a lawsuit from the National Association of Homebuilders, which contended the original critical habitat designation (prepared by the Clinton administration) did not consider the economic effects of the designation. Another less obvious way for Bush to affect environmental policy is through judicial appointments. Most of the discussion about Bush's judges has focused on abortion and the U.S. Supreme Court. But in the case of endangered species and other issues, appointments to two federal appellate courts - the Ninth Circuit in San Francisco and the District of Columbia Circuit in Washington - can be just as important. The Ninth Circuit is generally regarded as more liberal than the federal judiciary as a whole, yet the Ninth Circuit does include some conservative panels, such as the one that recently issued a sweeping ruling against mobile home rent control (see , October 2004; t, September 2004). The D.C. Circuit is the federal appellate court that deals with most federal environmental regulations. “It is close to the tipping point in a number of appeals courts,” one environmental lawyer said. So even though some high-profile fights are in the offing and Rep. Pombo will hold potentially contentious hearings on the Endangered Species Act, the Bush approach in the second term is likely to be more subtle - streamlining processes, shifting the way rules are interpreted, altering the composition of courts, and maybe even changing the predominant orientation of federal bureaucrats. And all those changes are much more likely to have an enduring impact on planning and development in California and elsewhere than the more high-profile battles.

An environmental study of a rock quarry proposed in northern San Diego County has survived a second court challenge. The Fourth District Court of Appeal, which had rejected an air pollution analysis in an earlier environmental impact report, accepted a revised version and refused to let project opponents raise the issue of newly identified air pollution from the planned mine. San Diego County in 1987 approved Palomar Aggregates' proposed quarry on Rosemary's Mountain about two miles east of the junction of Interstate 15 and Highway 76. A group called Riverwatch successfully challenged the EIR in San Diego County Superior Court. The Fourth District overturned most of that decision but found the air quality analysis to be insufficient. ( , (1999) 76 Cal.App.4th 1428; see , February 2000.) Specifically, the EIR had concluded that air quality impacts would be insignificant because the quarry's processing operations would generate only 95 pounds of airborne dust (called PM 10) per day, which was below the San Diego Air Pollution Control District's 100-pound threshold of significance. However, erosion and hauling of aggregate were expected to generate another 193 pounds of dust per day. The EIR should have considered those emissions in the finding of significance, the court ruled. Palomar and the county then revised the EIR that re-evaluated the various emissions sources and added mitigation measures to get below the 100-pound threshold. Riverwatch again challenged the document, but the Superior Court this time accepted the study. In an unpublished opinion issued in late October, the Fourth District upheld the lower court. In the second round of litigation, Riverwatch complained that the revised EIR did not address diesel emissions and additional dust sources related to the project. The court ruled the EIR did not have to do so, because Riverwatch's sole contention in the first round of litigation was that the EIR failed to properly analyze sources of pollution that the EIR had identified. “Nothing in Riverwatch's pleadings or briefs gave notice to the county, Palomar or the trial court that additional sources of PM 10 or the toxicity of diesel exhaust needed to be considered,” the appellate court ruled. “Contrary to opponents' contention, the project proponent was not required to consider the impact of previously unidentified sources of pollution.” The case is , No. D042430.

