One of the largest takings awards in California history has been thrown out by a state appellate court, which ruled that preliminary airport planning and traffic circulation changes by the City of San Diego did not amount to a taking of a developer's property. In 2001, a jury awarded the developer of a business park just north of the Mexico border $94.5 million for inverse condemnation and for the city's violation of a 1986 development agreement. A judge ordered a new trial on the development agreement contentions, but the award of $65.3 million — plus $26.4 million in pre-judgment interest — to developer Roque de la Fuente II for inverse condemnation stood. By the time of the Fourth District's decision, interest had boosted the award to more than $120 million. The jury awarded damages after San Diego County Superior Court Judge Vincent DiFiglia accepted de la Fuente's argument that planning for an international airport in the area of the business park, and the diversion of truck traffic to a new border crossing amounted to a taking of private property because they impacted development of the business park. However, the Fourth District Court of Appeal ruled that because airport planning did not affect de la Fuente more than any other property owner, there was no taking. The court also found that, although truck traffic was thick for a period, there was always road access to the park and, therefore, there was no taking. The Fourth District also upheld Orange County Superior Court Judge Raymond Ikola's decision granting the city a new trial on the alleged breach of a development agreement. Vincent Bartolotta Jr., de la Fuente's attorney, said he would ask the state Supreme Court to take the case. The Fourth District's decision "undermines the viability of inverse condemnation in California," he said. The de la Fuente family and local government officials have battled for years over real estate development in the Otay Mesa section of San Diego, where Roque de la Fuente Sr., his wife and children have owned thousands of acres. (The senior de la Fuente died in 2002. His son, Roque II, runs the family development company.) In 1986, one year after the city annexed the territory, the city entered into a development agreement with the family's 260-acre Border Business Park, Inc. Under the agreement, the developer agreed to pay certain fees and bear the cost of various public improvements. In exchange, the city agreed not to hold the developer to certain fee and regulation revisions. The city also agreed to finance improvements with municipal bonds that the developer would pay off. However, there had been talk by the city and the San Diego Association of Governments (SANDAG) of converting the small Brown Field airport at Otay Mesa into an international airport since at least 1981. In 1989, SANDAG identified Otay Mesa and Miramar Marine Corps Air Station as potential new airport sites, and in 1991 the city named Otay Mesa the preferred option. The city's plan called for a "twin port" that used both Brown Field north of the border and Rodriquez Field in Tijuana. In 1993, however, the city abandoned the plan because Mexico was not interested. That same year, the federal government closed the San Ysidro border crossing to commercial truck traffic. Instead, trucks had to use a new border crossing in Otay Mesa. At first, truck traffic bypassed the business park. But two years later, the city re-routed traffic for about nine months in a way that inundated the business park with border-crossing trucks. Meanwhile, development at the business park had slowed, and de la Fuente missed some bond debt payments. The city foreclosed on 35 parcels, although de le Fuente eventually regained most of the property. De la Fuente sued the city in 1995, alleging the city had breached the development agreement, and in 1998 amended the lawsuit to allege that the city's actions amounted to inverse condemnation (a taking of private property). Judge DiFiglia ruled for the developer, sending the damages portion of the case to a jury, which ordered the city to pay the developer $65.3 million in January 2001. The jury awarded an additional $29.2 million for breach of contract. The decision stunned the city. Although inverse condemnation lawsuits by developers and landowners are not uncommon, actual awards of damages are rare in California. Moreover, in this case, the damages stemmed from the apparently routine government activities of long-term airport planning and a traffic re-routing. At the time, the San Diego Union-Tribune said, "If DiFiglia's interpretation stands, governments everywhere will be liable every time they do anything that affects private property. Good luck building a new airport, highway or any public project of any sort." The city got the case moved to Orange County, where Judge Ikola accepted the city's request for a new trial on the breach of contract claim. Still, he upheld the inverse condemnation decision. Both sides appealed, and a unanimous three-judge panel of the Fourth District, Division Two, ruled squarely for the city. Regarding airport planning, de la Fuente argued that the city acted unreasonably because it failed to ascertain Mexico's interest in the twin port plan or the sharing of airspace. The assertion was based on Klopping v. City of Whittier , (1972) 8 Cal.3d 39, in which the state Supreme Court ruled that "when the condemner acts unreasonably in issuing pre-condemnation statements, either by excessively delaying eminent domain action or by other oppressive conduct, our constitutional concern over property rights requires that the owner be compensated." The Fourth District ruled that de la Fuente was not eligible for a Klopping claim because the developer "failed to adduce any evidence that the city's announcements concerning the proposed Otay Mesa airport subjected it to direct and special injury." "If the plaintiff's situation is ‘no different than that of any other landowner' in the area to be affected by the proposed plan, Klopping does not apply," Justice Art McKinster wrote for the court, citing Selby Realty Co. v. City of San Buenaventura , (1973) 10 Cal.3rd 110, 120). The city's airport proposal affected 4,000 to 6,000 acres, so de la Fuente's inverse condemnation claim "fails as a matter of law," the court concluded. Truck traffic became an issue during 1995, when the city re-routed truck traffic while it improved the primary thoroughfare for about nine months. Truck traffic was sent through the business park, and backups lasted for hours. Some truck traffic diminished after the city finished work on the arterial, and the problem was largely solved by about the time of the trial court's ruling when the city completed a permanent, new truck route to the border. De la Fuente argued that there was "total gridlock" around and through the business park, denying him the right of access. But the Fourth District rejected the claim, finding that there was always some access, even during the critical period of 1995. "At most, the traffic backups required tenants of the park to use an entrance which was less convenient. Interference with access which merely requires greater ‘circuity of travel' is not compensable," McKinster wrote. Bartolotta contended that the court ignored evidence that trucks lined up bumper-to-bumper for hours on end, forcing tenants to drive off-road to reach their businesses. "This was so far beyond the pale of normality, it boggles the mind of anyone with common sense," he said. The developer's attorney also said the fact that airport planning affected multiple property owners should not impact an inverse condemnation claim. "How can that be the law?" he asked. As for a new trial on the alleged development agreement breach, the Fourth District ruled that claims for damages prior to June 23, 1994, were time-barred because of a decision in a different case involving de la Fuente and the city. The court upheld Judge Ikola's decision ordering a new trial on both liability and damages which occurred after that date. Bartolotta said he may ask the state Supreme Court to review the development agreement part of the case, too, but he welcomed a new trial. "Our damages are even bigger than they were before," he said. In a written statement, City Attorney Michael Aguirre said the ruling saved taxpayers more than $150 million. "The City of San Diego has no money for Roque de la Fuente," he said. However, one year ago the city revealed it had offered de la Fuente $50 million to drop the lawsuit and two similar suits he has filed against the city. But two years of negotiations and interventions by three judges produced no settlement. The Case: Border Business Park, Inc. v. City of San Diego , No. E035881, 06 C.D.O.S. 8909, 2006 DJDAR 12713. Filed September 19, 2006. The Lawyers: For Border Business Park: Vincent Bartolotta Jr., Thorsnes, Bartolotta & McGuire, (619) 236-9363. For the city: Kristine Wilkes, Latham & Watkins, (619) 236-1234.

