The owner of appropriative water rights to a creek cannot exercise those rights in violation of state regulations intended to protect fish and wildlife, the Third District Court of Appeal has decided. The court ruled that the owner of appropriative water rights to Big Creek in Trinity County still had to notify the Department of Fish & Game (DFG) before making substantial alterations to the streambed, as required by Fish and Game Code § 1603. The owner argued that his water right, essentially, made him free of regulation and that DFG's attempt to intervene in his in-stream activities amounted to a taking. The court, however, rejected that argument and said the takings issue was not ripe. In 1971, the Murrison family purchased Big Creek Ranch, a 19th century homestead. The family claimed the ranch came with a pre-1914 right to flows from Big Creek. (1914 was the first year the state allocated water rights. Prior to that, the system was essentially first-come, first-served.) The state entered into one-year agreements allowing the Murrisons to alter the streambed in 1989 and 1990 to divert water into their irrigation ditch. In 1998, a state game warden inspected the site and found that the landowner, Scott Edgar Murrison, had blocked nearly the entire flow of the creek with rocks. In April 1999, the state filed a complaint alleging that Murrison had violated Fish and Game Code § 1603 and Business and Professions Code § 17200, which requires the court to impose a fine for unlawful business practices. At trial, Murrison argued that his water rights were not subject to Fish and Game Code and that, anyway, his work fell within an exemption for maintenance of water works. Shasta County Superior Court Judge Gregory Caskey, sitting by assignment in Trinity County, found Murrison had violated the law and fined him $10,000 under the Fish and Game Code, and $1,500 under the Business and Professions Code. Judge Caskey also issued an injunction allowing Murrison to operate his headgate but preventing him from working in Big Creek. Murrison appealed, but the Third District upheld the trial court. On appeal, there was no dispute that Murrison had substantially altered the streambed. Instead, Murrison contended that because the State Water Resources Control Board does not allocate or distribute water rights obtained before 1914, the Fish and Game Code did not apply. He cited Article X, Section 2 of the California Constitution, which bars regulations that deprive any water appropriator of the water to which he is entitled. The court found that DFG was not trying to take Murrison's water. Rather, the agency was only trying to enforce a provision that required anyone to notify DFG of plans to alter a streambed. Murrison had failed to do so. "The requirement in Fish and Game Code § 1603 that Murrison notify DFG of his intent to substantially alter or divert Big Creek furthers the state's substantial interest in the protection of the state's fish and wildlife," Justice Ronald Robie wrote for the unanimous three-judge panel. "This statutory requirement is inherent in the state's sovereign power to protect its wildlife, and Murrison's water rights are subject to these powers. A water right, whether it predates or postdates 1914, is not exempt from reasonable regulation. Just as a real property owner does not have an unfettered right to develop property in any manner he or she sees fit, an owner of a water right may be similarly restricted." The only difference between a pre-1914 water right and post-1914 water right is that the latter "must go through the administrative process before" the State Water Resources Control Board, the court held, citing Fullerton v. State Water Resources Control Bd., (1979) 90 Cal.App.3d 590. Moreover, the statute Murrison violated did not affect his water right, the court ruled. The law only required Murrison to notify DFG before obstructing the creek. And because DFG never attempted the regulate Murrison's water right, his takings claim was not ripe, the court ruled. In fact, Murrison may have pressed his case too far, as the appellate court questioned whether his water right even existed. "While he traced the origins of his claimed right, he failed to present any testimony about the nature and quantity of the right at any time, including the period since the rights were created to the date of the trial," Robie wrote. Yet appropriative water rights are limited to the amount of water that can be, and has been, put to beneficial use. "Murrison has failed to establish a prima facie pre-1914 appropriative right," the court concluded. The court upheld the fines and the injunction, saying the Murrisons "have often refused to notify DFG of their activities in the streambed, leaving them to the discovery of game wardens." The Case: People v. Murrison, No. C038627, 02 C.D.O.S. 7633, 2002 DJDAR 9579. Filed August 20, 2002. The Lawyers: For Murrison: Steven Enochian, Moss & Enochian, (530) 225-8990. For The People: Tara Mueller, deputy attorney general, (510) 622-2136.