Imperial County is experiencing an unprecedented housing boom, with at least 1,000 new units a year going up. Depending on who is counting, somewhere between 12,000 and 20,000 additional units are in the pipeline - in a farming county with a population of only 155,000. Two factors - one obvious and one less so - appear to be driving the boom, which started in 2002. The most evident factor is the price of housing elsewhere in California, especially in the San Diego area. New single-family houses in San Diego County generally start at more than $500,000. In Imperial County, new houses start in the low $200,000s. The not-so-obvious factor is the North American Free Trade Agreement. The pact has resulted in the construction of numerous factories, called maquiladoras, just across the border in Mexicali. The factory managers, whether American, Mexican or Asian, appear to favor living on the American side of the fence. Whether residential development will continue at a rapid pace is a question on many people's minds. Imperial County has long had the state's highest unemployment rate. This year, the rate has been about 25%, or more than four times higher than California's rate, according to the state Employment Development Department (EDD). And the jobs that exist are often low-paying. The 2000 Census pegged the county's median per capita income at $13,239, which was only 58% of the state's median. The EDD expects most near-term job growth to be in all three levels of government (jobs which pay pretty well), and in lower-paying service and retail sectors. Still, the recent transformation of grain and grass fields into housing tracts has been remarkable. Calling Imperial County “the next Temecula,” several of the nation's largest homebuilders are now building subdivisions. One of the first to arrive was the National City-based Corky McMillin Companies, which acquired The Allen Group's residential projects in Imperial County in 2001. McMillin currently is developing two projects in the border city of Calexico, one in the county seat of El Centro, and two in the City of Brawley, said McMillin Vice President Rick Jarrett. The company is building and selling 300 to 325 houses annually, with a good many of the units going to first-time buyers, he said. Sales of all houses were easy for a period, although sales have slowed a bit during the second half of 2004, said Doug Russel, president of the Imperial County Board of Realtors. “Four or five years ago, there were three for-sale signs in every yard. You couldn't sell a house,” Russel said. The market switched almost overnight to one in which multiple offers were common, prices rose $10,000 a month, few houses stayed on the market more than a week, and the price of speculative land jumped from $20,000 an acre to $50,000 an acre, Russel said. Now, things have settled down, but the market remains strong, with most houses selling from the high $200,000s to the mid-$300,000s, he said. Who is buying these houses? People in the industry say some people are relocating to Imperial County, and probably 5% to 10% of new houses are purchased by people who commute two hours to San Diego. “We get phone calls all day from people in San Diego,” Russel added. “They've got a lot of equity and they are looking for investment property.” McMillin's Jarrett said that, with the exception of Calexico subdivisions, most buyers are government employees and business people from the area. “In Calexico,” he said. “we get a fair amount of businessmen from Mexicali - people who want to live and have their children educated in the U.S.” Imperial Valley Development Company's Paul Magaña, a native who recently hung out his own shingle, said Mexicali's industrial growth is an important element in Imperial County's future. Not only are Mexicali workers buying houses in the U.S., but more and more of the Imperial County economy is tied to Mexico. Development is under way at the 1,700-acre Gateway to the America's industrial park, about seven miles east of Calexico. The project is at the designated border crossing for trucks, and a new highway is planned from the border crossing to Interstate 8. All of this is expected to induce growth in the logistics industry. The retail market also is connected to Mexicali. A 900,000-square-foot shopping mall is scheduled to open in southeastern El Centro in March 2005. Big boxes of many varieties have been built in Calexico, El Centro and Imperial in recent years. Wal-Mart is planning to replace its Calexico store with a supercenter less than two miles from the border. “Mexicali plays a big role in our economy,” agreed Russel, from the Board of Realtors. “They are building this infrastructure, these roads, all so that people can get here from Mexicali.” Indeed, on a recent weekday morning, the parking lots at the Calexico Wal-Mart and a new Food-4-Less store located even closer to the border had at least as many automobiles with Mexican license plates as cars with California plates. Some of this growth is occurring at the expense of farmland. According to the Department of Conservation, about 1,000 acres of farmland was converted to urban uses from 2000 to 2002. Locals say the rate has increased during the last two years. But, County Planning Director Jurg Heuberger noted, most growth is going in incorporated areas and a few designated unincorporated communities. The county general plan adopted in 1993 designated 60,000 acres, nearly all in and around cities, for urban growth. Development outside those areas is prohibited to protect agriculture, Heuberger explained. Additionally, the Imperial County Local Agency Formation Commission requires detailed service area plans before allowing any government entity to annex new territory The annexation business is brisk. Heuberger, who doubles as the county's LAFCO executive officer, said at least 15 annexations, ranging from 80 to 600 acres apiece, are on the drawing board. There is no serious local opposition to development. McMillin's Jarrett said the entitlement process in Imperial County is “far easier than it is anywhere else in California.” Of more concern locally is the deal that requires the Imperial Irrigation District to sell roughly 10% of its allotment of Colorado River Water to the state Department of Water Resources and the San Diego Water Authority (see , November 2003; , December 2002). The deal has already resulted in the fallowing of about 190,000 acres of farmland. Contacts: Jurg Heuberger, Imperial County Planning Department, (760) 482-4236. Doug Russel, Imperial County Board of Realtors, (760) 353-1799. Rick Jarrett, Corky McMillin Companies, (619) 477-4117. Paul Magaña, Imperial Valley Development Company, (760) 455-4967.

