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

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

The State Supreme Court has accepted for review a Proposition 218 case from Shasta County. All seven justices voted to review the decision in Richmond v. Shasta Community Services District, No. S105078 (see CP&DR Legal Digest, April 2002). In February, the Third District Court of Appeal ruled that the district's water connection fee was a development fee and, therefore, was not subject to the constraints of Proposition 218. However, the court ruled that a "fire suppression" assessment levied at the same time as the water connection fee was subject to Proposition 218 and required two-thirds voter approval. The difference, the court held, was that the water connection fee was based on the cost of providing new capacity and the projected number of eventual water users. The fire fee, however, was a general governmental assessment, which must be approved by voters. The appellate court's decision appeared to satisfy no one. The League of California Cities sought to have the opinion depublished. The developers who filed the lawsuit sought a review by the state high court. No date has been set yet for oral arguments.

Sacramento County properly used 1997 conditions as the baseline for the environmental review of an airport project, even though the general aviation airport had been operating and growing without county permits since the early 1970s, the Third District Court of Appeal has ruled. The court rejected an argument from airport neighbors that conditions in effect in 1970 — the year the California Environmental Quality Act was adopted — should serve as the baseline because the airport had never received environmental scrutiny. " County followed the required procedures," Justice Connie Callahan wrote for the unanimous three-judge panel. "The initial study represents an objective, good faith effort to comply with CEQA. It describes the existing environmental setting, and the limited impact of the proposed expansion project." The facts of the case are complicated. An airport has operated at the site of Sunset Skyranch Airport in Elk Grove since 1934. In 1971, Daniel Lang acquired the property, which then consisted of a dirt landing strip, one hangar and four or five airplanes. That same year, the Sacramento County Board of Supervisors approved a conditional use permit for "a private use airstrip and ancillary uses." The use permit was good for two years but was never renewed. A 1972 county general plan amendment designated the site for a public use airport. Also in 1972, the state issued an airport permit for the property, and the permit has been kept active since then. In 1988, the Airport Land Use Commission of Sacramento, Sutter, Yolo and Yuba Counties (ALUC) adopted the Sunset Skyranch Airport Comprehensive Land Use Plan. The ALUC declared the project exempt from CEQA, a decision no one challenged. In 1989, the county denied the airport a business license. The following year, the county planning director rejected the airport's application for a certificate of nonconforming use. The county also initiated two zoning enforcement actions to require the airport to get a conditional use permit. Meanwhile, the ALUC amended the comprehensive land use plan in 1992. By that time, the runway had been paved, 71 aircraft were based on the airport (including 22 in hangars) and annual operations were estimated at 30,000 flights and landings. The ALUC adopted a negative declaration because the agency determined the plan amendment would not have a significant effect on the environment. Again, no one contested the negative declaration. Lang and Sunset Skyranch Pilots Association finally applied to the county for a conditional use permit in October 1997. They said they wanted to secure the long-term right to continue operations, acquire building permits for existing structures, and get permission to build about 24 additional hangars. The county found the project would not have a significant effect on the environment and issued a negative declaration. This time, neighbors Kenneth Fat and Wing Fat challenged the negative declaration during the comment period. They argued the county failed to consider the impact of noise and possible crashes on future residents, and complained that the county did not provide for mitigation. The county Planning Commission and, on appeal, the Board of Supervisors voted for the use permit and the negative declaration. The Fats filed a lawsuit and won at the Sacramento County Superior Court. Judge James Ford ordered the county not to approve the conditional use permit "until the County conducts a CEQA review that analyzes the environmental impacts resulting from the Airport's past from 1970 to the present." Ford did not rule on any other issues. The county and the pilots association appealed to the Third District, which reversed the lower court. There is conflicting case law regarding the setting of the baseline for environmental reviews. In Lewis v. Seventeenth Dist. Agricultural Assn. , (1985) Cal.App.3d 823, the court set the baseline at a time prior to review of a project. That case involved residents' objections to operation of Ernie Purssell Memorial Speedway at the Nevada County Fairgrounds. The racetrack had been upgraded 12 years earlier without environmental review. The court decided the racetrack was not categorically exempt, as the fairgrounds argued, and the court ordered the fairgrounds to cancel a contact for auto racing until an environmental impact report on the upgrades was completed. However, the court in Bloom v. McGurk , (1994) 26 Cal.App.4th 1307, took a different approach — one favored by the Third District in the current airport dispute. Bloom involved Integrated Environmental Systems (IES), which transported hazardous waste for years without proper state permits. The Bloom court decided that the baseline for CEQA purposes was the time IES applied to the state for permits, not the time CEQA was enacted. One of the most recent baseline cases, Riverwatch v. County of San Diego , (1999) 76 Cal.App.4th 1428 (see CP&DR Legal Digest , February 2000), seemed to bolster the Bloom approach. Riverwatch , like the present case, also dealt with prior unpermitted activity. The Riverwatch court ruled that CEQA review was not the proper forum to address the prior activity. Callahan quoted from Riverwatch : " e believe a more prudent method of dealing with alleged prior illegality is to rely in the first instance on direct enforcement by the agencies charged with the responsibility of doing so, and second, to rely on such enforcing agencies to comment in the EIR process on the impact any new project may have on their enforcement activities." Bloom and Riverwatch supported Sacramento County's decision on the baseline, the court ruled. Further bolstering the county's position was § 15125 subdivision (a) of the CEQA Guidelines, which provides the general rule that "environmental impacts should be examined in light of the environment as it exists when a project is approved." The area surrounding the airport has remained largely agricultural, the court noted. Plus, the ALUC conducted an environmental review in 1992, and the resulting negative declaration was never challenged, the court added. The Case: Fat v. County of Sacramento , No. C037610, 02 C.D.O.S. 3642, 2002 DJDAR 4646. Filed April 2, 2002. Ordered published April 26, 2002. The Lawyers: For Fat: John Gabrielli, (530) 753-0869. For the county: Diane McElhern, county counsel's office, (916) 874-5544.