Gov. Gray Davis completed the 2001-02 legislative session by signing several bills backed by affordable housing advocates, a coastal access bill opposed by some of his friends, and a bill that takes a modest step toward more coordinated state planning. Unlike past years, the governor vetoed no high-profile land use bills. But he did reject three bills that would have added requirements to general plans, and he vetoed a last-minute bill aimed at protecting American Indian sites from development. Davis's actions brought to a close a legislative session that produced few major pieces of land use legislation other than large bonds, two of which (housing and schools) are on the November ballot. Lawmakers again favored bonds at the end of the session, when they approved a $9.9 billion bond to fund the first phase of a proposed high-speed rail system. Davis — who mocked high-speed rail as "Buck Rogers technology" in 1999 — signed the bill (SB 1856, Costa) and voters will decide on the bond in March 2004. As during his first three years in office, Davis was difficult to predict once bills hit his desk — partly because administration officials were reluctant to take a public position on a bill that they were not sponsoring. The two biggest surprises this year might have been Davis's signing of SB 1962 (Polanco) and AB 857 (Wiggins). The Polanco bill requires the State Coastal Conservancy to accept outstanding offers to dedicate coastal access easements across private land within 90 days of the offer's expiration if no local government or nonprofit organization has accepted the easement. A number of wealthy coastal landowners, including some large Democratic donors, lobbied Davis to veto the measure. However, the bill took on social overtones as it made its way through the process, making a veto more politically challenging. After the governor signed the bill, his office issued a press release noting the measure will "provide equal access to the coast for all the people of California, including low income and minority communities." The Wiggins bill requires state agencies to adopt consistent planning and capital spending priorities based on three criteria: promotion of infill development, protection of agricultural and environmental resources, and encouragement of efficient development patterns. Development and real estate interests opposed AB 857, but they reportedly did not press hard for a veto. Davis recognized the opposition in his signing message: "To allay concerns about the bill's balanced implementation, I am directing OPR to implement the bill's three planning priorities and their effect on the infrastructure plan in a fair and equitable manner and to do so within existing resources. I ask that OPR, with the assistance of all state agencies, prepare the 2003 Environmental Goals and Policy Report and to examine conflicts, which may exist between and within state agencies and their policies and programs." The Polanco and Wiggins bills were two of the biggest priories of the Sierra Club, said Bill Allayaud, who heads the organization's Sacramento lobbying effort. Urban growth, congestion and pollution are issues of concern not just for environmentalists, Allayaud said, pointing to the importance of AB 857. "Everyone is wondering if the state is going to do something when the local governments can't, or refuse, to do something about it," he said. The governor, however, vetoed another one of the Sierra Club's high-priority bills, SB 1828 (Burton). The bill would have expanded the definition of "sacred" American Indian sites, required additional consultation with Indian tribes if a development would impact a sacred site, and set a higher bar for allowing such development. Senate President Pro Tem John Burton watered down the bill at the end of the session. But opponents remained dissatisfied, and they complained that the bill gave Indians too much power over development proposals and that tribes with casinos would use the measure to thwart competitors. In his veto message, Davis listed a host of objections: the list of sacred sites by the Native American Heritage Commission is no good; the location of sites could be kept secret from landowners until late in the planning process; and Indians would gain undue influence over the environmental review process. Still, Davis said he would direct the Resources Agency secretary and the director of the Office of Planning and Research to work with SB 1828 proponents on a new bill to protect sacred sites next year. The Burton bill began as a way to block Glamis Gold Ltd. from developing an open pit mine on federal land in Imperial County that the Quechan tribe considers sacred (see CP&DR Environment Watch, May 2002). Language intended to block the Glamis mine got put into SB 483 (Sher), which Davis signed. However, it was unclear whether SB 483 would be effective without SB 1828. Also failing to pass muster were three bills dealing with general plans. The rejected bills were AB 3057 (Matthews), which would have recast the open space element as the "agricultural and open space element" and required general plans to promote long-term viability of agriculture; AB 2954 (Simitian), which would have required updated land use elements to address the distribution of child-care facilities; and AB 2175 (Daucher), which would have directed OPR to include "human service matters" in general plan guidelines. In his