A federal court has ordered Sutter County to grant a conditional use permit for a Sikh temple. The Ninth U.S. Circuit Court of Appeals found that the county violated the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) when the county rejected two use permit applications for the temple. The Ninth Circuit concluded that the county had imposed a “substantial burden” on the exercise of religion without providing a compelling reason. The decision had been closely watched, as the case generated amicus briefs by the Department of Justice, The Anti-Defamation League, the Becket Fund for Religious Liberty, and California local government associations. “The decision shows that a public agency’s failure to prove a compelling interest when denying land use permits to a religious group may lead to both a judicial reversal and a court order affirmatively approving the project,” Bingham McCutchen attorneys Daniel Curtin, Cecily Talbert and Joshua Safran wrote in the . In late September, in response to the court ruling, Sutter County granted the conditional use permit. The court also very specifically upheld the constitutionality of RLUIPA, finding that the law is a permissible exercise of Congress’s remedial power under the 14th Amendment. In an unpublished opinion, a different three-judge panel of the Ninth Circuit reached a similar conclusion in an unrelated case, , No. 04-5532 (August 22, 2006). Unlike RLUIPA’s predecessor, the Religious Freedom and Restoration Act, which the Supreme Court struck down in 1997, RLUIPA generally has been faring well in court, although courts have deferred to regulators that provide a compelling government interest. The Sutter County case involved an application from Guru Nanak Sikh Society of Yuba City. In 2001, Guru Nanak had sought a conditional use permit (CUP) to build a 5,000-square-foot temple on a 1.89-acre parcel zoned for low-density residential use. The county allows temples and churches in such zones with conditional use permits, and the county Planning Division recommended approval. However, the Planning Commission voted unanimously to deny the use permit because of citizens’ fears about noise and traffic. So Guru Nanak acquired a different property, a 28-acre parcel zoned for general agriculture. The land contained a walnut orchard and 2,300-square-foot house, which Guru Nanak proposed to expand by 500 square feet for use as a temple. Guru Nanak submitted a new use permit application, and, again, the Planning Division recommended approval based on a number of conditions, such as limiting the number of people at religious services to 75 at a time. Guru Nanak accepted the conditions, and the Planning Commission voted 4-3 to approve the project. However, neighboring landowners appealed, and the Board of Supervisors voted 4-0 to overturn the Planning Commission. Supervisors said the project conflicted with agriculture uses, was too far away from the city and amounted to leapfrog development. This time, Guru Nanak sued. District Court Judge Lawrence Karlton ruled that the county had substantially burdened Guru Nanak’s religious exercise without justifying such a burden, and he ordered the county to approve the use permit. In reviewing the lower court’s decision, the Ninth Circuit first had to determine whether the county’s denial of the second CUP application was a “substantial burden” under RLUIPA. The law permits government to impose a substantial burden only if it is in furtherance of a compelling government interest and is the least restrictive means of furthering that interest. Refusal to approve a land use entitlement is not necessarily a substantial burden under RLUIPA, but the county’s actions went too far for the court. “Most important to us,” Judge Carlos Bea wrote for the Ninth Circuit, “the history behind Guru Nanak’s two CUP application processes, and the reasons given for ultimately denying these applications, to a significantly great extent lessened the possibility that future CUP applications would be successful.” “The county imposed a substantial burden here based on two considerations: (1) that the county’s broad reasons given for its tandem denials could easily apply to all future applications by Guru Nanak; and (2) that Guru Nanak readily agreed to every mitigation measure suggested by the Planning Division, but the county, without explanation, found such cooperation insufficient.” The court pointed out that the county rejected the first proposal because of traffic and noise impacts on neighbors, and rejected the second application partly because the site was too remote. The court also noted that “many other churches already exist on agriculturally zoned land,” including a Sikh temple less than a mile from Guru Nanak’s second location. “Hence the county inconsistently applied its concern with leapfrog development to Guru Nanak,” Bea wrote. “Because the county’s actions have to a significantly great extent lessened the prospect of Guru Nanak being able to construct a temple in the future, the county has imposed a substantial burden on Guru Nanak’s religious exercise,” Bea wrote. And because the county conceded it had no compelling government interest for its decision, Judge Karlton properly invalidated the county’s denial of the CUP application, the court concluded. The court contrasted its decision with the ruling in , 360 F. 1024 (9th Cir. 2004), in which the court ruled that Morgan Hill’s refusal to rezone a closed hospital for use as a Christian college did not violate RLUIPA (see , April 2004). In that case, Bea wrote, there was no evidence that the city would reject the college’s application for a different site in town. As for the law’s overall constitutionality, the court ruled, “RLUIPA is a congruent and proportional response to free exercise violations because it targets only regulations that are susceptible, and have been shown, to violate individuals’ religious exercise.” The Case: , No. 03-17343, 06 C.D.O.S. 6959, 2006 DJDAR 10128. Filed August 1, 2006. The Lawyers: For Guru Nanak: Michael Barrette, (530) 674-5996. For the county: Jeffrey Melching, Rutan & Tucker, (714) 641-5100.

Twenty years ago this fall, the population of California stood at slightly north of 27 million people – an alarming increase of 4 million since the 1980 Census. Many people were wondering how the state would be able to accommodate such a huge population. When you take a look at this world – the world that was born into in 1986 – it looks on the surface to be dramatically different from today. Yet in many important ways, not much has fundamentally changed. Cities and counties play politics and think about revenue in creating plans; developers try to bust the plans to respond to the market and make money; citizen groups use the ballot and the lawsuit to try to get what they want. Everybody operates under a land use planning and entitlement system that was set up during the 1970s, when California was a suburban state. In 1986, George Deukmejian, a Republican prosecutor from Long Beach, was governor. Dianne Feinstein was the mayor of San Francisco; Tom Bradley was the mayor of Los Angeles. Willie Brown had turned speaker of the assembly into maybe the most powerful job in the state. Arnold Schwarzenegger was basking in the success of the first “Terminator” movie and was filming another movie, “Predator,” about U.S. commandoes facing off against an alien in Central America; one of his co-stars was wrestler Jesse Ventura, who was killed by the alien in the movie. (At the end, Arnold cornered the alien, which then blew itself up, kind of like Phil Angelides.) After close to a decade of sluggishness, a real estate development boom had kicked into high gear. The average home price was $133,000 – up almost 12% from the year before. In super-expensive areas like the Bay Area and Orange County, the average home price had crept up above $160,000. One of California’s U.S. senators, housing champion Alan Cranston, introduced a bill loosening federal mortgage requirements to make houses more affordable to first-time buyers. At President Reagan’s insistence, Congress had just passed a tax reform bill that virtually eliminated the tax advantages of building apartments – and which would set off a 15-year trend toward single-family home construction. No one ever used the word “infill” in 1986. There was no such thing as a “mitigated negative declaration.” Few people talked about endangered species in the context of private real estate development. Everybody complained that “blight” was a loose term but nobody could do anything about it. Fewer than 20% of California’s cities and counties had a certified housing element and nobody much seemed to care. In November 1986, the state’s voters cast ballots on a $500 million prison bond, a $100 million water bond, and a $400 million school bond. In the wake of Proposition 13, which required a two-thirds vote for most local tax issues, nobody could figure out how to pass a local bond for schools or anything else. The hottest thing in the real estate market was office space. Business was booming, and companies of all sizes had an insatiable appetite for space — both downtown skyscrapers (as exemplified by the 70-story Library Tower in L.A.) and suburban office parks (such as the gigantic Hacienda Business Park in Pleasanton). Indeed, the suburbanization of offices and jobs was one of the biggest stories in California, because nobody had ever seen such a phenomenon before. And average folks weren’t always happy about it. Enraged by six-story office buildings on Ventura Boulevard towering over adjacent backyard swimming pools, voters in the City of Los Angeles rebelled by passing Measure U in November 1986, which cut the size of allowable commercial buildings in half all over the city. Measure U was the tip of the iceberg. Having been granted easy access to the ballot on land use issues by the California Supreme Court only a few years before, citizen groups around the state responded to the real estate boom with an unprecedented wave of ballot initiatives aimed at restricting growth. Starting in the 1970s, there had been a few local ballot measures dealing with land use issues each year. But in 1986 the number ballooned to 51. The California Environmental Quality Act (CEQA) was still regularly used by environmentalists around the state to kill projects, and mitigation wasn’t a concept people thought about all that much. Environmental lawyers frequently dragged CEQA lawsuits into the appellate courts in hopes of expanding the law’s requirements and had little reason to believe they wouldn’t keep winning. Most California Supreme Court justices were liberals, and the Chief Justice was Rose Bird, the ultra-liberal who had been appointed by Jerry Brown. In a sign of things to come, Bird and two colleagues were ousted in a recall election that November. The legal backlash against strict land use regulation had barely begun. It was unclear just how much power local governments had to regulate private landowners, or how strong those landowners’ rights were. But two key takings and exaction cases from California were pending before the U.S. Supreme Court – and – and land use lawyers around the state were eagerly awaiting the outcome. In looking back, it’s fair to divide this score of years since published its first edition into four periods of approximately five years each, reflecting the economic cycles and political change of the era. 1986-1991: The Go-Go Years The boom of the late ’80s was a sight to behold. After more than a decade of sluggishness – including an absolute halt to population growth during the late ’70s – California saw record levels of housing construction, a hot office market, and a mini-mall boom. This, predictably, led to a backlash against growth. Part of the reason for the backlash was that Proposition 13’s passage in 1978 had left the state bereft of the capacity to build new infrastructure – especially roads – so congestion was on the rise. Part of the reason, as well, was that the office boom of the period created some early infill strife between developers and neighbors, particularly in older strip commercial areas. But the biggest reason was simply that, back in 1980, the California Supreme Court had made it easy for citizens to put general plan amendments on the ballot in , 28 Cal.3d 511. In particular, 1988 was the zenith of the political frenzy over growth. That year, 89 growth-related measures were on local ballots, including major growth-control proposals in Orange, Riverside, and San Diego counties. Growth was a major topic in the Legislature, and Willie Brown even took a flier on the idea of eliminating local governments and replacing them with powerful regional governments – elected, of course. Meanwhile, the median home price ballooned from $133,000 in 1986 to $168,000 in 1988 to $196,000 in 1989 – a 50% increase in only three years. By 1990, the governor’s race featured two big-city mayors – Dianne Feinstein of San Francisco and Pete Wilson of San Diego, who by then had moved onto the U.S. Senate – who were considered experts on managing growth. In the debate that year, Feinstein, prohibited by the rules from using notes, wrote “growth” on her hand to remind her to hammer Wilson about it. Wilson won, and everybody expected him to bring the same innovative growth management efforts to Sacramento that he had used in San Diego. 