The City of Palm Springs added improper conditions to a subdivision map approval when it considered a property owner's proposal to subdivide a mobile home park so that the park could be converted to resident-owned, the Fourth District Court of Appeal has ruled. In approving the project, the City Council determined the subdivision map would not become effective until about one-third of the lots were sold. The council also required that the sale price of lots be determined by an appraiser paid by the project proponent, and that the current owner provide more than $1 million in assistance to help residents purchase their lots. The court ruled the city only had authority to determine if the project was consistent with the Subdivision Map Act, and the city could not add the three conditions. The court directed the City Council to reconsider the application for its consistency with the appropriate statute. The dispute concerned El Dorado Mobile Country Club, whose owner and residents have been in court for a variety of disputes over the years. In 1993, owner El Dorado Palm Springs Ltd. (known as El Dorado) filed an application to subdivide the 377 units within the park. The application was the first step in converting the park to a resident-owned facility. The city finally accepted the application as complete in 1999. If approved, the park would no longer be subject to the city's mobile home rent control regulations, which do not apply to resident-owned parks. Typically, residents are behind the conversion of a mobile home park to resident-owned. But in this case, the property owner proposed the conversion. The City Council feared the conversion was a sham to avoid rent control regulations, so it added conditions to protect residents. El Dorado sued the city. Riverside County Superior Court Judge Lawrence Fry ruled for the city — a decision the unanimous three-judge appellate panel overturned. The central issue in the case was what section of the Subdivision Map Act governed the city's consideration of the tentative map application. The park owner argued that Government Code § 66427.5 contained the controlling language. It limits the City Council's consideration to determination of the tentative map application's compliance with that section. The city and the park residents argued that § 66427.4, subdivision (c) governed the matter. That subdivision authorizes the city to require the owner "to take steps to mitigate any adverse impact of the conversion on the ability of displaced mobilehome park residents to find adequate space in a mobilehome park." The Fourth District ruled that El Dorado was correct and § 66427.5 applied. Both sections apply to conversions of mobile home parks. But the city's favored section applies only if the park is being converted to another use, such as a shopping center, the court ruled. " change in ownership is not a change in use," the court ruled. The park owner's preferred section (§ 66427.5) states that it applies to "the conversion of a rental mobilehome park to resident ownership." " he City Council, in acting on El Dorado's application for approval of the tentative subdivision map, only had the power to determine if the El Dorado had complied with the requirements of the section. (§ 66427.5, subd. (d).) It therefore had no power to impose the three further mitigating conditions on El Dorado," Justice Thomas Hollenhorst wrote for the court. The court agreed that the law could be used for sham conversions that would allow the property owner to avoid local rent control ordinances. That loophole "may be a legislative oversight," but it does exist. Still, the applicable section offers some protection to residents. The law requires the subdivider to offer existing tenants the option to purchase their lots or remain as tenants. And the law requires that rent increases to market levels be phased in over four years, the court noted. As for when the conversion is complete — and the local rent control ordinances no longer apply — the court said the conversion occurs when the first parcel of the new subdivision is sold. The court pointed to the state Supreme Court's decision in City of West Hollywood v. Beverly Towers, Inc. , (1991) 52 Ca.3d 1184 (see CP&DR Court Cases , April 1991). In that case, the Supreme Court "found the decisive date was the date the developer secures final subdivision map approval and permission from the Department of Real Estate to sell units. The court also noted that a single conveyance completes the conversion process under Civil Code § 1352," Hollenhorst wrote. The city does not have authority to change that date. In other issues, the court rejected El Dorado's argument that its tentative map application was "deemed approved" because the city had not acted by the statutory deadline. The court ruled that although the City Council adopted a resolution one month after the deadline, the City Council had voted its intent by the deadline. Also, the court rejected the argument from residents that El Dorado, when it applied for a tentative map, had to disclose the tentative purchase price for parcels and the market rents it will charge. The applicable section of the Subdivision Map Act does not require such disclosure, the court held. The Case: El Dorado Palm Springs, Ltd., v. City of Palm Springs , No. E029198, 02 C.D.O.S. 2418, 2002 DJDAR 2937. Filed March 14, 2002. The Lawyers: For El Dorado: James Colbert III, O'Melveny & Myers, (213) 430-6000. For the city: William Wynder, Burke, Williams & Sorensen, (949) 863-3363. For the residents: Robert McFadden, McFadden & Associates, (760) 327-4731.

Del Paso Heights is a neighborhood frozen in time. With its large lots and streets without sidewalks or storm drains, the 1,500-acre neighborhood has a kind of shabby charm that recalls its former role as the suburban fringe of the long-gone City of North Sacramento. The neighborhood seems suspended at the moment just before a rural or quasi-rural area undergoes urbanization — that is, when large lots get subdivided for single-family housing, when streets get paved and the casual "house here, house there" of farm-oriented land use gives way to a regular system of streets and structures. The problem is that Del Paso Heights is no longer a suburban fringe. Since Sacramento annexed North Sacramento in the 1960s, Del Paso Heights has found itself encased in the larger city. The area's lack of urban design became a drawback. Moreover, the lack of a coherent street system combined with lots as large as two acres made development difficult. As a result, Del Paso Heights is both rundown and underdeveloped. Many of the existing houses date from the early 1940s, when the area was a neighborhood of working-class people who were employed at McClellan Air Force Base a few miles to the northeast. Currently, many Del Paso Heights homes and apartment buildings are dilapidated or poorly maintained, and the area has a high level of absentee ownership. Both crime and unemployment rates are well above average. In 1973, the city designated Del Paso Heights a redevelopment area and spent the next two decades improving some streets, and sponsoring small infill housing projects, including many apartment buildings. In 1996, the city won a $10.5 million grant from the Department of Housing and Urban Development to redesign the community as a "home ownership zone." The HUD grant, which funded land acquisition and new infrastructure, also specified a "neo-traditional" style for the community. In 1997, the city hired the Sacramento office Carter & Burgess, a national planning firm, to create a master plan for a 150-area within Del Paso Heights to be called Del Paso Nuevo. The project was nothing less than a complete remake of the entire area, including streets, sewers, parks and several flood detention basins for unchannelized Arcade Creek. To promote homebuilding and commercial development, the city is currently assembling about 60 of the 200 parcels in the area, while trying to minimize the use of eminent domain. The goal is to build 300 new homes, while promoting programs to fix up existing houses. A private homebuilder has just finished 54 single-family homes and plans to build 23 more. A third of the new homebuyers are existing Del Paso Heights residents, which testifies to the effectiveness of a policy to prevent the wholesale displacement of local residents. The master plan for Del Paso Nuevo is straightforward, even though there are subtleties in the plan that are not visible at first glance. The planners have established a more or less regular street grid, bordered by Arcade Creek to the south. The Sacramento Northern Parkway, a