For the first time ever, San Joaquin County became the focus of ballot-box planning in California during the November election. Voters in Stockton sent mixed messages about growth, but the electorate in the south-county city of Tracy delivered two solid blows against development. Statewide, in local ballot measure results that could easily be classified, voters took the pro-growth side 16 times, while slow-growth advocates won 15 measures. The results were a bit more oriented toward slow-growth than were the results in recent general elections. In November 2002, the pro-growth side won 19 of 32 ballot measures. In November 2000, the results were even more pro growth, 34-21. Meanwhile, voters across the state demonstrated a willingness to pay for highway and transit projects with local sales taxes. Five counties placed extensions of existing half-cent sales taxes on the ballot in November, and voters in four counties - Contra Costa, Sacramento, San Bernardino and San Mateo - passed the taxes overwhelmingly. The other extension, in San Diego County, was winning narrowly with county officials still finalizing election results. Five other counties that placed first-time sales tax measures on the ballot did not fare as well. Only voters in Marin County gave clear approval to a new tax, while the vote on a quarter-cent tax in Sonoma County remained too close to call. In the Bay Area edge county of Solano, a second-try at a new sales tax received 63.5% of the vote, just short of the two-thirds required. However, in the slow-growth strongholds of Santa Cruz and Ventura counties, new sales taxes for transportation failed to garner even simple majorities, let alone the two-thirds votes required for passage. Central Valley growth conflict Unlike recent years, the coastal counties of Ventura and San Diego did not have large numbers of developed-related measures on local ballots. Instead, San Joaquin County was the center of attention. Located south of Sacramento and just over the Altamont Pass from the Bay Area, San Joaquin County is a prime “Bay spillover” county, where bargain-hunting commuters snap up homes in Tracy, Manteca, Lathrop, Stockton and the new Mountain House development. Over the years, voters in Lodi have shown slow-growth tendencies while deciding a number of ballot measures. In general, though, the county has had strong pro-growth politics, and ballot-box planning has been a rarity. But November's election results in Tracy and Stockton might signify a political evolution. “This is starting a new era in the county,” declared Eric Parfrey, chairman of the Sierra Club's Mother Lode Chapter and a leading proponent of Measure Q, which sought to establish an urban growth boundary around Stockton. “There is going to be an ongoing discussion between elected officials and the voters about growth issues.” Yet Stockton election results did not clearly indicate where that discussion might lead. Voters narrowly approved the Sierra Club's Measure Q, which essentially used the city's existing urban services line as 20-year growth boundary. But voters also approved Measure S, a property owners' alternative initiative with a provision that specifically overruled Measure Q. Moreover, voters approved Measure X, developer John Verner's initiative that carved a 1,000-acre exception in the Measure Q boundary so that Verner may pursue a 4,000-unit housing project. The only ballot measure that voters rejected was Measure T, a city-sponsored alternative to the Sierra Club initiative that called for the creation of a “greenbelt master plan.” Measure S, which passed nearly two-to-one, strengthens an existing right-to-farm ordinance. The measure declares that existing agricultural uses cannot be considered nuisances because of surrounding land use changes, and creates a legal presumption favoring agricultural operations. The measure further requires the owners of land converted from agricultural to urban uses to record deeds of restrictions waiving any rights to complain about farming operations. The idea behind Measure S, said Stockton land use attorney and initiative proponent Steve Herum, was to remove pressure on growers and dairy operators who find that homeowners in new housing tracts object to typical agricultural practices and want to shut down the farms. “Measure S is a farming initiative that was written by farmers and for farmers,” said Herum, whose wife runs a family-owned dairy. “This gives them a safety net.” Herum contended that Measure Q and Measure S are different means of reaching the same end of slowing Stockton's outward expansion. Instead of using regulations, Measure S creates a greenbelt by helping farmers who maintain that greenbelt, he said. Measure Q proponents, however, call Measure S a “Trojan horse” that does nothing to halt growth. Although Measure S contains a poison pill for Measure Q, proponents of the latter initiative said there is no inherent conflict between the two. Litigation over the disagreement is possible. Maybe more important for the long-term were the inroads