1991-1996: At The Bottom By the time Wilson was inaugurated in January of 1991, however, the growth boom was past its peak. Housing prices began to flatten out and production began to decline. The joke was Wilson just wished he had some growth to manage. As expected, Wilson moved forward with his “Strategic Growth” initiative, but it did not come out until 1993. By then, with California in the depths of the recession, Wilson had become a more conservative, business-oriented Republican and the focus of his growth management effort was an attempt – unsuccessful, as it turned out – to weaken the California Environmental Quality Act. He also rejiggered the property tax allocation formula so that cities and counties got even less property tax than before, thus making housing development in particular a money loser for almost every local government. This was the era of gloom, especially in Los Angeles, which was hit hard by both an economic downturn and other disasters, such as the riots of ’92, the fires of ’93, the earthquake of ’94. At one real estate developers’ conference during this period, the keynote speaker told each developer to look to his left and his right and make note of his neighbors, because within two years, neither of them would be in the real estate business. The speaker turned out to be right. Home prices, which had risen 70% in the six years before 1989 (from $114,000 to $196,000), dropped 10% in the six years afterward (from $198,000 to $178,000). Developers told themselves to “stay alive ’til ’95.” As is often the case during recessions, traffic congestion alleviated and housing affordability improved dramatically. And this took the edge off of growth-control madness. There were 79 land-use measures on local ballots in 1990; the next year there were 18. In retrospect, however, the world of planning and development in California used this breather to right itself. A major redevelopment reform passed the Legislature during 1993. Local governments gradually figured out how to win the two-thirds elections required by Proposition 13 to pass local bonds for public improvements. The use of Mello-Roos bonds and other alternative methods of financing infrastructure became popular. State and federal biologists refined the process of habitat conservation planning, leading to more up-front plans to set aside sensitive land. The California Supreme Court, gradually becoming more conservative because of Republican appointments, put an end to the endless tape-loop of CEQA analysis in , 52 Cal.3d 553 (1990), thus converting CEQA from a project-killer into a mitigation machine. 1996-2001: On The Rebound Beginning in 1996, housing production began to increase and home prices started to rise again. The Bay Area had never really crashed – prices had stayed high all through the recession – but Los Angeles had gone deeply into a hole and was finally, gradually, beginning to emerge. The office market was no longer hot. Coming out of the recession, the biggest driver of real estate was retail – and, more specifically, “entertainment retail.” Old Pasadena, Third Street Promenade in Santa Monica, the Gaslamp District in San Diego, Irvine Spectrum and Valencia Town Center all came to life. The success of these places suggested a renewed interest among Californians in experiencing urban places, either real or fabricated. It also led to the greatest movie-theater construction boom since the 1920s, much of it financed with redevelopment dollars by cities desperate to anchor either a real downtown or an ersatz one. Meanwhile, paradoxically, both housing prices and housing production began to go upward quickly, the apparent result of a long period of housing underproduction during the ’80s and early ’90s. Critics of planning also blamed the growth control measures that were put into place during the boom years. Unlike previous boom times, however, this one went forward without apartments. A variety of factors – including the change in the depreciation laws during the ’80s, construction defect liability laws, and growing political resistance to density – led to an almost exclusive focus on single-family homes during the late ’90s. But there was a growing mismatch between new homes and people. Mostly because of land availability, single-family construction drove deeper into the Inland Empire and the Central Valley. But because of the maturing of immigrant families from the ’70s and ’80s, most of California’s additional residents lived in older and increasingly crowded areas closer to the coast, such as Los Angeles, Santa Clara, and Orange counties. Once the recession was over, everything seemed to kick-start. Home prices rose by half during this period, reaching the quarter-million-dollar mark in 2001. Construction of infrastructure, including parks and public open space, moved forward rapidly. New freeway and tollway segments were built; local governments passed transportation taxes and bonds; and state voters approved bond issues in vast numbers. At some point during the 1990s, pollsters realized that California voters were not sensitive to the in any proposed bond issue; if they were for, say, schools or parks or prisons, they’d pass a billion-dollar bond issue just as easily as a million-dollar one. The size of state school bonds grew from $800 million in 1988 to $3 billion in 1996 to $13 billion in 2002. Land-use ballot measures picked up again during the late ’90s – as would be expected by the uptick in development. By 2000, there were 70 measures on ballots around the state. But this time the effect was different. Ballot measures on growth were not, generally speaking, radiating more broadly across California. Instead, they were appearing again and again on the ballot in the same areas – San Diego, Ventura, Alameda, Contra Costa, and Sonoma counties especially. California was developing two different political cultures about growth – one along the coast, where everybody expected to vote on land use, and one inland, where they didn’t. 2001-2006: The Infill World During the last five years, the median home price has doubled to more than a half-million dollars. Although prices have leveled off in the last year or so, they have nevertheless tripled since the low point a decade ago and they’ve almost quintupled since was founded in 1986. In fact, home prices have gone so high, 2% of all California adults now have licenses to sell real estate. This rapid price rise has had huge ramifications by making home purchases almost impossible for even upper-middle-class folks, and fostering the widespread use of negative amortization, interest-only mortgages, and other creative finance tools. But the half-million-dollar house has also revolutionized planning and development, at least in coastal areas, in one important way: It makes residential infill projects profitable. As a result, California has seen more condo construction during the last five years than in the previous 20. And those condos have not, by and large, been in suburban locations. Generally speaking, they’ve been in existing urban areas like Oakland, San Jose, Pasadena, and San Diego. In many cases – including Old Pasadena and downtown San Diego – they have piggybacked on entertainment retail and new transit lines that were built during the ’90s. And these condo developments often include retail, office, and other mixed-use components. The bottom line is that home prices aren’t the only thing that have changed in California over the last 20 years. Population demographics, the economy, and the built environment have begun to change in significant ways that the first issues of could only hint at. The best way to say it is this: California in 1986 was still a mostly suburban state – growing fast but in a fairly conventional way. Today, California is undeniably urban, and it will only become more urban in the future. Yet the planning system itself – which is, of course, the underlying subject of every story – doesn’t bend to this new reality very easily. The world of general plans, the Subdivision Map Act, CEQA, and redevelopment was pretty much fixed by the end of the 1970s. This system has received a few nips and tucks since then, but there has been no fundamental change. And for many reasons – among them term limits in Sacramento – there is likely to be no fundamental change in the near future. It’s not easy to predict the trends that lie ahead. No one really knows how deep we’ll go into a real estate recession now, or how long it will be before we bounce out of it, or even what bouncing out of it will look like. Nor can we predict whether inspired political leadership will lead to sweeping reform – as has happened in some states. Looking back, however, it is clear that came on the scene toward the end of a 20-year period of pretty significant change in the land use system – general plan law was revised, CEQA was born and expanded, redevelopment came into common use, Proposition 13 fouled up everything. The last 20 years have been a period of creeping incrementalism. Right now, the next 20 don’t look much different. And that means that, more and more often, planning in California will seems like a workaround of the system rather than constructive use of it.

After five years of planning, dozens of public meetings and a couple advisory elections, Humboldt County has abandoned a plan to establish redevelopment project areas in rural communities spread around the county. The Board of Supervisors voted unanimously in September to abandon the controversial plan, and supervisors said they may even shut down the redevelopment agency. The decision pleased the leaders of some special districts that feared a loss of revenue and control, as well as both development interests and slow-growth activists — all of which may show just how unpopular the redevelopment proposal was. Still, some people are lamenting a lost opportunity to invest money for economic development purposes, infrastructure and affordable housing in struggling communities with few resources. “It was a double-edged sword,” said Steve Paine, general manager of the Willow Creek Community Services District (CSD). Redevelopment could have helped fund a needed wastewater treatment plant for the community, which lies on Highway 299 in the coastal mountain range east of Eureka. However, the county appeared to be setting up a “fiefdom,” and some of the project area boundaries would have diverted needed revenue away from small special districts, Paine said. “It was poorly presented by the county. It took my board a year and a half to understand it,” Paine said. Redevelopment is a tool used predominately by cities. Only 30 of California’s 58 counties have redevelopment agencies, according to the state controller’s office. The Humboldt County redevelopment plan was an attempt to address conditions in small communities that have been hurt by declines in the timber business, the fishing industry, or both. The plan proposed to fund brownfield cleanup at closed lumber mills, infrastructure improvements such as wastewater and water systems, tsunami warning systems in some coastal communities, and affordable housing rehabilitation and development. A study estimated that redevelopment would generate $66 million in tax increment over 45 years. The plan originally included all or parts of eight unincorporated communities in a noncontiguous redevelopment project area: Alton, Fields Landing, Glendale, Manila, Orick, Redway, Samoa/Fairhaven and Willow Creek. However, community activists and special district leaders in some of the communities opposed the plan for various reasons. In Redway, a very small community amidst the redwood trees of the south county, redevelopment met resistance because it could encourage growth. Residents in the coastal community of Manila took offense to having their town called “blighted.” In Glendale, concerns arose about the possible use of eminent domain for affordable housing development. A lawsuit was threatened in Samoa because there is already some new development in the old mill town. The redevelopment plan also got dragged into the larger battle over growth in Humboldt County. For several years, a group of landowners, developers and business interests called Humboldt Economic and Land Plan (HELP) has fought the county over an ongoing general plan update, a new housing element, and anything else concerning growth. Kay Backer, a Sacramento-based consultant to HELP, said the county refused to work with the group, with a home builders organization and with local citizens in devising the redevelopment plan. “The way it was proposed, it was taking money away from the fire districts and putting it under the control of the county” Backer said. Trust of county government is low, she said. In November 2005, community service districts in Manila and Redway conducted advisory elections on whether the county should include the communities in the redevelopment project area. In Redway, 85% of voters said no to redevelopment; In Manila, 54% rejected the idea. The Manila CSD Board of Directors struggled with the redevelopment plan, said General Manager Judy Hollifield. Ultimately, though, the board organized opposition because of concerns about the district losing revenue to the county’s redevelopment agency. County officials ended up deleting both Redway and Manila from the project area. In June, the Board of Supervisors directed staff members to further pare back the plan. The revisions proposed dividing up revenue so that individual communities would be assured 50% of the local tax increment, while the other half would go to a combined fund. Also, the plan eliminated redevelopment bond financing for the first five years of implementation. The changes, Community Development Director Kirk Girard wrote in a staff report, shift the focus “from the development of a centrally planned slate of projects for bond financing to a community based selection of individual projects that can be funded with grants and loans using tax increment as matching funds. Over time, the same investment levels could be achieved but the new strategy will require increased efforts to secure funding from outside sources.” But even the more modest plan turned out to be too much. During a September 18 meeting at which redevelopment opponents again heavily outnumbered supporters, the Board of Supervisors voted unanimously to drop redevelopment altogether. “The hue and cry from the affected communities was just too much,” said Board of Supervisors Chairman John Woolley. Paine said the decision was a blow to his CSD in Willow Creek. Redevelopment could have provided $2 million to $3 million for the town’s first wastewater treatment system. The district, which serves more than 2,000 people, still wants to move ahead with the project, but funding is very uncertain now, he said. The lack of a wastewater treatment system “will inhibit having a new market. It will inhibit a new hotel. It will stifle multi-family residential growth,” Paine said. In addition, Willow Creek has a 42-acre former mill site that cannot be reused without sewer service, he said. Backer, of the group HELP and who previously served on a joint city-state redevelopment board for downtown Sacramento, said redevelopment “could be a positive force.” And she readily conceded that portions of the county need infrastructure investments, economic development and affordable housing. But, she contended, the county cannot pursue those things until it has a better general plan. “Part of the problem is that they haven’t addressed the need for so long. The no-growthers haven’t wanted to talk about roads or sewers or other infrastructure,” Backer said. “ Supervisor Woolley conceded that completion of a new general plan probably should have preceded the redevelopment effort. With redevelopment off the agenda, the county will now focus on the general plan update, he said. Contacts: Steve Paine, Willow Creek Community Services District, (530) 629-2136. Kay Backer, Humboldt Economic and Land Plan, (916) 486-2638. Judy Hollifield, Manila Community Services District, (707) 444-3803. Humboldt County redevelopment website: http://co.humboldt.ca.us/planning/econdev/redevelopment.asp