landscaped bike path fashioned from an old rail easement, lines the eastern boundary. The high-density and community-oriented uses are concentrated on the west, where we find neighborhood retail, civic buildings, churches and multi-family buildings, with a maximum density of 15 dwelling units per acre. In the single-family areas, homebuilders are now constructing familiar, neo-trad housing with front porches and recessed garages. Street trees — including sycamores, California oak and Eastern oaks — outline the streets, which is common practice in Sacramento. The most dramatic form in the site plan, perhaps, is the seven-acre Nuevo Park, which intrudes into the civic area, both to provide a pleasant green backdrop and to slow traffic through this potentially crowded area. Not shown in the master plan, although almost as important, are the linkages to the city at large. The main north-south linkage is Norwood Avenue on the western edge of Del Paso Nuevo, connecting the new neighborhood to Interstate 80 on the north and the emerging Uptown Arts District to the south. The major east-west connection is Silver Eagle Road, which links to the South Natomas area via the East Main Canal bridge. An existing light-rail station is three-quarters of a mile away. Beyond the automobile, the area also has bike paths, including the north-south links along the Northern Parkway, and east-west along Arcade Creek, from which bicyclists can eventually access the heavily used regional bike paths along the American River. The most ingenious part of the plan, arguably, is the dual role played by the two parks as both recreational areas and detention basins. The more active park in the center of the plan provides a public amphitheater that steps down to a bandstand. Less formal is the northeastern portion of the same park, which is a slope planted with native species and described officially as "maintenance free," (although Jeff Townsend, managing principal of Carter & Burgess, is quick to add that there is no such thing as a maintenance-free park). This slope provides a diagram of Sacramento plant life, ranging from wetlands species at the base to the dry, grassy, drought resistant plants on the upper slope. A path of broken concrete winds its way down this slope, and does double duty as a pathway and as a kind of dam that captures sediment during flooding. If the urbanization of Del Paso Nuevo has brought about the loss of a certain nostalgic landscape of formless suburbia, there have been some positive returns. A neighborhood that was an isolated island within Sacramento is being integrated into the circulation, and presumably the social life, of the city as a whole. It is particularly gratifying to see the way that urban development and environmental repair — activities that are often at loggerheads — have been brought together in the design and planning process. Beyond unbinding a trapped neighborhood, Del Paso Nuevo is a welcome example of multi-purpose design in an urban area that is enlarging its range of possibilities.

Water bonds are as familiar as summer reruns to California voters, who have considered at least 16 of them on statewide ballots since 1960 — the year voters narrowly approved spending $1.75 billion to build the State Water Project. On November 5, however, the electorate is likely to consider a water bond measure that is different from all predecessors. Instead of being drafted by legislators and lobbyists in Capitol hallways and committee rooms, the Water Quality, Supply and Safe Drinking Water Act of 2002 is the product of citizen initiative. Sponsors submitted more than 750,000 signatures in April, and Secretary of State Bill Jones certified the initiative for the ballot a month later. Statewide water bond measures usually creep along a tortuous and cryptic political path outlined by lobbyists and veteran staffers. There are arcane pitfalls to avoid and scores of competing interests to satisfy — farms and cities, fish lovers and dam builders, rural and urban water agencies — if a proposal is to avoid fatal opposition. Complex, behind-the-scenes negotiations are standard procedure. The citizen initiative process, in contrast, tends to reward advocates whose argument can be conveyed effectively during a quick pitch for petition signatures in shopping mall parking lots. Statewide water planning does not typically lend itself to this sort of simplification. The Water Quality, Supply and Safe Drinking Water Act of 2002 also differs from most water bonds in the way it blends funding for water projects with money for habitat conservation. And, although people are calling it a "water bond," the measure would do little to procure new supplies. Most of the funding categories focus on enabling users to get more mileage out of existing supplies. The 12 legislative water bond measures approved by voters during the 1960s, '70s and '80s focused exclusively on building things: dams, canals, sewage treatment and reclamation plants, purification facilities, pipelines, pumping stations. None explicitly allocated a single dollar to ecological programs. That began to change in 1996 with Proposition 204, which allocated more than $500 million to ecological restoration, and fish and wildlife programs primarily associated with the Cal-Fed Bay-Delta Program. Cal-Fed is a state and federal effort to reverse the decline in sensitive fish and wildlife populations in the Bay-Delta region while also increasing the quality and reliability of the water supply diverted from the Delta to farms and cities. The linkage between water supply and environmental protection continued in 2000 when California voters approved Proposition 13, a $1.97 billion bond measure that provided $250 million for Bay-Delta fish and wildlife programs, and $468 million for watershed restoration and protection elsewhere. The logic of this linkage is clear. In an ecosystem compromised by urban development, farming and dams, water often is degraded and costly to make drinkable, and fish and wildlife populations often are endangered, requiring that diversions be reduced or managed differently to keep imperiled species from suffering further harm. The initiative awaiting certification by Secretary of State Bill Jones for this November continues this merger of water-supply and environmental concerns. It is, in effect, a hybrid of three major issues: Cal-Fed, the California 4.4 Plan (under which the state must reduce diversions from the Colorado River to its legal entitlement of 4.4 million acre-feet a year), and protection and restoration of watershed and coastal wetlands. Joe Caves, the veteran Sacramento lobbyist responsible for the initiative, says the initiative started out to be a coastal watershed and wetlands campaign. He and the environmental groups that are the initiative's primary proponents decided to broaden it to include water-supply components when they realized that funding for Cal-Fed was drying up, and that it would take too long to coax a conventional water bond through the Legislature. "Proposition 13 took about three years to negotiate, hammer out and work through," Caves noted. The state can't wait that long. In 2000, California and federal officials committed to a seven-year funding plan for costly improvements to the Bay-Delta system. Although the state already has committed or spent hundreds of millions of dollars, its full obligation is likely to approach $5 billion. Propositions 204 and 13 provided money for Cal-Fed, but not nearly enough; lawmakers had been dipping into the general fund to supplement the bond funds. With the state facing a huge budget deficit this year, the general fund is no longer an option. So, after consulting with staff of The Nature Conservancy, the Audubon Society, Heal the Bay and other environmental groups — as well as the Metropolitan Water District, which is bearing the brunt of California's effort to reduce Colorado River diversions — Caves and his staff drafted, circulated and apparently qualified a water bond initiative. The state is in the second year of the seven-year Cal-Fed process; Caves said his initiative fully funds the state's share of programs in years four and five. The initiative's $3.44 billion breaks down this way: Coastal watershed and wetland protection ($950 million): * Coastal watershed protection * San Francisco Bay wetland protection and restoration * Southern California wetland and watershed protection CAL-FED Bay-Delta program ($825 million): * Storage planning and studies * Water conveyance * Delta levee restoration * Interim water supply reliability * Ecosystem restoration * Watershed protection * Conservation and efficiency projects Integrated regional water management ($640 million): * Water supply reliability, storm water capture * Wetland restoration, pollution reduction * Groundwater recharge, salt removal and reclamation * Water banking and exchange * Integrated flood management * Fish and wildlife enhancement Safe drinking water ($435 million): * Small system upgrades * Treatment and contaminant removal * Drinking water source protection * Revolving loan fund Clean water and water quality ($370 million): * Pollution prevention, reclamation, blending and exchange * River parkways that provide water quality benefits * Lake Tahoe water quality projects * Clean beaches * Sierra Nevada water quality projects Contaminant and salt removal technologies ($100 million): * Desalination projects * Treatment projects for MTBE, arsenic, chromium, etc. Colorado River ($70 million): * Canal lining * Ecosystem restoration Water security ($50 million): * Monitoring and early warning systems * Protective structures * Emergency interconnections * Communication systems Contacts: Joe Caves: (916) 558-1516. Text of the Water Quality, Supply and Safe Drinking Water Act of 2002: www.pcl.org/bonds/water/text.html Cal-Fed Program: http://calfed.ca.gov/

