A garbage company does not have legal standing to file a lawsuit regarding the environmental review of a competing company's landfill plans, the Third District Court of Appeal has ruled. The three-judge panel unanimously voted to dismiss a suit filed by Waste Management of Alameda County. Waste Management argued that Alameda County should have required environmental impact report before allowing Browning-Ferris Industries to accept "designated wastes" because the county required Waste Management to prepare an EIR for a similar project. But the appellate court concluded Waste Management was only pursuing its economic interests, which was not adequate to maintain a lawsuit under the California Environmental Quality Act. The dispute arose from BFI's proposal to accept "designated wastes" within the meaning of State Water Resources Control Board regulations (essentially, all nonhazardous solid wastes) at BFI's Vasco Road Sanitary Landfill in the hills east of Livermore. The county determined the project was exempt from CEQA review because it involved only a minor alteration to an existing use. Both the San Francisco Regional Water Quality Control Board and the state Integrated Waste Management Board gave permission for BFI to accept designated waste. However, when Waste Management had earlier sought permission to accept designated wastes at its Altamont landfill four miles east of BFI's facility, the county had required an EIR. Waste Management filed a lawsuit. Sacramento County Superior Court Judge Cecily Bond ordered an environmental review of BFI's plans and ordered BFI to stop accepting designated wastes. The appellate court overturned Bond's ruling A party can bring a lawsuit if it has a beneficial — i.e. direct — interest in a matter. Waste Management did not such an interest, court said. "An interest, including a financial or commercial interest, which is not within the zone of interests to be protected or regulated by the asserted legal duty can only be an indirect interest from the standpoint of the law. It has been clear throughout this litigation that Waste Management's interest is commercial and competitive," Presiding Judge Arthur Scotland wrote. "CEQA is not a fair competition statutory scheme." Simple logistics also were not adequate to establish Waste Management's beneficial interest, the court ruled. There was insufficient evidence to argue that BFI's acceptance of designated waste would have environmental consequences for Waste Management's landfill, which is on the other side of the mountain range, the court said. Waste Management also argued that it could bring a "citizen's action" that was intended to enforce a public duty. But the court said that a corporation is not a "citizen" and that Waste Management "has shown no demonstrable interest or commitment to the environmental concerns which are the essence of CEQA …" Because it ruled that Waste Management lacked standing to bring the lawsuit, the court did not rule on the merits of the case. The county had argued that the two landfill projects were dissimilar because Waste Management's plans involved expanded acreage and other operating changes. The Case: Waste Management of Alameda County v. County of Alameda, No. C024917, 00 C.D.O.S. 2972, filed April 17, 2000. The Lawyers: For Waste Management: Michael Zischke, Landels, Ripley & Diamond, (415) 512-8700. For Alameda County: Lorenzo Chambliss, Senior Deputy County Counsel, (510) 272-6703 For Integrated Waste Management Board: Matthew Campbell, deputy attorney general, (916) 327-2477. For Browning-Ferris: Scott Gordon, Bruen & Gordon, (925) 295-3131

When two companies contribute to groundwater pollution, one company cannot avoid cleanup costs by arguing that the other company would have spent money on the cleanup anyway, the U.S. Ninth Circuit Court of Appeals has ruled. The decision came in an Oregon case interpreting the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), better known as the Superfund law. To let one company avoid cleanup costs "would encourage parties to avoid investigating and cleaning up contamination to which others as well as themselves contributed," the court ruled. "A party that had discharged into a mixed plume could wait for another discharger to incur the costs of investigation, and have a fair chance of leaving the other polluter stuck with the entire bill." The court also ruled it is acceptable to apportion cleanup costs — when two companies are responsible — based on the amount of each parties' contamination. The case stemmed from two industrial properties in Portland, Oregon. Boeing Company had a 151-acre airplane part factory, and Cascade Corp. made lift truck attachments on a 6-acre parcel about 200 feet away. In the mid-1980s, both companies became aware of groundwater pollution from chlorine-based solvents that both companies used and disposed of on their sites, and the companies worked together on a state-supervised cleanup. Of three aquifers below the sites, one had been polluted by both companies. Boeing sued Cascade, seeking a contribution from Cascade and a declaratory judgement allocating future expenses. U.S. District Court Judge Malcolm Marsh ruled for Boeing. Because even a Cascade consultant testified that the company created 70% of the plume of contamination, Judge Marsh ordered Cascade to pay 70% of cleanup costs. On appeal, Cascade argued that it should not be liable because Boeing would have incurred the cleanup costs even if Cascade had not contributed pollution to the aquifer. Cascade argued that it could be held liable only if its release of contaminants forced the cleanup. But a unanimous three-judge panel of the Ninth Circuit rejected Cascade's argument. "One of he goals of CERCLA was to ‘affix the ultimate cost of cleaning up these disposal sites to the parties responsible for the contamination.' To leave one party shouldering the entire cost of investigation and remediation while another rides for free frustrates this goal, rather than ensuring that those who caused the contamination pay their fair share of the costs associated with clean-up," Judge Andrew Kleinfeld wrote. As for allocating the costs, the court made clear that the trial judge had great discretion. In a Fifth Circuit opinion, In re Bell Petroleum Servs., Inc., 3 F3d 889 (1993), the court held that "volume may be a reasonable means of apportioning liability." The Ninth Circuit called Judge Marsh's 70:30 decision "among the reasonable conclusions supported by the evidence." The court also ruled that a declaratory judgement, which in this case apportions responsibility for past and future cleanup costs, is appropriate. The Superfund law does not address declaratory judgements in cases where two parties are responsible for the pollution. But, wrote Kleinfeld, "CERCLA was intended to encourage quick response and to place the costs on those responsible. Declaratory relief serves these purposes because all parties, like those in this case, will know their share of costs before they are incurred. The more liability can be limited and quantified, the more practical it is for a party to budget and borrow to finance it." The Case: Boeing Company v. Cascade Corporation, Nos. 96-35246, 96-35304, 00 C.D.O.S. 2321, filed Marsh 24, 2000. The Lawyers: For Boeing: David Bledsoe and Mark Schneider, Perkins, Coe, (503) 727-2000. For Cascade: George McKallip, (503) 228-6191.