veto messages, Davis cited cost of the three bills at a time when the state has a large deficit. Both the agriculture and the childcare bills would have imposed state mandates on local governments that the state was obligated to pay for, the governor said. The OPR guidelines revisions called for by AB 2175 would have cost an unbudgeted $100,000, the governor said. Davis signed two housing bills that most planners and local governments vehemently opposed as pre-emptions of local authority (see CP&DR, October 2002). AB 1866 (Wright) forces cities and counties to grant nearly any request for an affordable housing density bonus and makes permits for second units a ministerial items. AB 2292 (Dutra) ensures no net loss of zoned housing density that a local government relies on for housing element certification. The governor signed both bills without comment. He also signed a bill that attempts to at least partially resolve the issue of construction defect litigation, which some people blame for depressing the condominium construction market (see CP&DR, August 2002). The bill (SB 800, Burton) sets some standards for construction, gives builders the right to correct alleged deficiencies before a consumer sues, and still gives consumers the right to sue if problems remain. The California Building Industry Association backed all of the housing bills and hailed the governor's signature on SB 800 as "a historic day." The association went so far as to name Burton one of its lawmakers of the year. On the transportation front, Davis signed a bill that allows the Orange County Transportation Authority to purchase 10 miles of toll lanes on Highway 91, one of the state's most congested freeways. Earlier this year, OCTA officials announced they had reached a tentative agreement with the toll lanes' owner, California Private Transportation Co., to buy the roadway for $207 million. The purchase would end the private company's ability to block improvements to the freeway, which provides a vital link between Inland Empire houses and job sites in Orange and Los Angeles counties. The governor also signed SB 1703, a measure that consolidates San Diego regional transportation planning and transit project delivery in the hands of the San Diego Association of Governments (see CP&DR, July 2002). Under the law, the North County Transit District and the Metropolitan Transit Development Board will continue to operate transit systems, but the agencies will no longer be responsible for planning. The measure does not set up a new, elected planning board, a concept backed by the San Diego County Board of Supervisors. "This new law will help cut red tape, save taxpayers money, and improve the efficiency of transportation planning in San Diego," Gov. Davis promised. Davis vetoed a bill (SB 1799 Poochigian) that would have doubled Central Valley representation from one to two members on the High-Speed Rail Authority. The rail line is proposed to run, in part, from Bakersfield to Sacramento. Davis said he did not want additional constraints on his appointment choices. The veto angered Central Valley leaders, many of whom are Republicans.

Among the articles of faith that urban planners hold as self-evident is this: Land use planning is a local endeavor. Many planners even espouse that a town's general plan can influence the "quality of life" through land use regulation. This theory has been at the crux of New Urbanist arguments for revamping development codes. But a funny thing happened on the way to urban design perfection: American-style corporate capitalism intruded. The plethora of the chain coffee houses, stores, and restaurants that grab up space in the neo-town centers — the very projects that collect awards at planning conferences — are at risk of turning these developments into Everyplace. The result is not a new type of community at all, but simply a new version of a shopping mall, ultimately dominated by the same corporations that controlled the old ones. And while the vast majority of California municipalities are still thrilled when Starbucks takes up residence in their downtowns or in their revamped suburban centers, there is a small but enterprising posse of cities that are heading in a different direction. These California towns — let's call them anti-formula towns — have taken community development discussions to the next level, beyond discussions of facade treatment and sales tax revenues. These towns have the vision of remaining a place that cannot be replicated. They safeguard a community where retailers and hotel owners — like residents — are unique and specific to the place, where the geography is Somewhere. The anti-formula towns have acted to stop the halt of the chain businesses by ordinance – making good on the promise of local land use control tools. Commonly, these are called "Formula Business Ordinances," and they define such establishments by their common signage, use of uniforms, and corporate doctrines. The tiny Napa Valley town of Calistoga has the most far-reaching of these. Its original version was passed in 1995 and was updated two years ago. "In 1995," said Associate Planner Jo Noble, "there were rumors of a pending application by a fast food chain. The Planning Commission asked staff to explore how such businesses could be restricted from locating here. We do well with the mom-and-pop businesses, and tourists come here for that reason — to escape the Burger Kings and Carl's Jrs." Calistoga moved quickly when the specter of the chain business presented itself. "The commission was very active in crafting the actual language. It is targeted to protect both restaurants and lodging establishments," Noble explained. Since the city took action, countless communities have inquired about Calistoga's ordinance, and it is widely viewed as a model. The City of Arcata provided the most recent stab at formula businesses, although that North Coast city's ordinance restricts only restaurants. "There are nine formula restaurants in Arcata, and the ordinance does not permit any more to open here" said Mike Mullen, Arcata's planning program manager. Adopted in July, the ordinance allows a new formula restaurant to come to town, but only if an existing one leaves. What makes Arcata's ordinance interesting is its genesis, which appears to be rooted into the anti-globalization movement. In 2000, Arcata, home of Humboldt State University, amended its Municipal Code to create a committee on "Democracy and Corporations." The committee is charged, among other things, with presenting options to the City Council on how Arcata can "control pattern restaurants from moving into downtown areas" and "to cooperate with other communities that are working on socially responsible investing." Mullen sites the work of the New Rules Project, a Minneapolis-based advocacy non-profit, as the philosophical anchor of the new "Formula Restaurant Limitation Ordinance." (see http://www.newrules.org/). At a practical level, the ordinance protects Arcata's eating and drinking establishments, which form the most important sector of the City's economy, Mullen said. During the five public hearings leading up to the adoption, speakers generally favored the protective ordinance by a 3 to 1 ratio. So far, no legal challenges have come forward in either Arcata or Calistoga. Will the anti-globalism movement sweep the rest of California via formula business ordinances? Not likely. No other Humboldt County cities are expected to follow Arcata's lead, Mullen said. San Francisco's Jim Davis, chief planner in that city's Neighborhood Planning unit says that numerous attempts to pass similar laws in the progressive metropolis have failed. The best that San Francisco has been able to get on the books is a 1999 requirement for a conditional use permit process specific to coffeehouses in North Beach, a measure that seems to target Starbucks. This provocative foray into land use rule-making can be seen as a phenomenon that can be expected in communities that meet a unique set of criteria: a tourism-based economy, relatively small, and a progressive-minded City Hall. Nevertheless, these communities have shown that land use tools can be used effectively to tackle the problem of bland, unimaginative sameness in community character. The success of these cities should give faith to planners that local control is possible. Stephen Svete, AICP, is president of Rincon Consultants, Inc., a Ventura-based consulting firm.

The California Infrastructure and Economic Development Bank has loaned nearly $180 million to local governments since June 2000, but whether the loans are promoting the type of "smart growth" that backers touted a few years ago is uncertain. Thus far, no applicant has been rejected based on land use deficiencies of a project. Rather, the money has been available for a variety of standard public works projects — suburban water and sewer lines and treatment plants, storm drainage for new business parks, streets in redevelopment zones. The biggest cheerleader of the smart growth approach to infrastructure funding, state Treasurer Phil Angelides, conceded the program is not perfect. But he contended it is having the intended effect. "We are seeing a lot of projects that are in the urban context, projects in existing neighborhoods," Angelides continued. "I think it's markedly different from the old concept of infrastructure being a two-lane road widened to a four-lane road to serve a factory no matter where it is." Legislation approved in 1994 created the Infrastructure and Economic Development Bank, commonly called the I-Bank. Since its inception, the I-Bank has issued $8.2 billion worth of revenue bonds, mostly for manufacturers and nonprofit corporations that use the money for job growth. The businesses and nonprofits are responsible for paying off the bonds. However, the Infrastructure State Revolving Fund (ISRF) Program, which provides local governments with loans for public facilities, stalled for lack of money under the Wilson administration. The program got rolling in 1999, and as of September the ISRF program had made 35 loans totaling $179 million. Two years ago, the program had $475 million to loan, but the Davis administration took back $277 million because of the budget deficit. With money starting to run short, I-Bank officials plan to raise funds by issuing bonds secured by loan repayments. At the urging of Angelides (one of three members of the ISRF board), the I-Bank adopted criteria that include renewing and maintaining existing developed areas, developing infill sites, and protecting the environment and natural resources. Applicants also earn points for having a certified housing element. However, a project's economic impact, especially in a distressed area, can trump any land use considerations. Late last year, the