made by a fairly new group called Campaign for Common Ground, which helped run the Measure Q campaign. Among the highest profile members of the group was former state Sen. Patrick Johnston. Also bolstering slow-growth advocates was the victory of incumbent State Sen. Mike Machado (D-Linden) over Stockton Mayor Gary Podesto in a $10 million campaign that was largely focused on growth. Podesto, who backed the failed Measure T greenbelt initiative, was portrayed as a developer's best friend. After the election, Podesto, who failed to carry his own city, conceded to the , “I think there's a perception out there that the developers run the council.” Slow-growth advocates' newfound confidence is likely to reappear during Stockton's general plan update process. In May, the city released a proposal that called for Stockton to grow from about 260,000 people to more than 700,000 by 2050, largely through the conversion of farmland into dozens of new community villages. In Tracy, the election results were clear-cut and could have an immediate impact. In 2000, Tracy voters enacted an initiative that capped building permits at about 600 per year, roughly half of the existing rate. City officials, however, insisted that the Measure A building cap allowed for a 10-year average, so the city has continued to issue more than 1,000 permits annually. To reach the average of 600, officials will have to shut off permits beginning in 2006. Potentially, the only permits that will be available will be Measure A's exceptions for downtown development and affordable housing. With this handwriting on the wall, AKT Development and The Surland Companies qualified two initiatives for the November ballot. Measure U would have carved an exception into the building permit cap for AKT's 5,500-unit Tracy Hills project, giving the Sacramento-based developer 600 building permits a year. Meanwhile, Measure V would have given San Ramon-based Surland 250 permits a year for a proposed 1,600-unit transit village along a commuter rail line. Despite the developers' combined spending of nearly $2 million in a city of 65,000, voters rejected both initiatives. AKT's Measure U received only 30% of the vote, while Surland's Measure V fared slightly better at 43%. The message, said building cap proponent Mark Connolly, was “don't mess with Measure A.” Tracy residents want to see job growth, not more houses that will only exacerbate the difficult commute to the Bay Area, Connolly said. Mike Souza, vice president of Souza Realty Development, a partner with AKT on Tracy Hills, predicted that people will be shocked and upset when construction dries up in 12 months. “We're still building at the rate that it was before . It never got changed. So we're going to go from 1,200 units a year to 100 units a year. Nobody has felt that yet,” Souza said. Both Connolly and Souza pointed to contention regarding the city's general plan update as a major factor in the election. The draft plan provides for a 150% increase in the city's population over the long run, but, detractors contend, does not do enough to encourage commercial and industrial growth. In northern end of San Joaquin County, voters in Lodi rejected an initiative that would have prohibited retail stores larger than 125,000 square feet without voter approval. The initiative came in response to Wal-Mart's proposal to build a 227,000-square-foot “supercenter” in Lodi. With Measure R getting only 42% of the vote, supercenter hearings are scheduled to resume this month. A half-cent for transportation The November election marked the first time that a large number of counties have placed the taxes on the ballot since a 1995 state Supreme Court ruling made clear that local-option sales taxes need two-thirds voter approval. The apparent success of at least six of the 10 sales tax measures - combined with approval of a multi-county, $980 million bond for BART upgrades, and approval of a parcel tax increase in parts of Alameda and Contra Costa counties for bus service - surprised even many transportation advocates. “There's a really broad statewide consensus, with a few anomalies, and it stretches from urban to rural,” said Eric Haley, president of the Self-Help Counties Coalition and executive director of the Riverside County Transportation Commission. “There is no ideological relationship here. Sonoma County went for Kerry as much as San Bernardino County went for Bush,” he said. Yet, if the results hold, both counties will have approved transportation sales taxes. Stephanie Vance, program manager for the transit-oriented Center for Transportation Excellence in Washington D.C., said California exemplified the national trend. Voters in dozens of localities approved a variety of transportation-related taxes. “It just seems to be that everyone wants more choices,” Vance said. Perhaps most closely watched was San Diego County, where the vote on a 40-year extension of a half-cent sales tax was barely winning as went to press. A number of elected officials, including three county supervisors, and