An initiative that would require Nevada County to pay property owners if a land use regulation diminishes property value appears headed for the November ballot. Both opponents and supporters of the initiative expect that Nevada County will approve the initiative — and that it could lead to similar efforts in other parts of California, especially in conservative rural counties. The initiative would establish a process for landowners to present claims to Nevada County Superior Court for reimbursement if the landowner believed a county regulation restricted the use or utility of property. The use or utility of property would be based on existing zoning, said Russell Steele, chairman of Citizens for Fair and Balanced Land-Use. The Superior Court would award claims based on a real estate appraisal. A number of organizations on both sides of the "takings" debate are at least monitoring the Nevada County election because of its potential to set a precedent. The American Planning Association's California Chapter and national APA leaders are "watching in horror" but have not taken any active role yet, said Sande George, the California Chapter's Sacramento lobbyist. Meanwhile, the Sacramento-based Pacific Legal Foundation, one of the country's foremost property rights advocacy groups, is cheering on the Nevada County effort after providing input on early drafts of the initiative. Initiative backers used Oregon's Measure 7, which voters approved in November 2000, as a model for the initiative, Steele said. The measure is necessary, he said, because "the county doesn't follow its own rules." "All we're doing in this initiative is bringing the constitution down to the county level," Steele said. "We're trying to protect the little guy." Opponents, however, say the initiative is unnecessary, too vague, and illegally imposes a new responsibility on the Superior Court. If the measure does pass, a court challenge is certain, although, not surprisingly, the two sides disagree on the measure's legality. Sharon Boivin, a retired county planner and current planning commissioner, said "ultraconservative" old-timers are purposely pursuing a divisive initiative because they have lost control of the Board of Supervisors to slow-growth advocates for the first time in county history. "It's probably more aimed at discrediting this board," she said of the initiative. Stretching from the Sacramento Valley's oak woodlands over Donner Pass to the Nevada state line, Nevada County has a history of polarized politics as the county's economic base of mining, logging and ranching has faded. During the 1960s, high-tech video companies migrated to the Grass Valley and Nevada City area. Also beginning in the late 1960s, the county began attracting a diverse new population: retirees buying homes in semi-rural subdivisions, back-to-the-land types moving into the woods, and artists drawn to a burgeoning cultural center. In spurts during the last 20 years, the area has drawn "equity refugees" from the Bay Area and Southern California, as well as commuters to the Sacramento metropolitan area. The Board of Supervisors remained in the pro-growth conservative camp until the last few years. Now, a 4-1 slow-growth majority controls the county. Two of the slow-growth supervisors, Elizabeth Martin and Bruce Conklin, face property-rights candidates in a November election. Further complicating the situation is a two-year-old county effort to inventory and map biotic resources with the intent of protecting agriculture, forestry and recreation. The effort, known as Natural Heritage 2020, "will be the most detailed habitat information of any county in the state when it's done," Planning Director Mark Tomich said. However, property rights advocates assailed the process as a new regulatory scheme. Feeling the heat, supervisors have ordered planners to speed up the process and finish their work by June 30. Behind the initiative is the Grass Valley-based California Association of Business Property and Resource Owners (CABPRO), a nine-year-old organization with ties to the Wise Use Movement. CABPRO President Margaret Urke said the county made the initiative necessary by treading on property rights, prohibiting some subdivisions and blocking development with environmental regulations. "Our hope is this will deter the supervisors from creating these regulations and imposing a burden on property owners," said Urke. Any money the measure would cost the county is money the county would have taken from property owners via regulation, she contended. Supervisor Martin does believe the measure could break the county financially. Martin said initiative advocates want "mob rule," not a well-reasoned political process. She also decried the vagueness of the initiative. "I completely support people's property rights," said Martin, a Penn Valley farm owner and longtime family farm advocate. "I don't even know what these people are trying to accomplish because their language is so muddy." In late May, initiative organizers submitted nearly 6,000 petition signatures, about two-thirds more than necessary to qualify for the November ballot. The initiative is one of the first local initiatives of its kind anywhere. More limited legislative efforts to compensate landowners for "takings" have arisen in some states and communities. A Florida law requires compensation when a property owner is "inordinately burdened" by regulation. Oregon's Measure 7 is broader, calling for the government to pay property owners for any regulation that devalues property. Thus far, an Oregon court has blocked Measure 7 from implementation because it improperly amended the state constitution. Timothy Dowling, chief counsel for the Washington. D.C.-based Community Rights Counsel, called the Nevada County measure "a one-size-fits-all compensation mandate that has no relationship whatsoever with the takings clause of the Fifth Amendment." Dowling, who has filed briefs at the U.S. Supreme Court defending government regulatory practices, said the measure favors owners of vacant land over existing homeowners, who could feel the impacts of new development. Dowling and other opponents are particularly critical of initiative proponents' reliance on nuisance, and public health and safety exceptions. Government uses its police power to regulate land use because healthy and safety, and nuisance definitions are narrow, often unclear and can fail to protect neighboring properties, they say. Opponents also question whether a county ballot initiative can assign a duty to a state court, and opponents complain the measure creates an undefined process. Dowling further complained that the initiative would "displace 200 years of takings jurisprudence." That, however, is just the point, says Tahoe City attorney and planning consultant Gregg Lien, who wrote the initiative. The ballot measure would establish a new and separate process for property owners seeking compensation because landowners are now "impotent" in the current legal system, Lien contended. Lien said he made the initiative short — it is seven sentences — because he wanted something "easily understandable" and because building all the complexities into the ballot measure was infeasible. James Burling, an attorney for the Pacific Legal Foundation, called the initiative "a step in the right direction." It arises because the pursuit of takings claims in state and federal courts can take