The Governor's Office of Planning and Research is insisting that cities and counties file annual general plan progress and implementation reports, but many local planners are questioning the mandate. Some planning directors do not want such reports to become political fodder because they have the potential to reflect badly on a local jurisdiction. Others say preparing an annual report is a bureaucratic exercise that takes time away from more worthwhile planning. The California County Planning Directors Association has appointed a committee to meet with OPR to talk about making the process more meaningful. Last October, OPR sent letters to every city and county requesting that they file an annual report "on the status of the General Plan and progress in its implementation." Government Code §65400(b) requires such reports be prepared for city councils and boards of supervisors and sent to OPR every year by July 1, according to the letter, which was signed by OPR Director Loretta Lynch. "This is important to OPR because we are supposed to be the statewide planning agency," OPR Senior Planner Terry Roberts explained recently. "We see a lot of trends in the state and we need to see how the local general plans are dealing with these trends." Only a handful of jurisdictions were filing the annual reports with OPR, she said. Planners from about 90% of California cities and counties responded to the October letter, but not necessarily in the fashion OPR wanted. Planners either said they were unaware of the mandate, did not have the time or resources to prepare a report, or requested a standard form that OPR is supposed to make available. In the end, only about 200 of 445 jurisdictions (charter cities are exempt) filed progress reports. So OPR undertook a telephone survey early this year to learn more about why local planners were not preparing the annual reports, and inquired about the status of general plans themselves. Letters, which some people viewed as threatening, followed the survey. "We were just trying to set the record straight," Roberts said. The letters, dated February 29, were attached to a seven-page memorandum explaining the purpose behind annual reports, how the state uses the reports, and guidance for preparing reports. The letters followed a rather tense meeting between OPR staff members — but not the OPR director — and local planning directors, who complained about a lack of technical assistance or funding from the state. Tim Beals, who heads the county planning directors group, said the process should not be only a paperwork exercise to satisfy a state mandate, and he worried the reports eventually might be used against county planners. Alex Hinds, Marin County Community Development Agency director, said the planning directors have had only preliminary discussions with OPR. "I think it's a good exercise to do a general plan status report," he said. Marin County has prepared a comprehensive general plan status report as it gets ready to begin an update of its six-year-old general plan, he said. A meaningful report evaluates the general plan and show how the plan is really used, Hinds said. However, the annual nature of the requirement is a problem, and some jurisdictions just go through the motions, Hinds said. He and others said local planners get too busy with other responsibilities to worry about filing a report with the state. "Why would they care and what difference would it make for us?" said Denis Cook, Yuba City community development director. "We'd rather focus our efforts on what needs to be done for the community." The City of Escondido was one of the jurisdictions that has prepared annual reports for the City Council and Planning Commission but has not forwarded the reports to OPR, said Jonathan Brindle, assistant planning director. The report is a good management tool and it lets decision-makers follow what is happening. However, the city uses other tools to track land-use and projects. "It's a burden to prepare a report every year," Brindle conceded. In the City of Chico, which adopted a new general plan in 1994, annual progress reports have become something that the community expects, said Senior Planner Tom Hayes. "We found them pretty easy to do, particularly after the first one. We got a method set up. We use GIS. And it just becomes almost like filling in the blanks," Hayes said. The city's general plan annual reports include a matrix with all 350 implementation measures. The city did a five-year review in 1999 that includes the matrix, an extensive discussion of current planning issues in the city, and an update on implementation projects. "Although this is a little time consuming, it provides a good tool for developing and monitoring our work program, particularly as we develop the annual planning budget," Hayes said. The reports are particularly helpful for tracking land capacity and availability, he added. Also this year, OPR sent letters to 77 cities and eight counties noting that they had not comprehensively updated their general plans it at least 10 years and had indicated they had no intention of updating plans in the immediate future. Why not, OPR asked. "We're not the general plan policemen here, but we have a right to ask these questions and get an honest answer," Roberts said. "It wasn't as if all of a sudden this has become a priority for OPR." Yuba City's Cook suggested OPR might want to back off a little. Yuba City has not completed a general plan overhaul since 1989 but will probably commence an update in a year or two. He said the 11-year-old general plan continues to serve the city well, especially as the city has kept related implementation measures, ordinances and fees up to date. ----- Exactly who is in charge of OPR these days appears to be getting clearer. Loretta Lynch, whom Gov. Davis named as OPR director in March 1999, was appointed to the Public Utilities Commission in December. At about the same time, Davis named Steven Nissen, a special assistant to the governor for innovation in government, as "acting staff director" at OPR. But Lynch, a lawyer with little land-use experience, did not resign from OPR after her PUC appointment and correspondence continued to go out under her signature. However, on April 18, Davis named Nissen as the acting director of OPR, and Nissen began moving into the executive's office. Nissen was executive director of the California State Bar from 1997 to 1999, and previously was executive director of Public Counsel, a large pro bono law office. Contacts: Terry Roberts, Governor's Office of Planning and Research, (916) 322-2318. Tim Beals, Sierra County Planning Department, (530) 289-3251. Alex Hinds, Marin County Community Development Agency, (415) 499-6269. Tom Hayes, Chico Community Development Department, (530) 895-4853. Jonathan Brindle, Escondido Planning Division, (760) 839-4543. Denis Cook, Yuba City Community Development Department, (530) 822-4700.