A state project to convert 225 acres of Colusa County farmland into wetlands and waterfowl habitat is not exempt from environmental review, the Third District Court of Appeal has ruled. The state Wildlife Conservation Board (WCB) argued that four possible exemptions to the California Environmental Quality Act (CEQA) applied to the project, but the court rejected all of them. The court noted that the project involves more than $100,000 worth of construction, including extensive grading and re-routing of irrigation canals. “There may be environmental costs to an environmentally beneficial project, which must be considered and assessed,” the court ruled. The project was the first one approved under the North Central Valley Conservation Reserve Enhancement Program. Five years ago, the conservation board and other state agencies negotiated the purchase of a conservation easement on farmland owned by Leroy Traynham III adjacent to a 2,700-acre corridor of wetlands and riparian habitat along Ridge Cut Slough. The property is zoned “exclusive agriculture” and it has been used to grow rice, row crops and Sudan grass. The property is covered by a Super Williamson Act contract, which provides tax breaks in exchange for the property not being developed for 20 years. The conservation easement incorporated a waterfowl habitat management plan that called for extensive groundwork. The plan called for reconstructing existing levees in a meandering fashion, constructing interior levees, building or improving ditches to facilitate flooding of individual wetland units, installing water control structures, constructing other channels and swales, building higher mounds, and planting tules, willows and cottonwoods. The work was estimated to cost $111,000 and would result in 145 acres of seasonal and permanent wetlands, and 80 acres of uplands. The Department of Fish and Game (DFG) declared the project exempt from CEQA. The conservation board approved the project in February 2002 and filed a notice of exemption a few days later. The California Farm Bureau Federation sued the state agencies, the county and Traynham, alleging violations of CEQA and the Williamson Act. The county filed a cross-complaint alleging violations of the Williamson Act and county ordinances. Colusa County Superior Court Judge John Tiernan then issued a preliminary injunction blocking the project. After the state and Traynham amended the conservation easement to permit commercial grazing, the county dropped its Williamson Act suit but raised new issues related to CEQA. Judge Tiernan consolidated the Farm Bureaus and countys lawsuits and ultimately ruled the project was not exempt from CEQA. The court also awarded the Farm Bureau and the county attorney fees. The state appealed, but lost again at the Third District. During the administrative process, the state relied on a Class 13 exemption in CEQA Guidelines § 15313, which exempts from environmental review projects that consist of the acquisition of lands for fish and wildlife conservation purposes. The state argued that the exemption applied even if the land were not in its natural condition. The appellate panel disagreed. “The language simply does not stretch to cover acquisitions for the purpose of physically constructing or creating and actively managing new wildlife habitat,” Justice Tani Cantil-Sakauye wrote for the court. “ he property has been actively farmed, growing row crops, rice and most recently Sudan grass. It is not existing wetland habitat. The purpose of the acquisition is to convert the property into a habitat, not to preserve a natural condition or .” The state also argued the project was eligible for a Class 4 exemption for minor alterations to land, a Class 25 exemption for transfers of land ownership to preserve open space or habitat, and a “common sense” exemption because a change in land use from agriculture to wildlife habitat is not an adverse environmental impact. The court rejected all three arguments. “ undamentally, the Class 4 exemption applies to only ‘minor’ alterations, which this project is not,” Cantil-Sakauye wrote, citing the management plan’s lengthy list of grading and drainage improvements. “The work will clearly alter existing drainage patterns and elevations of the land. It will change the nature of the land from level fields to wetlands. This is not a ‘minor’ physical alteration to the land.” The Class 25 exemption does not apply because it does not cover the management plan component of the project. The common sense exemption does not apply because the project “is not a mere passive change in use.” The project involves use of heavy equipment, and legitimate questions have been raised about the amount and source of water for the wetlands, the court determined. In an unpublished portion of the opinion, the Third District upheld the lower court’s award of attorney fees under the theory that the lawsuit affected public policy and benefited the general public. “ ll parties, including the state agencies, viewed this first project as a general test of the agencies’ position that projects changing agricultural land to wildlife habitat are exempt from the environmental review requirements of CEQA,” Cantil-Sakauye wrote. “This litigation has resulted in a ruling that, at least as to projects in material respects similar to this one, the DFG and WCB must undertake at a minimum an initial study under CEQA.” The Case: , No. C049919, 06 C.D.O.S. 9057, 2006 DJDAR 12962. Filed September 21, 2006. The Lawyers: For the Farm Bureau: Alan Bick, Gibson, Dunn & Crutcher, (949) 451-3800. For the conservation board: Deborah Wordham, attorney general’s office, (916) 445-9555. For Colusa County: Timothy Taylor, Somach, Simmons & Dunn, (916) 446-7979.

In a ruling from the Sonoma County wine country, the Ninth U.S. Circuit Court of Appeals has apparently signaled its intent to continue with a broad reading of the Clean Water Act. The court ruled that the Clean Water Act’s provisions apply to a pond in an old gravel pit that is separated from the Russian River by a man-made levee. The decision marks the Ninth Circuit’s first interpretation of the recent U.S. Supreme Court ruling in , 126 S.Ct. 2208 (see , July 2006). In that case, the high court divided 4-4-1 over the reach of the Clean Water Act (CWA), with Justice Anthony Kennedy authoring a concurring opinion that fell between the four-vote blocs. “In a 4-4-1 decision, the controlling opinion is that of Justice Kennedy who said that to qualify as a navigable water under the CWA, the body of water itself need not be continuously flowing, but that there must be a ‘significant nexus’ to a waterway that is in fact navigable,” Ninth Circuit Chief Judge Mary Schroeder wrote. In the case filed by Northern California River Watch against the City of Healdsburg, the Clean Water Act applies because “pond waters seep directly into the navigable Russian River,” the court ruled. The decision, which pleased many environmentalists, has spawned a great deal of analysis and commentary by water and land use lawyers. Property rights attorney Michael Berger of Manatt, Phelps & Phillips argued in a column that the Ninth Circuit was wrong to base its decision on Justice Kennedy’s concurring opinion in . The Ninth Circuit, Berger wrote, improperly ignored the other four justices with whom Kennedy joined in overturning a lower court’s decision to support the Army Corps of Engineers’ broad reading of the Clean Water Act. In a response op-ed, Norman Dupont, of-counsel at Richards, Watson & Gershon, wrote, “ hat the Ninth Circuit did in was a practical counting of the actual votes: the Stevens group had four votes for a broad reading of the Clean Water Act. Kennedy was a fifth vote supporting a reading of the Clean Water Act to allow for imposition of federal jurisdiction and regulation of a wetlands area as long as there was a convincing showing of an actual connection between the wetlands or pond area and a navigable waterway.” In an advisory, attorneys at Weston, Benshoof, Rochefort, Rubalcava, MacCuish would only say that “it remains to be seen whether other circuits” will adopt Kennedy’s significant nexus test. The issue for lawyers is what to do when the Supreme Court essentially casts a tie vote, as it did in . In that case, Justice Antonin Scalia and three others voted to significantly narrow the Corps of Engineers’ power to regulate activities affecting wetlands. They contended the Clean Water Act extends only to navigable waters and continuously flowing surface waters with direct connections to navigable waters. However, Justice John Paul Stevens and three others voted to uphold the Corps’ current regulatory approach that covers many types of surface waters and wetlands. Kennedy cast the pivotal vote with the Scalia bloc to overturn the Sixth Circuit decision for the Corps. However, Kennedy’s concurring opinion rejected both the Corps’ existing, broad regulations and Scalia’s narrow statutory interpretation. Under , 430 U.S. 188 (1977), when the court is fragmented, “the holding of the court may be viewed as that position taken by those members who concurred in the judgments on the narrowest grounds.” In the River Watch decision, Chief Judge Schroeder cited in determining that Kennedy “provides the controlling rule of law.” The facts on the ground are more straightforward. Basalt Rock Company began excavating gravel and sand from a site near the Russian River during the late 1960s. The resulting pit, known as Basalt Pond, is one-half mile long and one-quarter mile wide, and it fills with water from an underground aquifer. Although a levee separates the pond from the Russian River, there is little dispute that water in the pond drains into the shared aquifer and infiltrates the river. In 1978, the City of Healdsburg began discharging treated wastewater into Basalt Pond. Although the city received a state permit, it did not obtain a National Pollutant Discharge Elimination System (NPDES) permit. The federal Environmental Protection Agency issues NPDES permits to enforce the Clean Water Act. In 2001, River Watch sued the city, arguing that it was violating the act by discharging into the pond without a NPDES permit. District Court Judge William Alsup ruled for the environmental group. The Ninth Circuit, which appears to have waited for the decision to come down, upheld Alsup. According to the Ninth Circuit, the leading case on wetlands regulation under the Clean Water Act remains , 474 U.S. 121 (1985). In that case, the Supreme Court ruled that “the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands” may be regulated as “waters of the United States.” Justice Kennedy’s significant nexus test in and an earlier decision that narrowed the Clean Water Act, , 531 U.S. 159 (2001) (see , May 2001), have only clarified , according to the Ninth Circuit. “ t is apparent that the mere adjacency of Basalt Pond and its wetlands to the Russian River is not sufficient for CWA protection,” Schroeder wrote. “The critical fact is that the pond and navigable Russian River are separated only by a man-made levee so that water from the pond seeps directly into the adjacent river. This is a significant nexus between the wetlands and the Russian River and justifies CWA protection under the ACOE regulations and current Supreme Court jurisprudence.” “Moreover,” Schroeder continued, “there is an actual surface connection between Basalt Pond and the Russian River when the river overflows the levee and the two bodies of water commingle.” Healdsburg sought a Clean Water Act exception for waste treatment systems. However, the court ruled that the exception applies only to self-contained treatment systems or waters that are incorporated into an NPDES permit. Neither of those conditions applied here. The Case: , No. 04-15442, 06 C.D.O.S. 7301, 2006 DJDAR 10537. Filed August 10, 2006. The Lawyers: For River Watch: Charles Tebbutt, (541) 485-2471. For Healdsburg: Peter McGaw, Archer Norris, (925) 930-6600.