years, he said. "Is it legal or not? That's hard to say. There's never been an initiative quite like it in California," Burling said. "I don't see any immediate infirmities." If the measure passes, both sides expect any potential infirmities to be tested in court. Contacts: Russell Steele, Citizens for Fair And Balanced Land-Use, (530) 273-8085. Margaret Urke, California Association of Business Property and Resource Owners, (530) 478-1331. Gregg Lien, initiative author, (530) 583-8500. Elizabeth Martin, Nevada County supervisor, (530) 265-1480. Timothy Dowling, Community Rights Counsel, (202) 296-6889. James Burling, Pacific Legal Foundation, (916) 362-2833. Initiative website: www.fairnessinitiative.org ---------- The people of the County of Nevada ordain as follows: Nevada County (the "County") shall provide an orderly process for addressing claims for reimbursement, payable to the property owner, when it is determined that there is a reduction in the market value of an owner's parcel. After passage of this initiative, this process applies to proposed projects when regulatory actions or determinations by the County restrict existing use or utility, in whole or in part, of the affected parcel. Restrictions based upon a clear and present danger to public health and safety, and traditionally recognized common law nuisance prohibitions, shall not be considered in calculating reductions in value. A property owner seeking reimbursement pursuant to this initiative shall first seek beneficial best use of the property. This best use must be denied by the Board of Supervisors prior to filing a claim. The Superior Court of the County shall have exclusive jurisdiction over claims made, and shall have the power to make independent findings of fact and conclusions of law, and shall not be bound by findings or determinations by the County. Reimbursement shall equal the difference in market value, with and without the regulation or action complained of, and shall include reasonable attorneys' fees and costs. If any phrase, clause or part of this initiative is found to be invalid by a court of competent jurisdiction, the remaining phrases, clauses and parts shall remain in full force and effect.

Once the largest concentration of dairy cows in the United States, the San Bernardino County Dairy Preserve is on the verge of becoming home to more than 200,000 people. The City of Chino is finishing work on a specific plan for 5,435 acres, and City of Ontario officials are refining a development fee schedule, the last document needed before the city begins processing development applications for 8,200 acres on the south end of town. To different degrees, both plans depart from the large-lot, single-family home development that characterizes much of the area. Chino's plan squeezes 9,700 dwelling units and about 10 million square feet of office, retail and industrial development onto 2,261 acres, or slightly less than half of the specific plan area. The remaining land lies in the floodplain behind a flood control dam on the Santa Ana River and will be set aside for open space, habitat, parks and even some farming. The Ontario plan devotes about 4,400 acres to low-density single-family home development at 4.6 houses per acre. But the plan also devotes numerous areas for housing of 12 or 18 units per acre, and calls for about a dozen neighborhood centers, a town center and two other major centers at either end of the plan area. "Ontario and Chino, I think, can lead the way in the Inland Empire for smart growth," said Dan Silver, executive director of the Endangered Habitats League. Three years ago, Silver's group and the Sierra Club sued Ontario over its "New Model Colony" plan. Earlier this year, the environmentalists settled when the city agreed to impose an additional development mitigation fee. Silver has become at least partially a fan of the plan. "It's kind of halfway there," Silver said. But the Chino plan, he said, "is the single most progressive land use plan I've seen in the Inland Empire." Even Ontario Planning Director Jerry Blum acknowledges that Chino has taken a number of "smart growth" principles — mixed-use development, public transit, a pedestrian orientation — farther than Ontario did. But, Blum and others note, Chino's plan was at least partially driven by the flood control project that makes more than half the site off limits to development. Whatever the respective plans say, developers are eager to start building. Lewis Homes of Upland has purchased more than half of the developable land in the Chino plan area. Forecast Homes and Lennar Homes have both submitted applications to Ontario, and three other developers are talking with the city, Blum said. Together, the Ontario projects would total about 2,000 housing units. The dairy preserve is a prime location, said Frank Williams, executive director of the Building Industry Association of Southern California's Baldy View Chapter. It is near job-rich Los Angeles and Orange counties, and it could attract some of the businesses that are getting squeezed out of coastal areas by high real estate prices. The land is becoming available for development after about 50 years as the center of California's dairy industry. San Bernardino County began the phase out of the agricultural preserve in 1993, and since then at least half of the 400 dairies in the area have moved, mostly to the San Joaquin Valley, the high desert and Arizona (see CP&DR , August 2000 ; CP&DR Local Watch , March 2000 ). Although urban development has encroached to the border of the dairy preserve, the area remains home to tens of thousands of cows, and farmers still grow feed and row crops. The Chino Plan, called "The Preserve," is centered around a tight, 125-acre community core that is intended to feature a wide variety of residential, retail, office and civic uses. The plan urges pedestrian-friendly development along a lively promenade. Residential development of varying densities would surround the community core. To the north and west, near the Chino Airport, the plan provides 475 acres for industrial development. A regional commercial center is designated for the western edge. The plan "captures the best of what we see occurring in the best planned communities in Southern California," said Chuck Coe, Chino community development director. The plan recognizes the need for a wide range of housing and for transit. "Theoretically, you could spend your whole life there," while moving from one type of housing to another, said Robert Prasse, of Hogle-Ireland Inc., who is managing the project for the city. The plan also recognizes the desire to continue developing industrial uses near the airport. The overall mix of uses should provide a strong sense of community, Coe said. Exactly what will happen with the nearly 3,000 acres that lie in the Prado Dam floodplain is uncertain. The U.S. Army Corps of Engineers and the Orange County Flood Control District own most of the property, so the city has little control, Coe said. Much of the land will probably remain as undeveloped open space. One hurdle Chino officials will need to overcome is The Preserve's isolation from the rest of the city. The airport, a state prison and the City of Ontario separate the plan area from the existing city of 67,000 people. To help connect the new with the old, the city plans to open branch offices in the community center, and The Preserve will get street names with historical Chino connections, Coe said. City officials also figure The Preserve residents will come to the older part of town for cultural activities. Chino officials hope to circulate a revised environmental impact report this month before moving into the public hearing process in August. The City Council could adopt the plan this fall. The city would then proceed with annexation, Coe said. Ontario's planning process, which began in 1995 with the appointment of an advisory committee, is farther along. The city adopted the New Model Colony plan as a general plan amendment in 1998, and completed annexation in late 1999. Environmentalists sued over the project's impacts but lost in trial court. The plaintiffs appealed but dropped the suit early this year when Ontario officials agreed to impose an addition $2,000-per-acre mitigation fee. The fee, when added to the originally proposed $2,700-per-acre levy, means developers will provide about $25 million for habitat. The money will likely to go to a land conservancy for the purchase and maintenance of property and open space easements, although many details remain unfinished. Unlike the Chino plan, Ontario's plan calls for developing nearly the whole area, with