Los Angeles is the second-biggest city in the United States, but nobody who lives there has ever seemed especially proud of this fact. For many community activists the city's size has always seemed like an annoyance. L.A.'s neighborhood groups — especially homeowner associations in the San Fernando Valley — have complained for decades that the downtown City Hall bureaucracy is too remote and unresponsive to meet the needs of the city's varied neighborhoods, especially when it comes to planning issues. While threatening secession, the homeowner associations alternatively have agitated for a shifting of planning power out of City Hall. In particular, these groups have repeatedly called for a decentralized system of elected planning commissions with real decision-making power. Under the provisions of the new city charter — which go into effect July 1 — planning power is moving downward, but not as neighborhood associations wanted. The new charter does create decentralized planning commissions with real power, but they're not elected. The new charter also creates a system of Neighborhood Councils, but the existing homeowner associations won't automatically fill those slots. And even as power is decentralized, it's also being centralized, because the mayor will have ultimate control over both of these community-level systems. Los Angeles's 75-year-old charter created a weak mayor and 15 strong city council members with large districts (nearly 250,000 people in each) who can effectively serve as "mayors" of their districts. The impetus to revise the charter came from the homeowner associations and Mayor Richard Riordan, a take-charge business executive frustrated by his office's lack of authority. The charter revision — shaped jointly by two charter reform commissions and approved by voters last year —sought to create a subtle balance between centralizing power in the mayor's office and decentralizing it in the neighborhoods. On the one hand, a stronger mayor was clearly needed, but L.A.'s traditional aversion to machine politics meant that the new charter would be doomed if the mayor got too strong. On the other hand, wholesale decentralization might please neighborhood activists, but it could diffuse power too much to get anything done. "The idea," says political scientist Raphael Sonenshein, who was executive director of one charter commission, "was to increase public input and still have a government." The downshifting of power takes two forms. It's a variation of sorts on neighborhoods activists' longstanding desire to have more direct control over city decisions generally and land-use matters in particular. First, garden-variety land-use decisions — traditionally handled by the city Planning Commission, with an easy appeal to the City Council — will be transferred to seven newly formed "area" planning commissions representing different parts of the city. It's important to note, however, that the "APCs," as they will be known, do not really represent a wholesale decentralization of planning authority. The seven areas are quite large, averaging 66 square miles apiece. The commissions do not have any policy-making power; instead, they simply assume the current Board of Zoning Appeals' role. And to the disappointment of the homeowner associations, these commissions won't be elected; they'll be appointed by the mayor with council confirmation. Indeed, in certain ways the APCs centralize mayoral authority at the City Council's expense. The new system eliminates the council from routine decisions, such as conditional-use permits. The APC boundaries are not co-terminus with council district line. In most cases, APCs will cover portions of several council districts. That alone will dilute a counilmember's ability to dictate these decisions. Beyond that, most APC decisions will not be appealable to the City Council. Rather, Area Planning Commission decisions will be appealable only to the city Planning Commission — a body also under the mayor's control. The goal is to de-politicize routine decisions, which in the past have gotten caught up in the City Council's parochial politics. In addition to creating APCs, the new charter increases neighborhood-level power in one other way — by requiring the city to designate and empower dozens of Neighborhood Councils. Neighborhood Councils will not be decision-making bodies. Rather, they'll serve as advisory panels and lobbying groups on behalf of individual neighborhoods. Exactly how many Neighborhood Councils will exist, and what their roles will be, remains undecided. But these questions, too, are the mayor's to answer. The charter creates a Department of Neighborhood Empowerment and a Board of Neighborhood Commissioners to set up and operate this Neighborhood Council system and places both the department and the board under the mayor's control. Much more than the Area Planning Commissions, the Neighborhood Council system holds the potential to be the decentralized source of power that the homeowner associations seek. Yet the L.A. system is likely to be different from the most prominent neighborhood council system in the nation — New York City's system of community planning boards. Los Angeles considered a similar community board proposal during the late '80s but instead created citizen advisory committees appointed by city councilmembers, thus strengthening City Council power rather than diluting it. New York has 59 community planning boards — one for each community plan area in the city. Each board has dozens of member, all appointed by the Borough president with considerable input from city councilmembers. As the "first stop" for developers, the community boards must conduct hearings on all land-use applications and forward a recommendation to the city Planning Commission. In New York, the community board process typically slows the approval process at the beginning because the board might haggle with a developer for several months at the hearing stage. Also, many projects must be reviewed by two or three boards. But community board support can benefit a developer at the city Planning Commission. L.A.'s Neighborhood Councils may or may not have similar influence, depending on how the Board of Neighborhood Commissioners sets up the system. Under the charter, the City Council may delegate public hearing authority to these councils but is not required to. The councils are supposed to deal with all issues, not just planning. And they are supposed to get city funding for operations. Beyond that, the number, composition, selection, and operation of the Neighborhood Councils is up to the Board of Neighborhood Commissioners. Although there are 35 community plan areas in L.A. (compared to 59 in New York), the city may designate 100 or more Neighborhood Councils. And, much to the disappointment of long-standing homeowner associations, the charter makes it difficult for existing groups to simply appropriate Neighborhood Council status because it requires each council to represent all stakeholders. Many unknowns about how charter reform will affect land-use planning remain. The APCs are supposed to stick to quasi-judicial actions, but surely they'll be chomping at the bit to deal with policy issues too. The Neighborhood Councils are supposed to be broad-based and deal with a range of issues, but some homeowner associations will surely push them into the land-use planning arena. More than ever before, the City Council is supposed to butt out of routine planning decisions, but they're not likely to give up power readily. About the only thing we know for sure is that, somehow or other, planning power will be decentralized in Los Angeles under the new charter. And how this works out will probably serve as the litmus test on the question of whether L.A.'s residents will be better served by a single, decentralized system controlled by the mayor, or a wholesale breakup of the biggest city in the West.