State Auditor dinged the Technology, Trade and Commerce Agency, which runs the I-Bank, for not adequately quantifying new jobs that resulted from state programs such as the ISRF. There has been no official study of whether the ISRF is successfully promoting smart growth. I-Bank Executive Director Stan Hazelroth said the agency is working on better ways to measure program effectiveness. "We're working on an update of the strategic plan," Hazelroth said. The difficulty, he added, is that the agency "has all these things that are not necessarily related, other than they are all infrastructure projects." Indeed, the projects funded by the ISRF program run the gamut, so comparing one with another is difficult. Most local governments that have received ISRF loans use the money as only one part of a multifaceted financing package, which is what I-Bank officials want. For example, in the City of Brawley, near the Mexican border, officials used a federal grant, city funds and a $2 million ISRF loan to pay for a $13 million expansion of the city's sewer plant. "That was the only way we could afford it," Brawley City Manager Jerry Santillan said. "In an impoverished community, we can't afford to raise our rates." The city pursued the larger sewer plant, and an earlier project to expand water treatment facilities, to serve a large new meat packing plant and spin-off businesses. Since the packing plant opened, unemployment has dropped from nearly 25% to about 14%, according to the city manager. Santillan said I-Bank officials quickly approved the city's loan application, but they were slow to put together loan documents and complete the process. For Brawley, the ISRF loan was strictly about economic growth. Angelides said smart growth criteria has been worked into a number of state funding programs. In highly competitive cases, such as the Low-Income Housing Tax Credit program, there has been a "fundamental change" in the types of projects proposed, he said. That change has been slower to appear in programs like the ISRF program, where administrators work hard to drum up interest from local governments. "Changing priorities is a lengthy process that takes time because it goes to the way people think," Angelides said. Contacts: State Treasurer Phil Angelides, (916) 653-2995. Stan Hazelroth, Infrastructure and Economic Development Bank, (916) 322-1399. Jerry Santillan, City of Brawley, (760) 344-9111. State Technology, Trade & Commerce Agency website: www.commerce.ca.gov

The California Coastal Commission has adopted a Local Coastal Plan (LCP) for the City of Malibu, despite objections from city officials. The commission voted 10-1 for the plan. Litigation is likely. It is only the second time the commission has imposed an LCP on a local jurisdiction. Two years ago, the state Legislature gave the commission until September 15, 2002 to adopt a plan for Malibu, and the commission met the deadline with two days to spare. Malibu is one many local governments that never adopted an plan to guide land use in the coastal zone, even though the Coastal Act required such plans to be completed more than 20 years ago. Because there has been no LCP for Malibu, every project has required Coastal Commission review, and the panel often spends a quarter of its monthly meeting dealing only with small projects in that one city. Approximately 150 people testified during a two-day public hearing in September. Rock star Don Henley and environmentalists spoke in favor of the plan, while property owners complained that the plan would block even minor home remodeling projects. The plan designates about half of the city as "environmentally sensitive habitat area," and limits new development in an ESHA to 25% of a parcel. The plan also calls for beach access points every 1,000 feet for the length of Malibu's 27 miles of coastline. But the plan allows development of the proposed civic center project, which includes a hotel, offices, stores, a public plaza and park. That project remains subject to voter approval, as required by a 2000 ballot measure. A Southern California developer lost another round in a legal and political fight against a competitor. Los Angeles County Superior Court Judge David Yaffe upheld the City of El Segundo's environmental impact report for a 2.1 million-square-foot office and retail development near Los Angeles International Airport. Thomas Properties Group is behind the project, but Kilroy Realty, whose headquarters is nearby, has unsuccessfully fought the project (see CP&DR Local Watch, May 2002). During the last four months, El Segundo voters have rejected a Kilroy-sponsored referendum on the project, and Yaffe has upheld both the city's processing of the project, and now the EIR. Ventura County Superior Court Judge Henry Walsh has refused to block a vote on a ballot initiative that would allow development of 1,390 housing units on 730 acres of hillside pasture. Opponents of the "Open 80 plan" — so named because 80% of the 3,800-acre site would be designated open space — argued that the state constitution bars initiatives that benefit a corporation. But Walsh ruled the constitutional provision did not apply to a limited liability partnership such as project proponent Lloyd Management Corporation. A 2001 ballot initiative aimed at blocking expansion of Burbank airport has been struck down. The initiative prohibited any construction at the airport