Two rivers that have been dry for decades because of 20th Century water diversions may flow again thanks to some reverse engineering. However, while restoration of the Owens River does appear to be proceeding, returning the San Joaquin River to a year-round waterway is anything but guaranteed. Although the City of Los Angeles continues to battle environmentalists and Inyo County in court, Los Angeles earlier this year began work on a project that will send water to a 62-mile stretch of the Owens River. The city’s Department of Water and Power faces a July 31, 2007, deadline to finish the plumbing project. While the fate of the Owens River — or at least the plight of the hapless landowners and politicians in the Owens Valley — has been broadly known since 1974, when Roman Polanski directed Jack Nicholson, Faye Dunaway and John Huston in “Chinatown,” the diversion of the San Joaquin River to Central Valley farmers has not received widespread attention. Considering the obstacles that the San Joaquin River restoration project faces, a Hollywood classic couldn’t hurt the effort. In September, the Bureau of Reclamation, the Natural Resources Defense Council and the Friant Water Users Authority announced that they had settled an 18-year legal dispute over the operation of Friant Dam and would return salmon to the river. The bureau operates the 60-year-old dam on the San Joaquin River, about 20 miles north of Fresno. The NRDC has spearheaded conservationists’ and fishing group’s lawsuits over dam operations. The Water Users Authority is a collection of 22 southern valley water agencies that get water from Millerton Lake, behind Friant Dam. Under the settlement, the Bureau of Reclamation agreed to operate the dam so that there would be continuous water flows in the San Joaquin River between Friant Dam and the Merced River, near the town of Patterson. For decades, about half of that 150-mile stretch of the San Joaquin has been dry except for the occasional surge of flood waters. Friant contractors would pay $7 per acre-foot of water annually into a restoration fund for channel and structural improvements. To ensure adequate water for the farms and cities that rely on diversions from Friant, the settlement calls for development of a water management program that includes water recycling, reuse and new exchanges or transfers. The settlement was announced on the steps of the federal courthouse in Sacramento and earned endorsements from both House Water and Power Subcommittee Chairman George Radanovich (R-Mariposa) and Democratic Sen. Dianne Feinstein. Radanovich called the settlement “a momentous step.” However, the settlement will go nowhere without the approval of Congress, and any party to the settlement could kill the agreement if Congress doesn’t act before year’s end — meaning that lawmakers would have to pass something during a lame-duck session after the November election. Although federal officials and the boards of 22 water districts agreed to the settlement, plenty of opposition exists, led by U.S. Rep. Devin Nunes (R-Visalia). He represents much of the area irrigated and plumbed by Friant water and contends that the river project could hurt farmers dependent on federal water. “I think this is a gross misuse of public funds,” Nunes told the . “You’re going to spend $800 million to bring back some fish?” In fact, both the cost of the project and the funding for it remain at issue. The project is estimated to cost $250 million to $800 million, depending largely on how much flood control levee work is necessary. Opponents such as Nunes doubt even the larger figure. If Congress approves, the federal government would contribute $250 million to the project, while water customers would pay at least $300 million via annual fees. The settlement also anticipates the state will contribute at least $100 million either from the $5.4 billion Proposition 84 bond for water, parks and coastal resources, or from the $4 billion Proposition 1E bond for flood control, according to Bureau of Reclamation spokesman Michael Jackson. At this point, only the fee revenue is assured. Farmers along the dewatered stretch of river have raised flood control concerns, as have local districts responsible for providing flood protection. Other farmers who have voiced support for the legal settlement say they can back only a project that returns salmon to the river on an experimental basis — a potential hitch in Congressional negotiations. Still, the existence of the settlement after 18 years of courtroom battles suggests the project may go forward. Jackson said planning, design work and environmental reviews have already begun, and interim flows for experimental purposes are scheduled to begin in 2009. The Owens River litigation is even older, having produced no fewer than six published court decisions since the early 1970s, including the landmark , 32 Cal.App.3rd 795 (1973), in which an appellate court ruled that Los Angeles’ continued extraction of groundwater from the Owens Valley required an environmental impact report. In fact, Superior Court Judge Lee Cooper cited that case last year when he imposed a fine of $5,000 per day on Los Angeles because the city failed to complete the Lower Owens River project by a court-ordered September 2005 deadline. Originally proposed in 1991, the project calls for restoring 62 miles of river and riparian habitat as mitigation for the city’s pumping of groundwater. The approximately 18,000 acre-feet of water needed for the river restoration would come from Los Angeles’s usual exports. In September, lawyers for the Department of Water and Power and for the Sierra Club argued before the Fourth District Court of Appeal. At issue was Cooper’s decision to prohibit Los Angeles from using a second Owens Valley aqueduct unless it completes the Lower Owens River project. The Fourth District had earlier issued a tentative ruling saying it would uphold Cooper; a final decision is expected soon. “The injunction, I think, has had an obvious effect,” said Sierra Club attorney Laurens Silver, who noted the city began work on the delayed project after Cooper’s ruling. “They should have implemented mitigation for this 32 years ago.” The latest arguments may be academic, though, as the city is reportedly on schedule to start directing water into the dry riverbed in early 2007. The ambitious project calls for restoring the entire riparian system, including a delta at Owens Lake, where the city is already implementing a large-scale dust control project by turning the dewatered lake into wetlands and grasslands. Contacts: Bureau of Reclamation South-Central California office, (559) 487-5116. San Joaquin River settlement: http://www.usbr.gov/mp/mp140/SJRSI/index.html Laurens Silver, Sierra Club, (415) 383-7734.