George B. Brewster has served as executive director of the California Center for Land Recycling since its founding in 1996. The nonprofit organization advocates sustainable community development and provides programs to facilitate redevelopment of brownfields, which are abandoned or underutilized sites hampered by real or perceived contamination. Brewster has an extensive background in real estate development, asset management and finance, and he serves on the Urban Land Institute's Infill Development Forum and Environmental Council. The ULI published his book, The Ecology of Development: Integrating the Built and Natural Environments, in 1996. CP&DR "Smart growth" has gained attention among mainstream audiences in recent times. Has there been a related rise in interest in brownfield redevelopment? Brewster The short answer is yes. We talk about land recycling, rather than brownfields. We look at it as the key to smart growth. Basically, land recycling is abut redirecting growth from the fringe to the core of urban areas, and that means, in turn, re-looking at sites that have been bypassed or previously used. CP&DR Have skyrocketing real estate values, especially in the Bay Area, focussed attention on land re-use? Brewster Certainly. It's double-edged sword. The good news is that for well-located, close-in parcels that have been bypassed in the past because of perceived or real environmental impairment, the cost of cleanup becomes less and less of a factor in the development decision. The development community is redeveloping brownfield sites at an increasing rate. The other side is the public sector and nonprofit entities who, with some notable exceptions, like Los Angeles and Long Beach, San Jose, Emeryville, look at brownfields as something to be avoided rather than as an opportunity. CP&DR In a 1998 CCLR policy paper you wrote, "Public policy reforms must provide the foundation for ongoing, large-scale land recycling." Is that happening in California? Brewster Let's talk about what public policy reform means. You have got to deal with both public safety and environmental health, and with economic issues. We looked at what other states have done … and we found that successful programs had three things in common: one was liability protection, the second was regulatory simplification and the third was financing. On the liability front, what you're trying to do is deal with the unintended consequences of Superfund. Superfund was designed to punish polluters and to discourage future pollution. Anyone who gets in the chain of title on the property is liable for the contamination of the property, whether or not they caused it. What the state programs have in common is to protect the good actors. … The best state programs extend the protection to anyone, as long as they are voluntarily willing to clean it up. Regulatory clarification has to do with setting clear, minimum standards for cleanup, which protect public health and safety, based on the type of use and the type of contaminant. For example, if you are going to redevelop a site for industrial use with lots of asphalt and warehouse buildings, the level of cleanup might be less than if you were going to redevelop the site as a housing project or park. The idea is to deal with the specific levels of contamination for each known toxic substance and tailor the cleanup to the future use. Without the standards, you have what we have now in California, which is a negotiated cleanup on every site, rather than knowing that all sites are getting cleaned to a safe level. The financing issue is front-end financing. The two most critical things for land recycling when contamination is involved are finding out what's there and finding out what it will cost to remediate it to an acceptable level. As a developer, whether you're private, public or nonprofit, you have front-end development costs that are out of pocket. These are all high-risk costs. When you add environmental impairment, that increases the risk. … In the inner-city sites, an injection of capital can make the deal go forward where it would not otherwise go forward. CP&DR What are the first steps a local agency should take when redeveloping a brownfield site? Brewster There are some excellent educational programs available. One of them is the EPA's Targeted Site Assessment program. Another is CCLR's one-day workshops aimed at local government staff and project managers. There's a tremendous amount of resources available through EPA. There's information, there's a grant program. There's also an environmental financial handbook on the EFAB section of the EPA website. The handbook is a compendium of all the financing tools available for brownfield redevelopment and other environmental projects. CP&DR How does local government maintain momentum during the long brownfield redevelopment process? Brewster The environmental part of it is not all that difficult. Site assessment can be done in a matter of weeks. Putting numbers to it is relatively easy. With the remediation itself, the current practice is to combine the remediation with development. For instance, if there's one section of the site that has soil contamination, that knowledge goes into the design process. You could make the contaminated part of the site a parking lot rather than building housing there. CP&DR So, the environmental constraints don't necessarily lengthen the project? Brewster That's correct. CP&DR What's a recent success story? Brewster It's gotten to the point that between the private sector and redevelopment agencies, the number of sites that have been remediated has become rather large. Virtually every urban site has some level of environmental impairment, and dealing with that environmental impairment is just one part of developing the site. CP&DR Fair enough. What's an example of a project that failed? Brewster It's the ones that are well-located, close-in sites in less-affluent areas that are very suitable for redevelopment but don't go forward because of the uncertainty and misperceptions around contamination. CP&DR What are the misperceptions? Brewster The fear of risk, and cost-uncertainty and liability. There are approximately 100,000 brownfield sites in the state, and most of them still are not being developed. The ones that could most benefit the community are in inner-city neighborhoods, especially in economically impacted neighborhoods of color where any investment would improve the local economic conditions. Those are the sites that are sitting undeveloped because local government and community development groups don't have the tools or the knowledge to overcome the perceptions that come with potential contamination.

Few other land uses inspire ambivalence like the highway, and rightly so. Like the twin Hindu deities, Brahman and Vishnu, the highway is both creator and destroyer, giving life to cities and then making them uninhabitable. Serving the role played by the railroad and the river in earlier times, the highway is the city's lifeline to the larger world. And just as the river and the railroad each gave the city a new kind of settlement, the highway has given rise to its own type of urbanism: the strip. No wonder, then, that the strip is the dominant pattern of development of the American West: It is the landscape defined by the highway. If the life of the city depends on the highway, however, the city is also poisoned by it. The ugly black scar on the landscape cuts the city in half and serves as unofficial line of demarcation that separates people by income or class or race. It is a difficult fissure to mend, either in social equity or urban design. That's why the Downtown Revitalization Program in Cathedral City, a small Coachella Valley town between Palm Springs and Rancho Mirage, should be of great interest to planners in small cities throughout the state. Cathedral City has found a way of taming the highway by changing the high-speed arterial into a signalized boulevard with plentiful landscaping, sidewalks and frontage roads for local traffic. The highway strategy has allowed Cathedral City to incorporate the arterial into the city's