unless a 7 a.m. to 10 p.m. curfew and a 10% cap on future growth were imposed. The city sued over the initiative, arguing that the measure conflicted with state law and environmental regulations. Los Angeles County Judge Richard Montes agreed with the city and called the initiative "unconstitutionally vague." For the third time, Kern County supervisors have approved two proposed dairies for a combined 28,000 cows southwest of Bakersfield. The fate of the controversial Borba dairies project is now in the hands of a Superior Court judge, who has twice before rejected the county's environmental impact report. Kern County is also negotiating with dairy industry representatives for funding of a program EIR, which the county hopes to use as a basis for allowing up to 35 additional "by-right" dairies, Planning Director Ted James said. To the north, Kings County officials this summer adopted a dairy element of the general plan and a program EIR. A proposal that the Bush administration says would make forests more fire resistant has sparked its own firestorm of controversy as it makes its way through Congress. The "Healthy Forest" initiative seeks to speed environmental review of forest-thinning projects, eliminates citizens' ability to appeal U.S. Forest Service decisions on some logging and brush-thinning, and prevents judges from issuing temporary injunctions to stop forest thinning projects. During a speech in Oregon in late August, President Bush said, "We have a problem with the regulatory body there in Washington. I mean, there's so many regulations, and so much red tape, that it takes a little bit of effort to ball up the efforts to make the forests healthy. And plus, there's just too many lawsuits, just endless litigation." Environmentalists are vigorously fighting the proposal, calling it a giveaway to timber companies. U.S. Sen. Dianne Feinstein has been working on a compromise. Major environmental groups have come out in opposition to a $1.6 billion bond to repair the Hetch Hetchy water system that serves about 30 Bay Area cities (see CP&DR Public Development, April 2002). San Francisco owns and operates the system, and voters there will decide on the bond. Groups including Environmental Defense, the Planning and Conservation League, and local Sierra Club chapters — all of whom wield great influence in The City — oppose Proposition A because the bond would not provide money for a study of restoring Yosemite National Park's Hetch Hetchy Valley, which Congress allowed San Francisco to dam during the early 20th century. The City of San Jose has doubled the size of its housing program, which was already the state's largest. In September, city officials approved a five-year plan to spend $2.1 billion in city, state, federal and private funds, with about one quarter of the money coming from the city and its redevelopment agency. The money is intended to build 6,000 additional housing units, acquire and renovate 2,000 units, provide rehabilitation loans for 7,200 units, and offer first-time-buyer loans to 500 school teachers. San Jose has established a task force to create a new growth plan for the city's rural southern end where the city earlier approved a controversial 6.6-million-square-foot campus for Cisco Systems (see CP&DR In Brief, November 2001, CP&DR, June 2000). Cisco has since put the project on hold. Mayor Ron Gonzales and the City Council appointed the Coyote Valley Task Force to draft a plan that permits at least 50,000 jobs and 25,000 homes, and maintains a greenbelt between San Jose and Morgan Hill. Environmentalists and affordable housing advocates, however, said the 20-member panel was tilted toward development interests. Two separate lawsuits have been filed over Sacramento County's approval of the 6,000-acre Sunrise-Douglas Community Plan and a subset of that plan, the 10,000-unit Sunridge Specific Plan (see CP&DR Local Watch, August 2002). A lawsuit by Legal Services of Northern California and the Western Center on Law and Poverty claims the county broke a 1996 agreement to earmark about 1,000 acres for affordable housing. Meanwhile, the Environmental Council of Sacramento has challenged the project EIR, arguing that it did not adequately address the impact of extensive groundwater pumping on the Cosumnes River. City officials from Woodland and Davis have signed a nonbinding agreement that prohibits either city from annexing territory in a two-mile-wide buffer of farmland between the two Yolo County cities. "I like to think of it as a friendly separation," Davis Mayor Susie Boyd said at the ceremonial signing in early September. The El Dorado Hills Incorporation Committee has sued the El Dorado County Local Agency Formation Commission. Incorporation proponents argue that the LAFCO violated their civil rights by demanding up front nearly a quarter of a million dollars for application process and an EIR. Yuba County has begun processing an application for what would be a new town in the oak savanna east of Marysville, near Beale Air Force Base. The 2,900-acre Yuba Highlands project would have 5,100 residential units and roughly 1 million square feet of retail and industrial space. Gallelli Real Estate of Roseville is the project applicant. The area has been the subject of large-scale development proposals in the past, and a community plan for the area calls for 9,000 housing units, but little has been developed so far.