Preservationists have won at least a temporary victory regarding a big-box home improvement store that is proposed for the site of an historic IBM building in San Jose. The Sixth District Court of Appeal upheld a trial court’s decision to reject the City of San Jose’s environmental impact report for a proposed Lowe’s Home Improvement Warehouse because of an inadequate analysis of a reduced-size project alternative. The city had accepted Lowe’s contention that any modification to the proposed 162,000-square-foot, single-story, rectangular structure with an adjacent surface parking lot was not feasible. But the Sixth District ruled, “Neither the FEIR nor the administrative record contains any meaningful detail or independent analysis of the validity of Lowe’s claim that the reduced-sized alternative is infeasible, and the City Council made no specific finding validating that claim.” More than three years ago, Lowe’s proposed one of its standard big boxes for an 18.75-acre site owned by IBM near Poughkeepsie and Cottle roads in south San Jose. The site contains Building 025, a 69,000-square-foot structure consisting of five wings connected by a narrow spine. Constructed during the mid-1950s, the building is considered an excellent example modern industrial architecture. In addition, IBM engineers invented the “flying head” disk drive, a major advance in computer technology, in Building 025. Lowe’s proposed to demolish Building 025. The company would build its store, garden center and parking lot on 13 acres, and later develop additional retail space on the rest of the site. The San Jose Planning Commission voted to certify the EIR, but the Preservation Action Council (PAC) appealed to the City Council. The preservation group argued that the EIR did not consider project alternatives that would allow Lowe’s to build a full-sized store and garden center while still preserving Building 025. The City Council denied the appeal, certified the EIR and approved the project. Preservationists then filed a lawsuit alleging the city had violated the California Environmental Quality Act (CEQA) by failing to analyze a reasonable range of alternatives, not adopting reasonable mitigation measures and alternatives, and not responding to comments suggesting feasible alternatives. Santa Clara County Superior Court Judge Leslie Nichols ruled for PAC, finding that there was not substantial evidence to reject a reduced-scale project alternative, that an alternative presented by PAC was “substantially different” from alternatives in the EIR and deserved study, and that the city had not adequately responded to comments. In an appeal filed by Lowe’s, IBM and the city, the Sixth District affirmed the trial court’s decision. The EIR had included a “project design alternative” that provided the square footage desired by Lowe’s but in a two-story configuration. The EIR also considered a couple variations of a “reduced-scale” store of 94,000 square feet. All of the alternatives would allow for retention of most or all of Building 025. Lowe’s responded that it has only two project sizes — 162,000 square feet and 137,000 square feet — and that it builds only single-story facilities with surface parking. Because San Jose is a large city, it must have the 162,000-square-foot model. Anything else would be infeasible because it would put Lowe’s at a competitive disadvantage, the company contended. The city apparently accepted Lowe’s contentions at face value. The City Council, which addressed only the two-story alternative, found that the project would cause “significant and unavoidable” impacts to historic resources but that no feasible alternatives had been proposed. The council also adopted findings of overriding consideration based on the project’s economic benefits. The Sixth District found the city’s approach lacking. “The sole basis mentioned in the FEIR to support the proposition that the reduced-size alternative was infeasible was Lowe’s belief that a smaller store would place it at a ‘competitive disadvantage’ in a ‘large market such as San Jose,’ due to its inability ‘to meet the demands and requirements of a large market store in terms of throughput and merchandise availability,’” Justice Nathan Mihara wrote for the court. “The mere fact that an alternative might be less profitable does not itself render the alternative infeasible unless there is also evidence that the reduced profitability is ‘sufficiently severe as to render it impractical to proceed with the project,’” Mihara continued, citing , (1988) 197 Cal.App.3d 1167, 1181. “The administrative record does not contain any evidence that the reduced-size alternative would be so much less profitable and produce so many fewer tax dollars that the project would be impractical.” The court also found that the EIR’s discussion of the reduced-size alternative was unclear because the size of the alternative was ambiguous. The court rejected PAC’s contention that its alternative was substantially different from those in the EIR, but the court agreed that the city’s responses to comments regarding alternatives “appear inadequate.” After the appellate panel issued its ruling, city officials said they would release a revised EIR this fall. The Case: , No. H028201, 06 C.D.O.S. 7205, 2006 DJDAR 10233. Filed August 8, 2006. The Lawyers: For PAC: Susan Brandt-Hawley, (707) 938-3908. For the city: Nora Frimann, city attorney’s office, (408) 277-4454. For Lowe’s: Arthur Friedman, Steefel, Levitt & Weiss, (415) 788-0900. For IBM: Ronald Van Buskirk, Pillsbury, Winthrop, Shaw, Pittman, (415) 983-1000.

Changes to redevelopment law that are short of sweeping but still significant enough to stir the industry won legislative approval this year. The measures tighten blight requirements, ease challenges to redevelopment decisions and potentially limit use of eminent domain, but the bills do not go as far as originally proposed. The redevelopment bills are probably the most significant land use bills passed by lawmakers during 2006, a year in which even modest housing, flood and environmental legislation failed. In fact, this was the quietest year for housing legislation in a while. Of course, lawmakers did pass a series of measures placing $37 billion worth of infrastructure and housing bonds on the November ballot. The redevelopment bills emerged from a series of legislative oversight hearings following the U.S. Supreme Court’s decision in , in which the court upheld use of eminent domain for economic development purposes. Because such an action could occur in California only under the guise of redevelopment, lawmakers focused on the Community Redevelopment Law and ultimately approved eight related bills. Throughout the session, redevelopment advocates continued to argue that did not change existing law in California and therefore the legislative response was unwarranted, even if politically inevitable. “It’s amazing to me that a case of such little legal significance should create so much political reaction,” said Brent Hawkins, general counsel of the California Redevelopment Agency (CRA). The cornerstone legislation is SB 1206, by Sen. Christine Kehoe (D-San Diego). According to a fact sheet from her office, the bill tightens the definition of “blight” by: • Requiring blight descriptions to contain “specific, quantifiable evidence.” • Requiring findings to be supported by “clearly articulated and documented evidence.” • Repealing an exception to blight finding requirements for antiquated subdivisions with small and irregular parcels. • Reinstating the ban on placing unblighted property into redevelopment project areas. • Mandating that land use findings link to local general plans and zoning standards. • Requiring local officials to document blight before merging redevelopment projects. “Kehoe correctly recognized that blight is the gateway to eminent domain by redevelopment agencies,” Hawkins said. The bill also increases state oversight by requiring local governments to send redevelopment plans and amendments in advance to the Department of Finance and the Department of Housing and Community Development for fiscal analysis and comment. The legislation also gives redevelopment opponents more time to challenge decisions via referendum or lawsuit, and eases the attorney general’s ability to intervene in those lawsuits. Although she amended her bill by decreasing some proposed requirements, Kehoe made clear that she thought some cities are abusing redevelopment and that the state — which backfills school districts that lose revenue to redevelopment agencies — should play a greater role. The California Redevelopment Association conceded that SB 1206 improved during negotiations. Still, in an analysis, the CRA stated, “Certain provisions changing and restricting the definition of blight and adding unnecessary, duplicative bureaucratic layers to the redevelopment process are objectionable to CRA.” Another Kehoe bill, SB 53, and SB 1809 (Machado) require redevelopment agencies to be clear up front about the possible use of eminent domain, while SB 1210 (Torlakson) alters the eminent domain process for all public agencies, in part by making it more difficult for agencies to obtain possession prior to a court decision on compensation. In contrast to the redevelopment reforms, a package of eight flood bills failed to escape the state Senate. Among the bills was AB 1899 by Assemblywoman Lois Wolk (D-Davis), which would have barred new development in areas lacking 100-year-flood protection and in areas that would not soon have 200-year protection. Other bills would have required cities and counties to share liability with the state for new levees (AB 1528 — Jones), and would have required cities and counties to consider flood protection when writing general plans (AB 802 – Wolk). The failure of the flood bills was a “big loss,” said Planning and Conservation League Executive Director Gary Patton, because there is a need to prevent additional flood-prone development. Patton’s group and other environmentalists worked hard on AB 1899. In fact, said Patton, there was little opposition in the Legislature to AB 1899. Instead, the bill stalled when Senate President Pro Tem Don Perata (D-Oakland) held it up, saying that he did not want to rush a major policy change. More than a few people noted that Perata held up AB 1899 and other flood bills opposed by the California Building Industry Association (CBIA) only days after the group donated $500,000 to a campaign committee controlled by Perata. “It was an effort by the building industry — on behalf of a few developers who are ready to get their entitlements in the next few years — to delay things,” Patton charged. Perata denied there was any connection between stalling the legislation and campaign contributions, and CBIA Vice President Tim Coyle said Wolk’s legislation “was just a blunt, unabashed assault on housing.” The debate should be about public safety and infrastructure, not about growth, Coyle contended. “This got started off on the wrong foot. It started out as a growth-control measure,” Coyle said. “If we don’t build one more home, there is still a risk of flooding in Sacramento and in Stockton.” Coyle said the various factions have a lot more in common regarding flood safety than people realize. “The homebuilders are for getting to 200-year flood protection,” he said. But bills that attack new housing and nothing else are not helpful, he contended. Wolk agreed that more needs to be done to protect people already living in harm’s way. But, she said, new subdivisions only compound the problem. “We continue to build in places that were under three feet of water or more twice in the last 20 years. We should just stop,” Wolk said. “There’s not enough public money in the world to fix a 19th Century levee system. And, besides, the public shouldn’t have to subsidize private speculation.” The disaster wrought by Hurricane Katrina provided lawmakers with an opportunity to address flooding issues in the Central Valley, where an estimated 500,000 people live in areas lacking 100-year flood protection. The Assembly approved eight bills that sought to discourage new development in flood-prone areas, improve planning and increase public notification, but the Senate never voted on the legislation. “The BIA was able to drive a wedge between the Legislature’s members, and the governor sat on the side and watched,” Wolk charged. The failure of a flood bill package means the state lacks updated policies for spending the $4 billion contained in Proposition 1E, lamented both Wolk and Patton. The state could end up spending the money immediately without addressing the land use patterns that have helped cause the problem, Patton said. Besides supporting the flood bills, environmentalists largely played defense against bills to overhaul the California Environmental Quality Act (CEQA), said Bill Allayaud, state legislative director for the Sierra Club. High on the hit list was SB 1800 (Ducheny), a multi-faceted bill backed by the Schwarzenegger administration and the CBIA aimed at easing housing development. “They basically were trying to drive a truck through CEQA,” Allayaud charged. “You could have this broad, sweeping EIR, and then 15 years later somebody could propose a subdivision and say the review has already been done.” The bill would have eliminated subsequent environmental review of projects that comply with a required “housing opportunity plan” that was the subject of an environmental impact report. But the CBIA’s Coyle said the CEQA provision was “a non-issue.” “CEQA has become kind of the third rail in California. You can’t even utter the words without people overreacting,” Coyle said. Instead, the heart of SB 1800 was a provision requiring cities to identify land to meet the need for 20 years worth of new housing, and zone land for 10 years of housing. “It’s a real simple idea that if we grow by a certain amount in these communities around the state, you’ve got to identify the land,” Coyle said. The bill emerged from lengthy talks between the CBIA and the League of California Cities. Ultimately, though, the league’s board voted not to support the legislation. The concept of a 20-year housing plan is not a bad idea, said Sande George, lobbyist for the California Chapter of the American Planning Association. But there were problems with SB 1800, especially the lack of funding to do the required planning and document updates, she said. “It was a huge change in planning law and would have cost an awful lot of money to implement,” George said of AB 1800. Both the CBIA and SB 1800 author Sen. Denise Ducheny (D-San Diego) have indicated they will try again next year with a 20-year housing plan mandate. Probably the most significant housing bill that did pass was AB 2511 (Jones). The bill includes a number of measures intended to strengthen anti-discrimination laws. It also requires local governments to decide within 90 days on a project if at least 49% of the units are affordable to very low- or low-income households, and limits conditions local governments may impose on housing developments. Additionally, the bill permits courts to sanction cities and counties for not filing annual general plan status reports — something that many cities and counties do not submit every year. League of cities lobbyist Bill Higgins said the final provision is a “poison pill” for cities. “This comes on the tail end of a lot of changes in the housing element law mandating a lot of new requirements. It’s death by 1,000 cuts,” he said. Although the league opposed AB 2511, Higgins conceded that bill language regarding permit streamlining is helpful because it actually defines an affordable housing project. Housing advocates favored AB 2511, although their support tempered over the months while the author, Assemblyman Dave Jones (D-Sacramento), reduced the scope of what started out as a very broad bill. Another bill that evolved greatly during the session was SB 1627 (Kehoe), regarding wireless telecommunications antennas. The bill started out as an industry-backed vehicle to eliminate virtually all local regulation of antennas. By the time lawmakers passed it, SB 1627 provided useful guidelines for regulation and for the application of CEQA, said Jonathan Kramer, a consultant to cities on antenna issues. “The original bill was just awful in terms of what would have been its impact on local governments and their ability to plan,” Kramer said. As passed, though, the bill requires carriers to be up front about their intentions for wireless facilities; otherwise, they have to start the environmental review process anew. “This will actually bring some clarity and some new options to cities and to carriers as to long-term site planning,” Kramer said. A bill that received a great deal of worldwide attention may ultimately be the most important land use bill of the year, according to Patton, of the Planning and Conservation League. The bill is AB 32 (Nunez) and it calls for California to reduce greenhouse gas emissions. Its approval by Gov. Schwarzenegger marked a sharp split within the Republican Party. The bill does not address land use directly, but curbing auto-dependent, low-density sprawl is an obvious way to limit emissions, Patton said. “This pattern of development is the antithesis of what we need to reduce global warming emissions,” Patton said. “We think AB 32 will ultimately be a driver of better land use.” Contacts: Tim Coyle, California Building Industry Association, (916) 443-7933. Assemblywoman Lois Wolk, (916) 319-2008. Gary Patton, Planning and Conservation League, (916) 444-8726. Bill Higgins, League of California Cities, (916) 658-8200. Sande George, California Chapter of the American Planning Association, (916) 443-5301 John Kramer, Kramer Firm, Inc., (310) 473-9900.