new downtown, rather than forcing the city to work around it. While other cities have found ways of slowing down the thoroughfare in the center of town, the multi-layered strategy in Cathedral City should become a reference point for other cities with similar problems. With a population of 37,000 residents, Cathedral City is a lower-middle-class bedroom community in a region where the differences between affluent and not-so-affluent are very apparent. The city was long considered a patch of bad scenery between Palm Springs and Rancho Mirage on Highway 111, the royal road of the Coachella Valley's golf resorts. Both sides of the highway were "disinvestment" zones, to borrow a phrase from the city. On the south lay a series of boarded-up or tacky buildings that have corroded the edge of a residential neighborhood. To the north are the vestiges of the old downtown, as well as strip retail. That streetscape was not good advertising for Cathedral City, which is traversed by 35,000 highway travelers daily. "It looked like a barrio," said Redevelopment Director Susan Moeller. "Buildings either were not maintained or painted bright orange. It was the worst stretch of the highway in the whole valley." Ironically, the new downtown got its start, in part, as a planning exercise about highway widening. In 1992, the city set out to solve two problems: the city needed a new city hall, which was then located in rented facilities just south of the highway. And the city needed to widen the highway to ease a downtown traffic bottleneck. Urban designer Michael Freedman of Freedman, Tung & Bottomley told a task force that the easy solution would be to build a new city hall outside downtown on land already owned by the city. But the best choice, he added, would be to build a new city hall as the centerpiece of a new downtown master plan. The task force chose the latter, and Freedman provided several alternatives for a new downtown in Cathedral City. The grandest of the alternatives is Master Plan A, which locates a large new city hall building and town square a few blocks north of Highway 111. Surrounding city hall on the east, west, and south will be "revitalized neighborhoods," while mixed-use development will be concentrated along the northern highway frontage. The design also calls for a new bridge to span the flood-control channel immediately north of downtown, connecting the new civic center with the Perez Road shopping area to the north. The city is not shy about eminent domain, and may end up condemning and clearing about 65 acres of the 100-acre downtown plan area to create the space for the city hall, town square and retail buildings. The most significant part of the downtown plan, at least in my view, is the design guidelines to turn the highway into a boulevard. After identifying certain intersections as the cause of traffic bottlenecks, the city decided to widen the four-lane road into six lanes along those intersections. Elsewhere, the highway remains four lanes throughout the downtown core, and is bordered by frontage streets both north and south. Resembling the side streets used in the street-car era, the new frontage streets allow cars to turn off the highway and park behind planted medians; angled parking is provided for commercial space north of the highway, while parallel parking is provided on the south, in front of new residential development. Sidewalks are available for pedestrians of the highway, and a bicycle path is integrated into one of the medians. In short, the highway has become a street — now known as East Palm Canyon Drive — that can support local merchants, provide access to local housing, and be used by pedestrians and bicyclists. (Caltrans allowed the new traffic signals and other changes to the highway only after surrounding cities gave their permission.) The new downtown plan has already inspired a new spate of downtown development, including a luxurious Ritz-Carlton, while three retail developers are busy in the civic center area. Surprisingly or not, Moeller reports that she "has taken a lot of hits," over the project. "A lot of people don't want anything that will slow down the 50-mile-an-hour traffic," she said. I predict (maybe I just hope) that the complaining will stop when the "greensward" landscaping is in place and Cathedral City becomes a highlight of a drive through the Coachella Valley, rather than a stretch of shabbiness in the desert. At any rate, anyone who complains about slower traffic is missing the point about Cathedral City, which represents one solution to the problem of how best to benefit from the highway, while minimizing its destructive aspects. That's worth slowing down a little bit, isn't it? Honk if you love the pedestrian-friendly highway.

A four-year-old pilot project intended to improve the quality of water flowing into the southern end of San Francisco Bay continues to move forward. Interests ranging from builders to environmentalists to regulators are participating in the Santa Clara Basin Watershed Management Initiative (WMI), and a detailed watersheds characteristics report — an important baseline document — is due out this month. Although the broad-based approach to dealing with entire watersheds is happening in an urban area, most of the creeks are fairly healthy and no single problem has reached a crisis level. Some people say these conditions improve the WMI's chances of succeeding. However, some environmentalists are questioning the effectiveness of the WMI, and participants agree that implementing major cleanups or changes in land-use strategy could become difficult. "It's got the best and the worst," said Ted Smith, Executive Director of the Silicon Valley Toxics Coalition. "The best is that everybody is involved and the worst is that everybody is involved." Two regulatory agencies — the U.S. Environmental Protection Agency and the San Francisco Regional Water Quality Control Board — initiated two pilot projects. One focuses on the Napa River, where an extensive flood-control and river restoration project is underway. The other is the Santa Clara Basin WMI, which is less focused. About 30 public agencies, business associations, and environmental and civic groups are "signatories" of the WMI. Every signatory has one voting representative, and thus far all decisions have been made by consensus. Funding has come from signatories, with the entity that stands to benefit most from a particular project providing the bulk of funding for that effort, according to Mary Ellen Dick, WMI chair and a City of San Jose administrative officer. State agencies and CalFed also provide money, The biggest accomplishment to date is getting all of the parties in one room, she said. "People are really talking to each other about what we are trying to accomplish. That has spilled over into how we coordinate projects," Dick said. Other people agreed that agencies are working more closely with one another because of the WMI. Dan Cloak, of Eisenberg Olivieri and Associates and an engineer for the Santa Clara Valley Urban Runoff Pollution Prevention Program, pointed to three significant factors regarding the WMI. First, most watershed management approaches have been undertaken in rural areas with few landowners, he said. In urban areas, regulatory agencies often cannot even agree on basic watershed characteristics. But WMI signatories have reached consensus on fundamentals pretty easily, he said. Second, the Santa Clara Basin has several examples of "smart growth," such as urban limit lines in San Jose and Milpitas, San Jose's downtown and midtown redevelopment, and The Crossroads transit-oriented development in Mountain View, he said. The watershed approach fits with these smart growth intentions. Third, many area creeks do not run through culverts or even in channels, and many still support native fish, Cloak said. Dams are rare and surface water is generally clean. These conditions provide an better base from which to work than, for example, in Los Angeles, where concrete lines so many waterways. Still, implementing plans for healthy watersheds — such as leaving room for creeks to meander and, on