Food substitution is among the household arts that make daily living possible. One cup of buttermilk, for example, can be substituted with a tablespoon of lemon juice or vinegar plus enough whole milk to make one cup. Or two cups of tomato sauce can be replaced with three-quarters cup of tomato paste, plus one cup of water. A few substitutions do not spoil the dish. They may even improve the taste. At a certain point, however, the cook can substitute no further, or the dish will be spoiled. At very least, the dish will end up very differently from the one the cook originally set out to make. It is a matter of opinion whether downtown Pleasant Hill is a dish that has been spoiled. What is indisputable is that the final product, from a site-planning perspective, looks very different than the original site plan. One might ask why we should care. This five-block area in little Pleasant Hill — a city 30 miles east of San Francisco with a population of 32,000 — accomplishes most of its original aims: The city now has a readily identifiable center, and provides a walkable downtown area where one did not exist before. Still, something is troubling here. The final, built version of downtown Pleasant Hill has lost much of the coherence, and possibly the charm, that was promised in the original site plan. A clear arrangement of streets and open spaces has been replaced by something that looks very much like a conventional power center. The story of downtown Pleasant Hill, in short, is an object lesson in the depredations that developers can inflict on urban design if not constrained by firm guidelines. The experience of the Bay Area city might provide an argument against the time-honored practice of cities relying wholly on retail developers to design pedestrian-oriented downtowns. If not a masterpiece, the original site plan of downtown Pleasant Hill — designed, in succession, by Heller Leake and Field Paoli — was intriguing. Much, perhaps too much, was going on in this plan. It incorporated in a very small area some of the fanciest moves in city planning. Small shops are arranged along a crescent-shaped street. Influenced by Hollywood set design, curving streets provide the intriguing illusion of an endless vista, with something new always emerging around the corner. Another powerful device is a diagonal street, which creates a visual connection between the shopping center and City Hall to the northeast. Two plazas — one in the center of the shopping area and one directly in front of City Hall — are oriented along this diagonal axis. The plan can be faulted for striving for spectacular effects rather than focusing on the already difficult task of creating a set of attractive, coherent streets. Notwithstanding, the original site plan was clear in its intent: The quality of the pedestrian experience was paramount, and that buildings should be molded around open spaces, rather than the opposite. Were the developers and the money-men the culprits? It is hard to say. A presentation by the city's redevelopment director, Rich Bottarini, outlines the general requirements of commercial development. There are few surprises here. The developers need to realize an "acceptable" return on investment. To do so, they need to lease space to a certain number of "national credit" tenants. The developer and retailers both need flexibility — meaning that the city's plans must be altered to meet the inflexible needs of retailers for both architecture and signage. Naturally, retailers want "an abundance of convenient parking," while both retailers and lenders want a shopping area to offer a mix of local and national tenants. As in any large commercial project, city officials compromised with the developers. Architecture is part of the branding of national credit tenants, so the site plan must bend to accommodate them. In Pleasant Hill, the developer and major tenants substituted their own designs for the city's own site plan. There is nothing wrong with this, as long as the integrity of the site plan was preserved. But without firm planning principals, the recipe was quickly adulterated. Tenants demand abundant parking, so the site plan opened up hundreds of spaces of additional surface parking. But there was plentiful surface parking in the original scheme. So the final, built version of downtown Pleasant Hill offers the familiar sight of buildings floating on a sea of asphalt, like any other suburban shopping center. Here, "accidental," undesigned open space — that is, the space between big box retail buildings — competes with the designed plazas. The crescent street fares little better. For reasons I do not understand, the promise of curving, Piccadilly Circus-type buildings along the crescent become a series of irregularly shaped lumps that do not deliver the charming novelty of the curved façade. And the central plaza that was a centerpiece of the original site plan has been eaten away by irregularly shaped retail buildings. Compromise does not in itself savage good planning. Planning thrives on a certain amount of irregularity, even some dissonance, as long as there is a well-established harmony from which we make a brief departure. In downtown Pleasant Hill, however, there is neither harmony nor dissonance. There is just retail. A pedestrian-oriented plan has turned into an automobile-oriented plan. The use of structured parking would have prevented the sprawling parking lots, and helped preserve the continuity of the "walk streets." True, retailers often ask for surface parking in suburban areas, but the same retailers have learned to live with structured parking in other cities, as long as customers show up. More to the point, the city itself should have built the streets and the plazas, and subsequently invited in the retail developers. There are ingredients — streets and open space — that cannot be sacrificed in urban design. But in downtown Pleasant Hill, too many cooks have substituted their own agenda in place of coherent urbanism. In doing so, they have spoiled the broth.