even the open space being designated for active-use parks, a golf course and bicycle paths. Silver, of the Endangered Habitats League, calls it "wall-to-wall development." But he concedes that decades of industrial dairy operations, and the enormous buildup of cow manure, have highly degraded the landscape. To Blum, the approach makes sense. "In its truest sense," said Blum, "this is a brownfield — about four feet thick! … Our point was, let's build the hell out of this place because it's the doughnut hole. It's surrounded by urban uses. It's not habitat for anything. Maybe we could prevent, for a time, the development of more sensitive land out in desert or along the Santa Ana River." Besides the 4,400 acres of single-family homes at 4.6 units per acre, the New Model Colony plan designates about 800 acres for multi-family housing development (including mixed-use housing in the town center), 500 acres for neighborhood and regional commercial development, and about 340 acres for industrial uses and business parks. The plan is not as transit-oriented as Chino's, Blum noted. Chino's proposed plan includes design guidelines and would allow developers to move right to the tract map stage. Ontario's plan requires developers to bring in a new specific plan proposal with every project, which makes for a longer process. Blum expects the first project will receive approval in 2003. The area has very little infrastructure, which everyone acknowledges will add to development costs. Chino's portion of the ag preserve will require approximately $220 million in infrastructure, not including schools, Prasse estimated. Although the cities share a boundary, Chino and Ontario have not coordinated their planning efforts. Coordinated planning is not something that occurs in San Bernardino County, Blum lamented. Both cities commented extensively on the other's plan, and the two entities eventually talked about traffic circulation, Blum said. The cities have not coordinated at all with Riverside County, whose unincorporated Eastvale district is adjacent to Ontario and Chino. Riverside County's proposed general plan places a new town center in Eastvale, but most of the area is designated for large tracts of single-family homes. Contacts: Jerry Blum, Ontario planning department, (909) 395-2199. Chuck Coe and Robert Prasse, Chino community development department, (909) 590-5549. Dan Silver, Endangered Habitats League, (323) 654-1456. Frank Williams, Building Industry Association of Southern California, Baldy View Chapter, (909) 945-1884.

California is on the verge of an unprecedented surge in school construction. State voters' willingness to lower the threshold of approval for local school bonds from two-thirds to 55% has drastically increased the number of bonds issued by districts. If state voters approve the two largest bonds in California history — $13 billion in November and $12.5 billion in March 2004 — school construction would take off. About 90% of local school bonds are passing these days. That figure cheers officials at school districts, which must provide a 50% match to be eligible for the state bond money. School supporters say the influx of money is the best thing to happen to educational facility development in decades. The money is building additional classrooms, libraries and auxiliary facilities, and is modernizing schools that have received minimal maintenance for decades. Some taxpayer advocates, however, warn that some school districts are using their new revenue-raising abilities recklessly and are accumulating huge amounts of debt. State Sen. Jack O'Connell (D-San Luis Obispo), who carried constitutional amendment legislation for 13 years to reduce the two-thirds voter approval requirement, said the state and local districts need to make up for decades of neglect. "We've lost a generation of students because of the burdensome, onerous two-thirds requirement," said O'Connell, who is running for state superintendent of public instruction. Lowering the voter threshold to 55% "has really revolutionized" school construction, he said. But Kris Vosburgh, executive director of the Howard Jarvis Taxpayers Association, said dropping the two-thirds requirement is burdening homeowners. "Bonds are passing almost regardless of merit," said Vosburgh, who complained that bonds are funding stadiums, culinary arts facilities and even a simulated golf driving range at one community college. "We're seeing a lot of nonsense and fluff incorporated into these bonds." Either way, the increased bond funding appears to be taking pressure off developers. With bond financing, school districts can replace portable classrooms with permanent capacity — eliminating the basis for "Level II" development fees, said Jeanette C. Justus, a school facilities consultant for Southern California developers. Level II fees can run to about $6 per square foot — about three times the current Level I fee. Plus, said Justus, good schools help developers sell houses. Starting in the early 1970s, local school bonds began to fail in large numbers. Those losses at the polls preceded the taxpayer revolt of 1978, when the state electorate approved Proposition 13 and essentially shut down local bonding. It was not until 1986 and the passage of Proposition 46 that local school bonds became feasible again. Still, the state constitution required two-thirds voter approval of local general obligation bonds — a requirement that dates to the 19th century. From 1986 through 2000, about 60% of school bonds received the necessary two-thirds approval. The bonds were most likely to pass in wealthy communities and least likely to gain approval in poor areas. The system made school districts more and more dependent on the state for facilities funding, said Robert Corley, a Ventura-based school facilities and planning consultant. In March of 2000, voters rejected a state constitutional amendment that would have reduced the voter threshold for local school bonds to 50%. But eight months later, voters approved Proposition 39, which allows passage at 55% with some additional restrictions. The ability to pass bonds with a 55% vote has empowered school districts, Corley said. "When we look back in 50 years, the passage of Prop. 39 will be a date when things started to get better," Corley said. "It's a step in shifting the balance of power back to the locals." Since the first 55% elections in early 2001, school bonds have passed about 90% of the time — and voters are now deciding more local school bonds than ever before. During the March 2002 election, K-12 and community college districts put forth 78 school bonds, including 73 that required only 55% approval. (Some school districts have not gone the 55% route because the lower threshold requires districts to more specifically identify how they will spend the money and requires establishment of a citizen oversight committee.) Voters approved 66 of the bonds, including 65 of the 73 at the 55% level, according to a report by the Coalition for Adequate School Housing. In total, voters approved $4.2 billion in bonds for K-12 districts, and $2.2 billion for community college districts. Most analysts expect at least as many local school bonds to appear on November ballots as were on the March ballot. The surge in local funding means that more districts can raise the 50% local match for construction projects, said Duwayne Brooks, director of school facilities for the state Department of Education. The higher passage rate of local bonds also means fewer districts are seeking hardship status, for which the state pays 100% of construction costs, he said. "It makes everybody's job easier. It results in more schools being built," Brooks said of Proposition 39. "We have been underfunded for so many years. $6.7 billion in 1998 sounded like a lot. But the bonds that were put before voters before that time were really just miniscule. … And the kids just keep coming." Indeed, state officials expect to award the last $600 million of the $6.7 billion — an amount voters approved for K-12 schools with passage of Proposition 1A in 1998 — this summer. This November's state school bond would provide $4.8 billion simply to cover the backlog of approved but unfunded projects. The $13 billion state school bond earmarks $1.7 billion for "critically overcrowded" schools. This money is seen primarily as aid to the Los Angeles Unified School District, but other poor and urban districts could qualify. The remaining $6 billion will be awarded on the traditional first-come, first-served basis favored by many growing suburban districts (see CP&DR Public Development, June 2001). If voters reject the state bond, however, the whole system could fall apart. Vosburgh, of the Jarvis group, expects another voter revolt will occur at some point, especially as the same districts return to voters again and again with bond measures. "It may take a few years, but ultimately we think there is going to be enough anger out there that people with pursue an initiative to restore the two-thirds threshold," Vosburgh predicted. In the meantime, Vosburgh's group vows to file a standard ballot argument against any local 55% bond that does not have opposition. Contacts: State Sen. Jack O'Connell, (916) 445-5405. Duwayne Brooks, Department of Education, (916) 445-2144. Jeanette Justus, school facilities consultant, (949) 509-7761. Robert Corley, school facilities consultant, (805) 658-2995. Kris Vosburgh, Howard Jarvis Taxpayers Association, (213) 384-9656.