occasion, flood — will be difficult, Cloak said. This will require buying land, gaining easements and working with landowners to be stewards. Stanley Williams, general manager of the Santa Clara Valley Water District, noted that conflicting goals also make implementation difficult. His own agency is supposed to enhance and restore streams, at the same time it is supposed to prevent floods and control erosion. Another WMI goal, simplifying regulatory compliance, a favorite of the building industry, could potentially conflict with the goal of protecting natural resources, which is the bottom line for environmentalists. Smith, whose toxics coalition is a WMI signatory, sees "a fair amount of inertia" at the WMI. For example, the WMI established total maximum daily loads (TMDLs) for copper and nickel in the South Bay. Copper and nickel do not present the worst pollution problem, although they are high-profile contaminants. But the TMDL process has not been easy, and establishing related oversight and monitoring of San Jose's wastewater treatment plant, which discharges the metals, has proven even more difficult, he said. "It always gets down to who is going to pay for it. And no one is eager to do so," Smith said. Smith also pointed to the Guadalupe River, which runs through San Jose. The Guadalupe has one of the worst mercury contamination problems in the country because of runoff from the defunct Quicksilver Mine in the hills south of town. "Yet no one is willing to step up to the plate on that one," he said. Smith said for the WMI to be more effective, the EPA and Regional Water Quality Control Board need to apply pressure, the WMI must establish more efficient processes, and effected agencies should commit more funding. Still, the WMI continues to move forward, and the Guadalupe River is in the WMI's sites. Dick noted that while the watershed approach has been tried elsewhere in the country, in most of those cases everyone could agree on the foremost issue. In Napa, for example, the flooding threat is obvious and bring everyone together. The Santa Clara Basin, however, lacks such a well-defined problem, she noted. So there is no real model for the WMI to follow as it goes about its business, she said. A mercury TMDL for the Guadalupe River, funded primarily by the Santa Clara Valley Water District, is underway, Dick said. Also, the signatories recently agreed to a framework for assessing watersheds, and experts are now beginning to use the framework to study three watersheds — the Guadalupe River, San Francisquito Creek (which forms the boundary between Santa Clara and San Mateo counties) and Upper Penitencia Creek (on the basin's east side). Those three watersheds are representative of the basin, said Alice Ringer, WMI project coordinator. The draft assessment reports will be ready in about a year. From there, WMI members can design alternative resource management strategies, which will be evaluated for cost and effectiveness. Eventually, all of this will get compiled into a Watershed Management Plan. "That becomes something that various groups and agencies can adopt as something they are willing to undertake," Ringer said. The WMI is really the first phase of a much larger — and undefined — project, Dick said. Eventually, the WMI likely will become institutionalized in the form of a joint powers authority or a new government agency, she said. Contacts: Mary Ellen Dick, WMI chair, (408) 277-5520. Alice Ringer, WMI program manager, (408) 945-3024. Ted Smith, Silicon Valley Toxics Coalition executive director, (408) 287-6707. Dan Cloak, EOA, Inc., (408) 720-8811. WMI website: www.ci.san-jose.ca.us/esd/wmi.htm

The U.S. Supreme Court has declined to review a takings case involving a San Francisco housing law, but Associate Justice Antonin Scalia issued a scathing dissent in which he equated San Francisco's law with extortion and questioned a state appellate court's willingness to follow "takings" precedents. Ten years ago, San Francisco rejected the application of Claude and Micheline Lambert, who asked to convert 24 units of their Cornell Hotel from residential to tourist use. San Francisco's hotel conversion ordinance prevents the conversion of residential hotel rooms unless the landowner provides replacement units or pays replacement costs. The city insisted replacement would cost $600,000. The Lambert's said they would pay only $100,000. But no fee was ever imposed because the Planning Commission denied the application due to affordable housing, neighborhood character and traffic concerns. The Lamberts sued, claiming that the city's denial was based on their refusal to pay the $600,000. But the trial court and the Second District Court of Appeal, on a 2-1 decision, said the mitigation fee issue was irrelevant and they ruled for the city. The state Supreme Court granted a petition in 1998, but last year unanimously decided it was a mistake to hear the case. (See CP&DR Legal Digest, September 1999, October 1997.) The Lamberts then sought a hearing before the U.S. Supreme Court. According to The New York Times, Scalia lobbied his colleagues for months to take the case. But in the end, only he and Justices Anthony Kennedy and Clarence Thomas voted to grant certiorari. Four votes were needed to hear the case. In a dissent from the denial of certiorari, which justices file only a few times a year, Scalia said the Lambert's refusal to pay an excessive fee was at the heart of the matter, and the high court's Nollan/Dolan standard regarding takings should apply. Nollan v. California Coastal Comm'n 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994). Those cases require a nexus between conditions of project approval and the project impacts that are being offset. "It is simply and obviously not true that the commission ignored petitioners' refusal to satisfy its fee demand," Scalia wrote. He continued, "The object of the Court's holding in Nollan and Dolan was to protect against the State's cloaking within the permit process ‘an out-and-out plan of extortion.' There is no apparent reason why the phrasing of an extortionate demand as a condition precedent rather than as a condition subsequent should make a difference." Scalia further questioned portions of the Court of Appeal decision, which he called "so implausible as to call into question the state's court's willingness" to enforce the Nollan/Dolan standard on government officials. The case is Claude Lambert v. City and County of San Francisco, No. 99-697, 2000 Daily Journal D.A.R. 3161.

Property rights advocates suffered a second setback when the U.S. Supreme Court declined to hear a takings case from Florida. A man and his mother had purchased 40 acres, including 32 acres of swampland, in 1973 and began attempting to develop a housing tract and marina in 1980. They received state and U.S. Army Corps of Engineers permits in the early 1980s, but one state agency asked Monroe County to reconsider the project. The landowners sued and won, and the county again granted approvals in 1989. In the meantime, however, the original Corps of Engineers dredge-and-fill permit expired. The Corps refused to issue a new permit because of concerns about the Lower Keys marsh rabbit and the silver rice rat, both of which had been listed as endangered species since the corps issued the first permit. The landowners sued for damages, arguing that they had been deprived of all economically viable uses of their property. But the 11th U.S. Circuit Court of Appeals ruled that the property owner had no "reasonable, investment-backed expectations of developing his land" because the Corps of Engineers had long considered environmental factors when reviewing permit applications. Thus, the landowner was not entitled to payment for a government taking. The landowners' attorneys argued that "consideration of investment-backed expectations plays no role in per se takings" and that the 11th Circuit misread Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), a landmark takings case that required compensation when regulations prohibit "all economically beneficial use of the land." The case is Good v. United States, 99-881.