environmental groups opposed Proposition A, although for different reasons. Supervisors wanted more money earmarked for pavement, while environmentalists urged increased spending on transit. However, frustration with traffic congestion and a high-profile educational campaign by the San Diego Association of Governments appeared to override complaints about the measure, which also calls on cities and counties to impose a $2,000-per-unit fee on new housing units. Proposition A directs its projected $14 billion roughly one-third each to highways, transit, and local streets and roads. The measure also has components that direct funding toward “smart growth” efforts, such as transit-oriented developments and downtown projects. The anomalies to which Haley referred were Santa Cruz and Ventura counties. In Santa Cruz County, the election amounted to a referendum on plans to widen Highway 1 from Santa Cruz to Watsonville because two-thirds of the sales tax revenue would have gone to that single project. Even though the existing four-lane freeway is jammed day and night, the election result was not a surprise because Santa Cruz County has been hostile to freeways since the 1960s. The county's longstanding opposition to Highway 17 improvements is widely credited for preventing San Jose from growing toward the sea. In Ventura County, the most populous county in the state without a local-option sales tax, a transportation tax measure appeared on the same ballot as a quarter-cent tax for open space preservation. Neither measure received even a bare majority vote. Haley said California appears to be evolving into two-tier state because the two-thirds vote requirement “may be impossible in some communities and in some political climates.” The next stiff fights are likely to be in Fresno and Orange counties, which will see sales tax overrides expire in the next several years, he said. Counties that want transportation improvements “need to bring something to the table,” said Haley, who noted that new Caltrans Director Will Kempton previously headed the state's first self-help organization, the Santa Clara Transportation Authority. Contacts: Eric Parfrey, Sierra Club, (209) 462-7079. Steve Herum, Herum, Crabtree & Brown, (209) 472-7700. Mark Connolly, Tracy Regional Alliance for a Quality Community, (209) 836-0725. Mike Souza, Souza Realty Development, (209) 835-8330. Eric Haley, Self-Help Counties Coalition, (951) 787-7141. Stephanie Vance, Center for Transportation Excellence, (202) 244-2405

The City of Sausalito's lawsuit over a development plan for the former Fort Baker Army base at the north end of the Golden Gate Bridge is headed back to district court. The Ninth U.S. Circuit Court of Appeals ruled that the Fort Baker proposal may be inconsistent with the San Francisco Bay Plan, and held that the district court should determine whether the National Park Service must get a “take” permit under the Marine Mammal Protection Act because of fishing pier and marina construction. Although the Ninth Circuit rejected numerous other claims made by Sausalito, the ruling was a victory for the city. Sausalito has fought since the 1990s to prevent development at the closed base, which lies within the Marin County portion of the Golden Gate National Recreation Area. The city, which abuts the former base, would like to see Fort Baker's historic sites restored without additional commercial development. The Park Service contends that it must generate most of the money locally for the restoration of historic sites and natural resources. To raise the funds, the Park Service adopted a plan in June 2000 that provides for a conference center and retreat with up to 350 guest rooms. The plan also provides for expansion of an existing museum, an addition to a Coast Guard facility, opening the marina to the public, restoring a beach and 42 acres of natural habitat, and rehabilitating hiking trails. Sausalito's lawsuit alleges that the Park Service, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service violated no fewer than 10 different statutes, including the National Environmental Policy Act, the Endangered Species Act and the Coastal Zone Management Act. Federal Magistrate Judge Elizabeth Laporte ruled that Sausalito lacked the legal standing to pursue its claims in court. On appeal, the Ninth Circuit found that the city had standing, but that nearly all of its claimed failed. Two assertions, however, did survive the Ninth Circuit's review. The Coastal Zone Management Act (CZMA) requires federal activities within the coastal zone to be consistent with state management programs “to the maximum extent practicable.” Fort Baker is covered by the San Francisco Bay Plan adopted by the San Francisco Bay Conservation and Development Commission. That plan specifically states that no commercial uses should occur at Fort Baker except for the convenience of park visitors. The Bay Commission approved a consistency determination submitted by the Park Service based on the theory that the new convention center would fund objectives