Apparently hoping to lure the San Diego Chargers northward, real estate magnate Philip Anschutz has proposed a football stadium in a newly created redevelopment project area near Staples Center in downtown Los Angeles. Mayor James Hahn has endorsed the proposal even as Los Angeles County prepared to sue the redevelopment action. The Los Angeles City Council approved the creation of an 879-acre redevelopment project area in the southern part of downtown in early May. The day after the council dropped a proposal to ban the use of redevelopment funds for a stadium, Anschutz and his company, AEG Entertainment, unveiled stadium plans and revealed that they had purchased much of the necessary land. The other major development expected in the redevelopment project area is a new hotel. The L.A. Convention Center — located adjacent to Staples — has languished in recent years, apparently because a convention-quality hotel does not exist nearby. Conventioneers must stay several blocks north and shuttle to the convention center. Supervisor Zev Yaroslavsky, a former Los Angeles city councilman, has led the effort by Los Angeles County to sue. He claimed that the project, which is expected to generate more than $2 billion in tax-increment funds over 45 years, is "taking money out of the mouths of poor people" and "defies common sense." A Little Hoover Commission report on the state's housing shortage recommends the state play a much larger role in ensuring housing gets built. The report notes that in 2000, California housing production fell short of need for the eleventh consecutive year. The report contains five major recommendations for the state: o Strengthen the housing element law and refocus it to ensure housing gets built, not simply planned. o Reform brownfields policies to encourage affordable housing development. o Draw more investors into the housing market by promoting partnerships, identifying new sources of capital and encouraging cities and counties to streamline permit processing and be flexible with development fees. o Provide more subsidies for unit construction and infrastructure. o Make subsidies easier to access, streamline reporting requirements and provide technical assistance. The report, "Rebuilding the Dream: Solving California's Affordable Housing Crisis," is available on the Little Hoover Commission website, www.lhc.ca.gov/lhc.html The City of Santa Rosa has adopted an affordable housing fee that will be imposed on market-rate units. The sliding scale ranges from 40-cents-per-square-foot for 850-square-foot units, to $7.35 a square foot for homes of 2,000 to 4,500 square feet. City officials hope the fee, besides raising money for affordable housing programs, will encourage development of smaller units that are more affordable to working families. A variety of housing, conservation and other land use programs were hit in the annual "May revise" of the state budget. Gov. Davis proposed reducing the Housing and Community Development budget by $27.9 million, including a $11.5 million cut in the Farmworker Housing Program. The proposed 2002-03 budget eliminates $39 million in subventions the state would pay local governments that participate in the Williamson Act farmland and open space protection program. And the governor's budget recommends eliminating the Williamson Act backfill permanently. The budget would force redevelopment agencies and multi-county special districts to participate in the Educational Revenue Augmentation Fund, which shifts property tax dollars from local governments to school districts. Under the May revise, redevelopment agencies would send about $75 million to schools, and multi-county special districts would lose about $45 million to schools. The State Water Resources Control Board would lose $6.2 million for its stormwater pollution control program. The federal Environmental Protection Agency has ordered California to end farmers' exemption from the federal Clean Air Act. The federal decision was issued to settle three lawsuits over Central Valley air pollution filed by the Center on Race, Poverty and the Environment and other environmental and health groups. The decision appears to mean that huge diesel engines that power water pumps must have emission control devices. Dust from huge livestock operations would have to be controlled better, as would the spraying of pesticides. Farmers contend that urbanization and Bay Area smog are to blame for the valley's air pollution, which ranks among the worst in the nation (see CP&DR Environment Watch, April 2002). If the state does not eliminate the exemption by October 2, the federal government will take over Clean Air Act enforcement on farms. The U.S. Fish & Wildlife Service issued a final designation of critical habitat for the San Bernardino kangaroo rat in late April. The agency designated 33,295 acres in western San Bernardino and Riverside counties as critical habitat for the k-rat, which has been central to Southern California endangered species battles since the 1980s. The decision appeared to satisfy neither environmentalists nor builders. The critical habitat designation is about 22,100 acres fewer than originally proposed, and biologists questioned the elimination of some areas the USF&WS said were not necessary for species survival. On other hand, about 90% of the critical habitat area is privately owned and much of it is subject to intense growth pressure. The City of Tustin and the Santa Ana Unified School District have settled a dispute over reuse of the Tustin Marine Corps base (see CP&DR Deals, October 2001). Under the agreement, the school district, which had wanted 100 acres for school sites, will get 22 acres for an elementary and middle school, plus $38 million to buy land for a high school elsewhere. If the designated 22 acres proves too polluted or the district opts not to use it, the city must pay the district another $22 million. The City of Milpitas has sued the City of San Jose for approving a 180-megawatt power plant in the Alviso neighborhood, near the border of the two cities. The lawsuit claims that the environmental impact report did not adequately address the visual and air quality impacts of the proposed 90-foot-tall combustion stacks and 60-foot-high cooling towers. Milpitas filed the suit in late March, about one month after San Jose approved Calpine's Los Esteros Critical Energy Facility. The California Energy Commission began conducting public hearings on the project in May. Wal-Mart announced in May it plans to open 40 "supercenters" across California during the next four to six years. At approximately 225,000 square feet, the supercenters are 50% to 100% larger than most existing Wal-Marts in the state. The supercenters include full grocery stores. Less than a week later after Wal-Mart's announcement, Albertson's said it would build 30 new grocery stores and remodel 82 others in Southern California, and the chain plans to build 96 new Sav-On drugstores and remodel 20 more. A City of Redondo Beach specific plan for redevelopment of 150 acres along and near the waterfront will be the subject of a voter referendum. Opponents of the "Heart of the City" plan formed in March because of the scale of development the plan would allow (see CP&DR Local Watch, January 2002). They quickly gathered enough signatures to force a vote during the November election. The nonprofit organization Greenbelt Alliance has released a new guidebook that provides details on 12 strategies for infill and mixed-used development. The report by Stephen Wheeler recommends updating zoning ordinances, revising parking requirements and preparing specific plans for neighborhoods. "Smart Infill: Creating More Livable Communities in the Bay Area" is available at http://www.greenbelt.org/resources/reports/index.html.