A plan that would overhaul the San Diego Bay waterfront in Chula Vista with a convention center, large hotels, as many as 2,000 housing units in towers up to 17 stories tall, and extensive parkland may be headed toward final approval after more than three years of work. The Chula Vista Bayfront master plan prepared by the Port of San Diego — which controls most of the land in the area — and the City of Chula Vista would remake what has been a mostly industrial waterfront with rather limited public access. “The whole goal of this is to get people down there,” summed up Laurie Madigan, assistant city manager for special projects. “It’s going to be a world-class waterfront,” said Richard Campbell, of Pacific Companies, which plans to develop the housing component. “I think everybody wants it.” Although the plan covers 550 acres of land, coastline and wetlands, two tightly concentrated projects are dominating the discussion. One is Gaylord Entertainment’s proposal for a 400,000-square-foot convention center, up to 2,000 hotel rooms, and ancillary restaurant and retail development on about 33 acres. The other involves a swap between the port district and developer Pacifica in which Pacifica would trade all or part of 120 acres of land next to a wildlife refuge for about 35 acres of brownfields owned by the port. Pacifica would then develop up to 2,000 housing units in the form of townhouses and mid- to high-rise condominiums. Pacifica also plans a 250-room hotel and up to 300,000 square feet of office space. Elsewhere in the master plan area would lie approximately 230 acres of parks and open space, a promenade, an improved harbor, and additional hotel, office and restaurant development. Although the city and port district began the planning process in 2003, they still have a long ways to go. The draft environmental impact report for the plan came out at the end of September, kicking off what could be a lengthy adoption process. The city and port district must work out financial agreements with Gaylord and Pacifica. The State Lands Commission must approve the swap between Pacifica and the port district. The Coastal Commission must bless the master plan, which would then allow the port district and city to issue actual development permits. And industrial brownfields, which have not been fully evaluated yet, must be cleaned up. Indeed, much of the site lies in a city redevelopment project area with an industrial past. A former 80-acre BF Goodrich Aerostructures Group campus that the port district now owns and the aging South Bay Power Plant are predominant. All of that will go away to make room for new development. Six years ago, Pacifica began planning to develop its land with up to 3,400 housing units, hotels, offices and retail space. The project met strong opposition from environmentalists because of the site’s sensitive location next to Sweetwater Marsh National Wildlife Refuge and Chula Vista Nature Center. As Pacifica began revising its project with fewer units, the port district started a master planning effort for its 420 acres. At environmentalists’ urging, the two planning processes were combined. However, the port’s land is state tidelands, which means it is limited to water-related uses such as shipping and energy production, tourism, navigation, environmental protection and recreation — but not housing. So city and port planners, with the assistance of a 30-member citizens advisory committee and the design firms Carrier Johnson of San Diego and Cooper, Robertson & Partners of New York, began work on a site design that ignored ownership. The idea was to choose the best design and work out ownership details later. They ended up designating three districts: The largely undeveloped Sweetwater District next to the wildlife refuge, a centralized Harbor District that would be heavy on visitor-serving uses, and the Otay District to the south, where housing would replace the power plant and other industrial uses. “Just as we were coming to the final process, we had a visit from Gaylord,” Madigan recalled of the first meeting with the developer in 2005. Gaylord Entertainment owns the Grand Ole Opry in Nashville and hotel/convention centers in the suburbs of Dallas and Orlando, and Gaylord is building a waterfront convention facility in Price George’s County, Maryland. In searching for a West Coast location, Gaylord looked at an eastern Chula Vista location in the massive Otay Ranch development. However, Madigan steered Gaylord to a 33-acre “event center” site proposed for the bay front’s Harbor District. Gaylord liked the waterfront idea but did not like the site, so the city and port district reworked the Harbor District plan to provide the company with an acceptable location closer to the bay. Two other developers — JMI Realty and Manchester Financial Group — also submitted convention center and hotel proposals, but they were smaller than Gaylord’s plan, Madigan said. In July, the city and port district signed a letter of intent with Gaylord under which the city and port district would provide up to $308 million for the project by committing revenues from hotel bed taxes, redevelopment tax increment and port leases. That amount is based on the need for $178 worth of infrastructure, plus $130 million needed to assist convention center construction, Madigan said. “The theory is that convention centers don’t make money, but they serve as a catalyst for redevelopment and for all of the other revenues we will receive,” Madigan explained. Randa Coniglio, area real estate manager for the port district, called the Gaylord project “the anchor for this plan. It provides the revenues for the public improvements that are needed.” Under the letter of intent, the city, port district and Gaylord have until May 2007 to reach a deal. Negotiations are ongoing. At the same time, the port and Pacifica are negotiating their land swap. Campbell said the company envisions about 1,700 units of condominiums and townhouses, as well as offices, and a hotel and retail space that would serve the convention center, which is something Gaylord wants. Campbell called the proposed park spaces “gorgeous” and said that the residential site offers great views. “Gaylord is the trigger that makes the entire project possible,” Campbell said. “I cannot think of anything negative that the Gaylord project does to our project. We feel we fit together very well.” Environmentalists have participated throughout the master plan process and, at this point, are not opposing the project. What sets the area apart is Chula Vista’s intact sensitive coastal habitat, including a large saltwater marsh, said Laura Hunter, a spokesperson for the Environmental Health Coalition and member of the master plan advisory committee. Past development proposals have not accounted for the natural resources in the way the master planning effort has. Still, Hunter is not ready to endorse the project until the port district and city decide on mitigation measures. She’s also concerned about Gaylord’s chosen development site. “We thought we had a plan. It got significantly changed,” Hunter said. “We don’t know how that is going to play out. We still have a ways to go.” Project proponents say development could start in 2008, but large coastal developments nearly always get delayed in permitting processes and litigation. “It’s the largest planning effort we’ve ever undertaken,” added the port district’s Coniglio. Contacts: Laurie Madigan, City of Chula Vista, (619) 691-5031. Randa Coniglio, Port of San Diego, (619) 686-7217. Richard Campbell, Pacifica Companies, (619) 296-9000. Bayfront master plan website: http://www.portofsandiego.org/projects/cvbmp/

The habitat conservation plan for the rapidly growing Natomas Basin in Sacramento and southern Sutter counties has been upheld by a state appellate court. The Third District Court of Appeal found that environmentalists had failed “to discredit the overwhelming evidence in support” of the habitat conservation plan (HCP) for the 53,000-acre basin. In its decision, the Third District repeatedly noted that a federal district court judge who had rejected an earlier version of the HCP has since upheld federal permits issued as part of the revised plan. The environmentalists who challenged the revised plan “have failed to demonstrate how the federal court’s analysis is faulty in the same way they fail to demonstrate the deficiencies in the volumes of evidence in support of the Department findings,” Justice Vance Raye wrote for the Third District. Located north of downtown Sacramento, the Natomas Basin provides the City of Sacramento’s major growth area (see , October 2005, September 1994, December 1992, June 1991). The basin also includes the Sacramento airport and portions of Sutter County where major growth has been proposed numerous times (see , December 2004, December 2002, November 1997, June 1995, July 1993, January 1993). However, the basin’s rice farms and open space are home to two endangered species, the Swainson’s hawk and the giant garter snake. In 1997, Sacramento adopted an HCP that permitted development to proceed in exchange for the developer-funded purchase of habitat elsewhere in the basin. In 2000, U.S. District Court Judge David Levi threw out the plan, primarily because not all parties required to implement the document had agreed to participate (see , June 2001). In 2003, a revised plan that included Sutter County was adopted. The policies in the revised plan, though, were essentially the same as in the 1997 original. The Natomas Basin Conservancy would use development fees to acquire 8,750 acres, equal to one-half acre for every acre of planned development. The conservancy would then manage the property specifically for the benefit of the endangered hawk and snake, and about 20 other species. Led by the Environmental Council of Sacramento (ECOS), environmentalists sued in state and federal court over the revised plan but lost at the trial court level in both venues. In its appeal of Sacramento County Superior Court Judge Gail Ohanesian’s decision, ECOS argued that the HCP was inadequate under both the California Environmental Quality Act and the California Endangered Species Act (CESA). In its opinion, the Third District boiled down environmentalists’ arguments to three assertions: The agencies failed to consider the impacts of