of the Bay Plan, such as historic structure rehabilitation and park programs. However, lack of funding is “specifically forbidden as a criterion” for making a consistency determination, the Ninth Circuit ruled. “The regulations implementing the CZMA specifically provide that 'federal agencies shall not use a general claim of a lack of funding … as a basis for being consistent to the maximum extent practicable with an enforceable policy of a management program,' 15. C.F.R. § 930.32(a)(3). In arriving at its consistency determination, and in procuring the Bay Commission's concurrence in that determination, the Park Service relied on just such a 'general claim' of insufficient funding,” the court ruled. The second area where Sausalito had some success concerned the Marine Mammal Protection Act. The Park Service relied in part on , 22 F.3d 859 (9th Circuit 1993) to determine that it would not “harass, hunt, capture or kill” marine mammals within the act's definition. However, the Ninth Circuit pointed out, the statutory definition of “harassment” has expanded since the decision. Because the District Court did not consider the merits of Sausalito's claim under the Marine Mammal Protection Act, the Ninth Circuit remanded the matter back to the lower court, along with the question of CZMA consistency. The Case: No. 02-16585, 04 C.D.O.S. 9334, 2004 DJDAR 12799. Filed October 20, 2004. The Lawyers: For the city: Stephan Volker, (510) 496-0600. For O'Neill, Barbara Goodyear, Department of the Interior, (510) 419-0413.

Is this any place to build a resort? The Chemehuevi Indian Tribe Reservation in San Bernardino County is a vast field of parched, brown earth where temperatures can reach 120 degrees in the summer. To the southwest is the impressive desert landscape of the Whipple Mountains, a fine place to observe raptorial birds and wind-carved canyons, perhaps, but not a major tourist draw. The tribe's land fronts onto the incongruously blue waters of Lake Havasu, created out of the Colorado River in 1934 by the Parker Dam, which provides water for Los Angeles and San Diego. Across the lake, on the Arizona side, stands … London Bridge? Yes, London Bridge, the one you sang about as a child, which was famously sold to an Arizona investor, taken apart and reassembled in splendid absurdity in Lake Havasu City. Now that all that is clear, let's discuss the resort. With the assistance of some notable developers and designers, including the master mind of The Walt Disney Company's planned communities, a 32-square-mile stretch of the western lakeshore would become a green environment of drought-resistant landscaping, centering on a large-scale casino-hotel, a separate conference center and a spa with tennis courts, flanked by - what else? - an 18-hole golf course. A large marina containing hundreds of boat slips would attract visitors to the western shore of Lake Havasu, about 25 minutes of boating time from the eastern side of the lake. A sort of hybrid of Las Vegas and Palm Springs, the Chemehuevi resort would appeal to people who wish to gamble, as well as those who would rather spend their time on water sports, golf, tennis and horseback riding along tree-shaded trails with a view of the mountains. In keeping with the environmental theme, visitors would park their cars and switch to electric vehicles. These vehicles, in turn, would allow the developer to build narrower roads and use less asphalt. To preserve the visibility of desert starlight in the evenings, landscape designer Ron Izumita said the lighting at the resort would not be allowed to “leak” into the night sky. The revenues from this plush resort would float northward, so to speak, to finance the second phase and ultimate of this plan: a master-planned community for the Chemehuevis themselves. This community would consist of several thousand single-family homes, presumably along with schools, clinics, churches and retail stores. While all this is very ambitious, it is far from impossible. Consider the following: Lake Havasu, described in promotional brochures as “the most popular water destination in Arizona,” is already an established resort area with a devoted following. Developer Bob Small, the former Disney and Marriott executive who is the developer of the resort, said he was finally sold on the idea when he saw the lake full of boaters and restaurants full of people, despite the baking heat of late summer. The lake is full of watercraft much of the year, and the existing marina on the eastern shore is running out of boat slips. Consider also that the Chemehuevi tribe controls all the land proposed for development, and has entitlements to 11,000 acre-feet of water annually, or enough, at least in theory, to support both the resort and the residential community. The consulting firm Economic Research Associates (ERA) has concluded that the project “pencils out.” And, as a federally recognized Indian tribe, the Chemehuevis technically form a sovereign nation. They are not required to go through the typical local entitlement