Parcels delineated in pre-1893 subdivisions do not exist as separate lots unless there has been a transfer of title at some point, the Second District Court of Appeal has ruled. In addressing the status of antiquated subdivisions, the court ruled squarely in favor of local governments that have fought to prevent legal recognition of "paper subdivisions" created prior to laws regulating the subdivision of land. In answering an unresolved issue of state subdivision law, the court said that the title must have transferred for lots in these paper subdivisions to be recognized today. A map alone is not enough. "The concept that a subdivision parcel can be created without an actual transfer is entirely a creature of modern land use regulation," Presiding Justice Arthur Gilbert wrote for the unanimous three-judge panel of the Second District, Division Six. "We can only conclude that prior to statutes regulating subdivisions, there was no subdivision prior to the time an actual transfer took place." Landowners all over the state have continued to file lawsuits regarding lot line adjustments and certificates of compliance related to old maps, said Santa Barbara Chief Deputy County Counsel Alan Seltzer, the winning attorney in this case. Seltzer said that a contrary would have been devastating because there are at least 10 antiquated maps, including an "official map" of the entire county. "It would have immediately subdivided the rural, agricultural lands into thousands of 40-, 80- and 100-acre lots. It would have subdivided the whole county," Seltzer said. But John Dorwin, the landowner's attorney, said the appellate court misread the facts and the law. "It raises more questions that it disposes of. It purports to raise this transfer test that is nowhere in the Government Code or the Subdivision Map Act," Dorwin said. The court has clouded title to lots in all but the most recent subdivisions, he said. Circle K Ranch Corp. owns property in Santa Barbara County's Santa Ynez Valley. The property is within Rancho Canada de Los Pinos, for which a privately prepared map was recorded in 1888. "The portion of Circle K's property for which it seeks a certificate of compliance is delineated by laying the metes and bounds descriptions from Circle K's deed over the government survey drawn on the 1888 map," the court described. "Circle K seeks to use a township line designated on the map as a boundary to separate a portion of its parcel lying north of the line from the larger portion of its parcel lying south of the line. … The result is a 36-acre parcel roughly shaped like a triangle." There also were "official maps" adopted by the county in 1889 and 1909 "for the use of the Assessor's office." Circle K sought a certificate of compliance for the 36-acre parcel, which the Board of Supervisors denied. The board said that the survey line defining the proposed parcel's southern boundary was never a boundary of any parcel, and that the proposed lot had never been conveyed separately. Circle K sued but lost at the trial court. On appeal, Circle K argued that the case gave the court the opportunity to answer an unresolved question — namely, what is the status of subdivisions created on paper prior to the 1893 predecessor to the Subdivision Map Act, but never sold or leased as separate lots? The state Supreme Court skirted that question when it decided Morehart v. County of Santa Barbara, (1994) 7 Ca.4th 725. In that case, the court said the county could not force a landowner — who wanted to build a house on a small lot created in 1888 — to merge a collection of 1888 lots to create a 100-acre parcel that would meet current zoning. In answering Morehart's unresolved question, the court said that a transfer must have taken place for these 19th century lots to be valid today. The court further held that the Subdivision Map Act's grandfathering provisions "have no bearing on maps filed prior to the Act." And the court ruled that an "official map" adopted by the county for assessment purposes is inadequate for a certificate of compliance. In Circle K's case, the landowner sought to use a U.S. survey line as a boundary, "but United States government survey lines do not by themselves subdivide property. (John Taft Corp. v. Advisory Agency (1984) 161 Cal.App.3d 749, 757.) Circle K is simply seeking to create a parcel where none had existed before," Gilbert wrote. Circle K attorney Dorwin said the court got the facts wrong. He said the landowner did not rely on a government survey line, but instead pointed to a subdivision map signed by a private land surveyor and recorded at the county in 1888. Dorwin also said the 1909 map drawn up for assessment purposes was recorded the following year. Plus, a 1964 deed describes portions of the subdivision, he said. Furthermore, the court did not explain why curative statutes passed at various times by the Legislature since 1915 do not apply. "These maps are all good. We don't think there's a county that has a recorded official map that can defend against certificates of compliance," Dorwin said. But Seltzer said the maps in question here say that they are for taxes and revenue purposes only. The court made clear that what was called an "official map" in 1909 was not a map for subdivision purposes. Local governments do not want to recognize antiquated subdivisions because the lots would be created without regard to environmental review, zoning ordinances, general plans or fees. Seltzer said. The California State Association of Counties, the League of California Cities and the California Coastal Commission filed amicus briefs on Santa Barbara County's side. An estimated 100,000 to 400,000 lots, some as small at 2,000 square feet and miles from a road, exist in antiquated subdivisions across California. Dorwin said he would ask the state Supreme Court to review the case. He also said he might file suit in federal court. The Second District raised a federal question when it discussed a nonexistent U.S. land survey. There are also equal protection issues, and the landowner is a Delaware corporation he said. The Case: Circle K Ranch Corp. v. Board of Supervisors of the County of Santa Barbara, No. B124996, 00 C.D.O.S. 2276, 2000 Daily Journal D.A.R. 3063, filed March 21, 2000. The Lawyers: For Circle K: John Dorwin, (805) 688-8377. For Santa Barbara County: Alan Seltzer, chief deputy county counsel, (805) 568-2950.