a “joint vision memorandum of understanding” between the City of Sacramento and Sacramento County, as well as other potential development projects; mitigation measures are impermissibly unfunded, voluntary, unenforceable and infeasible; and the 0.5-to-1 ratio for land mitigation is inadequate. The court rejected all three assertions. In the months prior to revised HCP approval, the city and county adopted the memorandum of understanding (MOU) as a “roadmap” for future land use decisions. The MOU envisions development in Natomas Basin beyond the 17,500-acres contemplated by the HCP, but the agreement does not involve specific development proposals. Environmentalists argued that the MOU and general plan revisions that reflect the MOU had to be evaluated in the HCP’s environmental impact report. But the Third District said it was too early. “We agree with the trial court and the federal district court that an environmental analysis now of the unspecified and uncertain development that might be approved in the future under the joint vision MOU would be speculative, wasteful and of little value to the consumers of the EIR,” Justice Raye wrote. “Far too little is known about the scope, the location or the types of projects that might be proposed in the future to assist decision makers in evaluating any potential environmental tradeoffs.” Likewise, the court ruled, CESA does not require “wasteful speculation on potential projects yet to be conceived and described.” The court then turned to the mitigation measures. Environmentalists charged that the HCP assumes that large amounts of farmland will remain in agriculture, and that the maze of irrigation and drainage channels on which the snakes rely will remain in place even though the agencies that operate the channels are not parties to the HCP. But the Third District agreed with the federal court findings that the channels must remain open to drain farmland, that closure or filling of canals would require further federal review, that the HCP ensures water channels will remain connected, and that the Natomas Basin Conservancy will be able to influence decisions because the conservancy is a local water company shareholder. In addition, the HCP specifically states that it does not rely on the continuation of agriculture as a mitigation measure, the court noted. Regarding, the mitigation ratio, the court accepted the city and Sutter County’s conclusion that a one-for-one ratio was neither feasible nor necessary. The court also pointed out that the plan mitigates “in a variety of ways beyond the purchase of a half acre for every acre developed.” The plan requires the conservancy to manage habitat, and mandates pre-construction surveys to locate individual animals, avoidance of development within a mile of a hawk zone, the preservation and planting of nesting trees, and other measures. “Cognizant of their heavy burden to mitigate under both statutes, the city and Sutter fashioned an enormously comprehensive and integrated mitigation plan. Plaintiffs parse but one component from the integrated mitigation program, ignoring the broader context, the broader findings, and the broader evidence relied on by the agencies,” the court ruled. The court also rejected arguments regarding the adequacy of evidence to support the Department of Fish and Game’s CESA findings. “We will not arbitrate between scientists,” Raye wrote. The Case: , No. C049527, 2006 DJDAR 12175. Filed August 9, 2006. Ordered published September 11, 2006. The Lawyers: For ECOS: James Pachl, (916) 446-3978. For Sacramento: Clark Morrison, Morrison & Foerster, (916) 448-3200.

Lake Berryessa, a 30-square-mile federal reservoir in the hills northeast of the more famous Napa Valley, may be California’s most secret lake. But a new land use and management plan could change that by promoting a more high-end tourist activity than the lake has seen in the past. In fact, the very nature of the Lake Berryessa experience appears to be changing. The Lake Berryessa Visitor Services Plan adopted earlier this year by the Bureau of Reclamation calls for removal of about 1,100 mobile homes and recreational vehicles that are parked in seven “resorts” on federal land along the lakeshore, and erasure of many improvements built by the resort owners. In place of the trailer parks, the Bureau of Reclamation hopes to have private concessionaires develop facilities for short-term visitors, such as rental cabins, camping sites and possibly motels and other tourist facilities. The bureau’s record of decision “allows for the hospitality industry to suggest to us, based on their experience, what would work best in the concession areas,” said Pete Lucero, chief of recreation for the bureau’s Central California area office. The goal of the plan is to boost short-term visitor use of the 49-year-old lake, which now gets about 1.2 million visitors annually. “We expect to see a greater degree of recreational opportunities. We’re looking at a wholesale improvement for the general public,” said Lucero. “I believe that as more of the Bay Area population finds Berryessa to be a destination spot for more traditional activities, it (visitor use) will increase. And if it’s not an increase, it will be a more varied visitor population, rather than the same people returning every weekend.” However, the weekend regulars who own mobile homes, prefab houses, travel trailers and recreational vehicles in the resorts fought the new strategy throughout the administrative process. Their residences sit on federal property that is leased to contractors who have agreements with the federal government. Those seven contracts expire from 2007 through 2009. Under the approved visitor services plan, the owners must remove their residences from federal land at their own expense when the contracts expire, and the contractors must remove facilities and improvements that do not go along with new contracts. According to Hank Howard, head of the group Berryessa For All, about 200 people who live in the resorts full-time will lose their homes, and hundreds of other families who have been coming to the lake for decades are being kicked out. The group, which Howard says has about 750 members, is considering filing a lawsuit over the record of decision. “We think the document is highly flawed,” said Howard, who owns a manufactured home at the lake. The Bureau of Reclamation decision is arbitrary and capricious, and the agency is illegally taking private property, Howard charged. “One hundred percent of everything that exists in the seven resorts was permitted, inspected, reviewed and master planned by Napa County and the Bureau of Land Management,” Howard said. The vast majority of mobile homes at Berryessa are too old to be moved into other parks, so the bureau’s plan makes them less than worthless. Removal of the old units will cost upwards of $20,000 to $25,000 apiece, said Denise Trevor, a mobile home owner and Berryessa For All organizer. “We can’t just move these places,” she said. After six years of planning, environmental review and sometimes tense public meetings, federal officials have little patience for these arguments. A 2002 evaluation prepared for the bureau by Kleinfelder, Inc., found that infrastructure in the resorts, including water and wastewater systems, is in poor shape and needs extensive upgrades or replacement. Napa County officials agreed with the assessment. In a 2005 letter to the bureau, County Executive Officer Nancy Watt said the county “has recorded a history of assorted non-compliance issues, notice of violations, capacity failures, insufficient maintenance, missing or late inspection reporting and illegal discharges associated with a number of water and wastewater treatment facilities serving the concession areas at Lake Berryessa.” Many of the residences are not in any better shape than the infrastructure. Even Howard conceded there are as many as 400 “trailers that need to go.” Still, he said, it is unfair to lump together everyone as “exclusive long-term users” that are blighting the lake. Most of the trailers and mobile homes were moved onto the lakeshore during the 1960s and 1970s, and their precise administrative history is murky, although it may not matter much because there is no question they are located on federal land for which leases are about to expire. Napa County Conservation, Development and Planning Director Hilary Gitelman said the county has done no planning for the area because “it’s federal lands in federal jurisdiction.” “The main thing that the county has been concerned about all along is that the county spends a lot of resources out at the lake,” Gitelman said. The county estimates it spends $700,000 a year providing emergency services, health and safety services, and public works to the area. Supervisors in both Napa and Solano counties ended up endorsing the visitor services plan but there was some hesitation because of the housing unit removal. A number of trail advocacy, environmental and mountain bike groups also backed the project, saying it would encourage more use of the lake and surrounding federal lands while also increasing environmental sensitivity. And in her letter to the bureau, Napa County’s Watt wrote, “With Reclamation’s help, Lake Berryessa will become an asset for the citizens for Napa County for generations to come, rather than the liability that is has been for too long.” But that sounds like a harsh assessment to people like Trevor and Howard, who have been coming to their second homes on the lake for many years. “They paint the picture that there are trailers around the whole lake, which is ridiculous,” Howard said. The residences cover only about 4% of the shoreline, he said. “The problem with this whole thing is that at no time has any short-term user ever been turned away from the facility.” The bureau’s Lucero said officials are currently working on a prospectus for potential concessionaires. There is no strict timeline for the project because planned improvements are dependent on federal funding and the willingness of private investors, he said. Contacts: Pete Lucero, Bureau of Reclamation, (707) 966-2111. Hilary Gitelman, Napa County Department of Conservation, Development and Planning, (707) 253-4805. Hank Howard, Berryessa For All, (707) 645-8367. Visitor Services Plan website: www.usbr.gov/mp/berryessa