process. (Insofar as the project is on Lake Havasu, however, the tribe needs to win permit approval from multiple agencies, including the Army Corps of Engineers and the U.S. Fish & Wildlife Service.) An attractive resort may hold some appeal to affluent visitors, especially when the best hotel in Lake Havasu City is a Ramada Inn. What is interesting is that the resort and the residential community for the tribe are very separate, even though the casino-hotel and surrounding businesses are likely to provide most, if not all, the jobs for local residents. The possibilities of site planning, however tantalizing for this empty canvas, soon give way to the hard realities of real estate finance. Funding for economic studies and preliminary design has been available from the San Manuel Band of Mission Indians, a San Bernardino-based tribe that has already made money from a casino and provided some seed capital to the neighboring tribe. To obtain the hundreds of millions of dollars that the Chemehuevi project would require, however, the project must surmount two unusual issues, according to Small. As in many Indian territories, the Chemehuevi Reservation is not considered private property, and the area has not been subdivided for development. This raises problems with the sale of housing units. One possible solution would be the sale or long-term lease of land to a third party, perhaps a private, not-for-profit corporation. Investors who wanted to buy condominiums or lakefront houses could buy them on a co-op basis. Another issue is that the tribe's status as a sovereign nation may make investors wary that their money and ownership stakes would not have the usual legal guarantees that are enforceable in state and federal courts. That is a more difficult problem. One conceivable solution would be a contract that guaranteed the right of investors to adjudicate their issues in court. Then again, how would such a contract be enforceable outside the statutory limits of the United States? Small, a 65-year-old man in semi-retirement with apparently limitless optimism, seems unworried. The Chemehuevi resort, however ambitious, makes sense to him as a viable resort site, as social equity and as environmentally sensitive design. The Chemehuevi Reservation may well be a good place for a resort after all - if the tribe and its advisors can find a way to make money grow on the barren shores of Lake Havasu.

A plan by Santa Clara County to build a concert theater on a portion of the county-owned fairgrounds in south San Jose has drawn the ire of the City of San Jose and the downtown merchant community. Opponents of the county's project say a new performing arts venue belongs downtown, not in the mostly residential area where the fairgrounds is located. County officials, though, insist that the fairgrounds is an ideal location because there is ample parking and downtown is growing too crowded. The county, which, like many counties, has struggled to balance its budget during recent years, sees a theater as a potential money-maker. The city and the San Jose Downtown Association have filed lawsuits over the county's project. The county has won early rounds against the city; the Downtown Association litigation is scheduled for trial in 2005. The Santa Clara County Fairgrounds covers roughly 200 acres along Tully Road. For decades, the fairgrounds thrived with a gigantic flea market every weekend, dirt track auto and motorcycle racing, an annual county fair that ran for 2 1/2 weeks, and numerous special events. But the fairgrounds' fortunes began to fade during the 1990s. In 1999, the county put a halt to auto racing after 50 years and then demolished the 6,000-seat grandstand - with the understanding that the House of Blues would build an outdoor amphitheater on the race track area of the fairgrounds. The county certified an environmental impact report for the project in 2000, but the amphitheater project never went beyond the planning phase. In 2002, House of Blues backed out of its agreement with the county. The county regrouped and came up with a different approach. By early this year, the county had settled on a 7,000-seat, indoor music hall. The county would issue bonds to pay for construction, and the House of Blues would run the facility. At public meetings during the first half of this year, City of San Jose representatives and downtown advocates pleaded with the county not to pursue the fairgrounds project. The city's redevelopment agency and Silicon Valley Sports & Entertainment (SVSE owns the San Jose Sharks hockey team) began exploring the possibility of a downtown theater. In March, Mayor Ron Gonzales announced that the city and SVSE were negotiating on an $80 million, 5,000-seat theater. Redevelopment agency funds and bonds would provide three-quarters of the funding. No one believed the South Bay could support two concert halls. “Our downtown is an ideal location because a theater would complement our downtown performance venues, hotels and restaurants,” Gonzales said at the time. The Board of