A City of Los Angeles home occupation permit fee has survived a legal challenge from the Howard Jarvis Taxpayers Association. The Second District Court of Appeal ruled that the Jarvis lawsuit was filed too late, that the organization failed to follow administrative procedures for refunds and that a later repeal of the fee made claims for injunctive and declaratory relief moot. The court said a lawsuit challenging such fees must be brought within 90 days of their enactment so municipalities can have fiscal certainty. The decision brought outrage from Jarvis attorney Richard Fine, who said, "There's a definite split between the judiciary and the will of the people." The Los Angeles City Council approved a home occupation ordinance on November 20, 1996. The ordinance, which amended the city's zoning code, allowed a broad array of home-based businesses in all agricultural and residential zones, so long as they did not disturb the neighborhood. The measure required business owners to register with the city and pay a $25 registration fee to defray costs of administering the ordinance. The ordinance became effective January 4, 1997, and operative on March 5, 1997. Eighteen months later, the city amended the ordinance to eliminate the $25 fee. The Jarvis organization filed a lawsuit on October 24, 1997, seeking to overturn the fee and force the city to refund what it had collected. Jarvis argued that the fee violated Proposition 218, which requires a vote on property-based assessments. But Los Angeles County Superior Court Judge Edward Ross issued summary judgement for the city because the lawsuit was filed 203 days after the deadline for bringing a legal challenge. On appeal, Jarvis argued that the 90-day statute of limitations was inapplicable because the group was not challenging the ordinance itself — only the fee — and because the general three-year limitation periods of Code of Civil Procedure §338 (a) overrode the 90-day limit. A unanimous three-judge panel of the Second District said the 90-day limitations period applied. The opinion by Presiding Justice Roger Boren noted that the Jarvis lawsuit specifically sought to declare the ordinance "illegal" and "invalid." Citing Trend Homes, Inc. v. Central Unified School Dist., (1990) 220 Cal.App.3d 102, the court ruled that the shortened limitation period for lawsuits applies "where, as in the present case, the lawsuit claims that a zoning ordinance violates a constitutional spending limitation." Boren continued, "If the Association were permitted to wait three years before suing and then seek a three-year refund of fees and business taxes paid by all persons operating businesses out of their residences, the City's ability to plan fiscally would be improperly compromised." Even if the statute of limitations did not bar the lawsuit, the claim for injunctive and declaratory relief would be moot because the city had revoked the $25 fee prior to the trial court's summary judgement, the court ruled. As for the requested refunds, the court could not order the city to repay money unless each plaintiff had first filed a claim with the city, Boren wrote. Jarvis had submitted a claim naming only one plaintiff, and he later backed out. Fine, the attorney for Jarvis, disagreed with the court's interpretations. "Under Prop. 218, if you have any type of fee based on property, you have to go out to the public. Here, they tried to call it a zoning change," he said. Fine said that although he lost the case, he was glad the court published the opinion because, "I think it's about time the that the public see what the court is doing." He contended that courts "are trying to emasculate Proposition 218." Deputy City Attorney Judith Reel, however, said the city was glad win the case and see it published because the lawsuit was a "wholesale challenge" to the city's ability to tax businesses. For decades, the city has levied assessments under a business tax ordinance no matter where the enterprise was located, she said. "It's not a property-related tax," Reel said. "If a fee is imposed on optional activity, it is not subject to Prop. 218." The city also wanted the opinion published because it is defending five other lawsuits in which people seeking various refunds did not file claims, Reel added. The Case: Howard Jarvis Taxpayers Association v. City of Los Angeles, No. B130247, 00 C.D.O.S. 2303, 2000 Daily Journal D.A.R. 3095, filed February 28, 2000, ordered published March 22, 2000. The Lawyers: For Jarvis: Richard Fine, Richard I. Fine & Associates, (310) 277-5833. For Los Angeles: Judith Reel, deputy city attorney, (213) 847-0504.

The Department of Fish & Game's flat fees for reviewing documents under the California Environmental Quality Act do not constitute taxes even though the fees do not reflect the exact cost of the CEQA review in every case, the Third District Court of Appeal has ruled. In rejecting a Shasta County landowner's argument to the contrary, the Third District reaffirmed a longstanding principle of "takings" law that property-rights advocates have unsuccessfully sought to overturn: the courts should not overturn a governmental decision on fees so long as the government agency involved has exercised reasonable judgment in determining the fee scale. " s long as the cumulative amount of the fees does not surpass the cost of the regulatory program or service and the record discloses a reasonable basis to justify distributing the cost among payors, a fee does not become a tax simply because each payor is required to pay a predetermined fixed amount," Justice Vance Raye wrote for a unanimous three-judge panel. "Flat fees are not in legal effect taxes," Raye added, and therefore the fee mechanism does not violate Proposition 13. The ruling is the latest skirmish in a decade-long legal battle over the fees. In 1990, the Legislature passed a bill permitting the cash-strapped Department of Fish & Game to impose fees on CEQA applicants of $1,250 to review negative declarations and $850 to review environmental impact reports. What was controversial was the fact that these fees were imposed on applicants seeking approvals from other agencies, not from Fish & Game, and were supposed to be used to cover the cost of Fish & Game's review as a commenting agency. Dozens of other agencies play a similar role in the CEQA process, but only Fish & Game ever received legislative authority to charge for its review. Shasta County property owner Albert Mills challenged the fees and in 1994 a Superior Court judge ruled that although the statute was not unconstitutional on its face, it was unconstitutionally applied. In a 1995 settlement, Fish & Game refunded Mills's fee and stopped collecting the fees. But subsequently the Fish & Game employee union, California Association of Professional Scientists, challenged the settlement, claiming that in the absence of a finding that the statute itself was unconstitutional, Fish & Game could not stop collecting it. Sacramento County Superior Court Judge Jeffrey Gunther ruled in favor of the union and the fee was reinstated. (See CP&DR, January 1996 and April 1996.) Mills appealed Gunther's decision. Mills argued that the Fish & Game fee was, in fact, a tax and therefore could not be imposed without a two-thirds supermajority in the Legislature. In ruling for Fish & Game, the Third District relied heavily on Sinclair Paint Co. v. State Bd. Of Equalization, 15 Cal.4th 866 (1997), which identified three types of fees: special assessment, development fees, and regulatory fees. On appeal, Mills — supported by an amicus brief from the Pacific Legal Foundation — argued that the Fish & Game fee did not fall into any of these categories. In particular, Mills argued that because Fish & Game does not operate CEQA as a regulatory program, the fee in question is not a regulatory fee. But the court disagreed, concluding that "the Legislature has given Fish and Game a critical regulatory role in the complex regulatory structure created to safeguard precious environmental resources." The other question the court dealt with is the question of whether the Legislature has the latitude to establish a fixed fee regardless of the actual cost of the services. Mills argued that because the fee was fixed, it did not cover the actual cost of CEQA review and therefore must be considered a tax. However, wrote Raye: "We hold that a regulatory fee, to survive as a fee, does not require a precise cost-fee ratio. A regulatory fee is enacted for purposes broader than the privilege to use a service or to obtain a permit. … regulatory fee does not violate article XIII A when the fees collected do not surpass the costs of the regulatory programs they support and the cost allocations to individual payors have a reasonable basis on the record." The Third District found that Fish & Game's cost of CEQA review was far greater than the amount the department collected in fees. The Cases: California Association of Professional Scientists v. Department of Fish & Game, No. C023075, and Mills v. Department of Fish & Game, No. C023184, 00 CDOS 2760, filed April 10, 2000. The Lawyers: For California Association of Professional Respondents: Dennis F. Moss, (818) 246-0629. For Department of Fish & Game: Charles Getz, deputy attorney general, (415) 356-6348. For Albert Mills: Walter McNeill, (530) 243-0190.