Opponents of a proposed expansion of a hazardous waste dump in rural Kern County took the proper steps to earn a hearing before a state-appointed appeals board, the Fifth District Court of Appeal has ruled in one of its rare published opinions. Residents of the unincorporated community of Buttonwillow wanted a state board to decide whether Safety-Kleen could expand its facility on the western edge of the San Joaquin Valley. The decision in this case is somewhat academic because Gov. Davis appointed a seven-member appeals panel last year, and the board has conducted 14 days of public hearings since then. A decision from the board is due this month. Still, the case is important because it is the first of its kind decided by a state appellate court. The unanimous three-judge panel attempted to sort through the apparently conflicting requirements that applicants must meet to get a hearing before a state board. In October 1991, Safety-Kleen (then known as Laidlaw Environmental Services, Inc.) applied to Kern County for a conditional use permit to modify and expand the Buttonwillow facility. Compounding the situation was the later disclosure that Safety-Kleen had accepted radioactive debris for some time. The legality of that activity is unclear. In December 1994, the Kern County Board of Supervisors approved the conditional use permit. The following month, an association of Buttonwillow residents called Padres Hacia una Vida Mejor (Parents for a Better Life) and eight individuals filed an appeal under the Tanner Act (Health and Safety Code § 25135 et seq. and § 25199 et seq.) with the governor's office. The Tanner Act governs the siting and operation of hazardous materials facilities. Project opponents acknowledged their petition was not ready for consideration because Safety-Kleen still needed state permits for toxic substances, air pollution and water quality. The California Environmental Protection Agency said the appeal was filed on time but could not be heard until all necessary state permits were approved. In June 1999, Safety-Kleen completed the regulatory gauntlet and received an "authority to construct" permit from the San Joaquin Valley Unified Air Pollution Control District. In July 1999, Padres informed the governor that the project had all its permits. The opponents requested the governor convene an administrative appeal board, but they received no response. They sent another letter in November 1999 and again heard nothing. So they sued the governor. After Padres filed the lawsuit, Cal EPA rejected the appeal because the opponents did not resubmit the original application. Kern Court Superior Court Judge Roger Randall ruled for the opponents and directed the governor to convene a "Tanner board." The governor would eventually do just that, but Kern County and Safety-Kleen appealed the trial court's decision. They argued that the project opponents did not meet the requirements of the administrative appeal process. The Fifth District called the statutory process a "Catch-22" and upheld the lower court ruling. The opponents met the first mandatory step of the process when they filed an appeal within 30 days of the Board of Supervisors' decision. The second step was satisfied when the governor's office determined within five working days whether all state permits had been obtained, the court ruled. At this point, the story of the process becomes confusing. The county and Safety-Kleen argue that the third step was for Padres to resubmit its application after all state agency permits were granted. The original application was incomplete because, at the time Padres filed the application, the project lacked state permits, the county and Safety-Kleen argued. But the opponents contended that the next step was for the governor to convene the Tanner board. The court sided with Padres. If an application must show that all state permits have been granted, then it could not be filed within the 30-day time limit from the county's decision — a classic Catch-22, the court noted. To get around this paradox, Cal EPA retained the opponents' original application and required them to resubmit their appeal once all state permits were awarded. However, Cal EPA never notified opponents that resubmission was required. Furthermore, the court ruled, the Tanner Act does not mandate this resubmittal, nor was it a valid administrative regulation. " ubdivision (e) of § 25199.9 clearly imposes a mandatory obligation on the Governor or his designee to convene an appeal board if all state agency permits have been obtained by the proponent of the project," Justice James Ardaiz wrote for the court. "We hold that the third step mandated by the Tanner Act under the facts of this case was for the Governor to convene a Tanner Board after the project obtained all required state agency permits." The court rejected arguments from the county and Safety-Kleen that indefinite delays would result if the court did not enforce appeal deadlines. "A delay will only arise if the Governor or his designee do not perform their obligation of convening a Tanner Board once all the permits have been obtained," the court ruled. Finally, the court rejected arguments that the opponents waived their right to challenge the requirement to resubmit the original application. The January 1995 letter from Cal EPA "is ambiguous and does not state that Padres's timely filed appeal will be rejected if it is not ‘resubmitted' within a specified amount of time after the last state agency permit is obtained by the project," Ardaiz wrote. The Case: Padres Hacia una Vida Mejor v. Davis, Nos. F036205, F037576, F037832, F037828, 02 C.D.O.S. 2361. Filed March 12, 2002. The Lawyers: For Padres: Luke Cole, (415) 495-8990. For Kern County: Stephen Schuett, county counsel's office, (661) 868-3837. For Safety-Kleen: J. Martin Robertson, Gray, Cary, Ware & Freidenrich, (415) 836-2537.