Supervisors was not persuaded and approved the fairgrounds project in May. With the county only days away from issuing about $87 million worth of bonds, the city and Downtown Association filed separate lawsuits on August 2. Scott Knies, executive director of the Downtown Association, said that the city's redevelopment agency and, to a lesser extent, the county, have invested hundreds of millions of dollars in downtown, primarily on transit and cultural amenities. A performing arts center would make good use of those downtown investments, he said. “From the simple perspective of good urban planning, this is the place where this type of facility should be located,” Knies contended. Knies and city officials also contend the county is taking a huge financial risk. The concert industry is in a slump and the business is more volatile than ever, according to analysts. Opponents of the county project offer horror stories from around the country of struggling concert venues. San Francisco's venerable Bill Graham Presents (BGP), now a subsidiary of Clear Channel Entertainment, recently laid off a number of employees - after spending what should have been the busy summer season marking down ticket prices in an attempt to fill seats at BGP venues. Even though the concert hall would cost an estimated $66 million to construct, county officials believe the county could make as much as $150 million in profit over three decades. County officials and project opponents disagree about how many shows the venue could accommodate and what ticket prices could be charged. Knies contended that “all of the stars in all of the galaxies have to align” for the county's numbers to pan out. County officials stand by the figures as an accurate reflection of the market. The debt payment could be made even if attendance and prices were substantially less than projected, according to staff reports to the Board of Supervisors. In its lawsuit, the city argues that the county broke a three-year-old agreement that requires the two jurisdictions to jointly plan projects within the urban core. The suit also contends that the site should be annexed to the city before a concert hall is built because, even though the county owns the land, a concert hall is not a traditional public use. The county responded by calling the city's action a strategic lawsuit against public participation (SLAPP) that was intended only to block the fairgrounds project so that the city could build its own concert hall. In a tentative ruling issued in November, San Mateo County Superior Court Judge Beth Labson Freeman sided with the county. City officials have indicated they will continue to press their case. The Downtown Association lawsuit contends that the county should have updated the EIR adopted in 2000, that a proposed ticket assessment is a tax that requires a public vote, and that the project is a public works project that must go through the competitive bidding process. The county's SLAPP argument failed. Frustrated county officials say the project remains on hold until the litigation is settled. “We were ready in May to issue bonds,” said Patrick Love, development and special projects director for the Santa Clara County office of the executive. “Because of the lawsuits, we didn't do so. It's very difficult to market bonds for a project that has a lawsuit against it.” Still, the county remains “very committed to this project,” said Love. “We know what we want.” Contacts: Patrick Love, Santa Clara County, (408) 299-5155. Scott Knies, San Jose Downtown Association, (408) 279-1775. Background documents, www.sccgov.org/agenda/home

The First District Court of Appeal has refused to excuse a citizens group's failure to comply with a California Environmental Quality Act (CEQA) procedural requirement, and has upheld dismissal of a lawsuit. Under CEQA, a petitioner has 90 days from the time it files a lawsuit to request a hearing. In this case, which concerned modifications at Lake Nacimiento in San Luis Obispo County, the deadline would have been October 1, 2002. However, the two sides agreed to a December 1, 2002, deadline because the case was moved out of county. When the group still had not requested a hearing by the following April, the government agency that had been sued requested dismissal, which the trial court granted. The group's attorney conceded that inexcusable error caused the missed deadline, but he asked for an extension under Code of Civil Procedure § 473, which provides relief for defaults without requiring that the attorney error was excusable. The First District rejected the argument, noting that CEQA has strict time limits and that every blown deadline was “caused by the mistake, inadvertence or neglect of the plaintiff's attorney. Application of § 473(b)'s mandatory relief provision to CEQA dismissals for failing to request a hearing within the prescribed 90-day time period would undermine CEQA's design for expedited litigation.” The case is , No. A104687, 04 C.D.O.S. 8867, 2004 DJDAR 12134, and was filed on September 29, 2004.