A school district may charge only limited mitigation fees on a redevelopment project in which new houses replace demolished residential units, the Fourth District Court of Appeal has concluded. The court held that the Tustin Unified School District could levy fees only on the difference in square footage between old apartments and the new houses that replaced the apartments. The school district appeared to lose the case because its fee study did not satisfy the court. "The fee study did not address the burden created by redevelopment construction, as opposed to new residential construction that did not displace existing housing, and thus did not show the requisite connection, or ‘nexus,' between the amount of the fee imposed and the burden created," Justice Eileen Moore wrote for the unanimous three-judge panel. The redevelopment project in question was the demolition of 56 apartments and construction of 38 single-family homes by Warmington Old Town Associates in Tustin. The school district levied its usual mitigation fee of $1.93 per square foot on the new houses, for a total fee of $122,080. Warmington said it should get credit for the demolished square footage and paid the fee in protest. Most school districts grant a square-footage credit for replacement housing, although the Education Code is unclear. When Tustin Unified refused to offset the full fee, Warmington filed a lawsuit. The developer argued that it should get credit for the 56 units it demolished, and that the district's fee study did not show a nexus between the new homes and student generation. Orange County Superior Court Judge John Woolley ruled that the school district was entitled only to the difference between the new construction (63,254 square feet) and the demolished units (47,500 square feet). The court ordered the district to refund $92,640 plus 10% annual interest. The Fourth District upheld the decision, but on a different basis than Woolley used. The trial court judge found that Education Code § 17620, subdivision (a)(1), distinguished between "new construction" and additions of more than 500 square feet. Woolley ruled that the Warmington project amounted to an addition, and he allowed the fee only for the difference between the old buildings and the new buildings, minus 500 square feet. The appellate panel held that the statute Woolley cited "was intended to refer to residential remodeling projects, not to total demolition and replacement." Instead, the court found that the school district had run afoul of the Mitigation Fee Act (Government Code § 66000 et seq.), which required the district to show a reasonable relationship between the impact of the project and the fee. The school district argued that its 1998 fee study provided adequate basis to levy the fee. But the court said the study fell short in the area of redevelopment projects. A school fee study must contain three elements, the court held, citing Shapell Industries, Inc. v. Governing Board, (1991) 1 Cal.App.4th 218 (see CP&DR Legal Digest, January 1992). The study must forecast the total amount of new housing expected to be built, it must determine the approximate number of students the housing will generate, and it must estimate the cost of providing school facilities to the additional students. Tustin Unified's study, "failed to meet the first and second prongs of the Shapell test," the court ruled. "It failed to meet the first prong to the extent that the projection of the total amount of new housing failed to take into consideration the demolition of housing units for redevelopment," Justice Moore wrote. "Similarly, it failed to meet the second prong because the fee study did not approximate the number of students to be generated by redevelopment (i.e., the difference between the number of students that previously inhabited redevelopment sites and the number of students projected to subsequently inhabit those sites)." The school district argued that it was too late to challenge the fee study, but the court disagreed, saying the district's compliance with the Mitigation Fee Act "was squarely before the court." The court upheld the entire refund, but lowered the interest rate to the 8% rate prescribed by Government Code § 66020, subdivision (e). The Case: Warmington Old Town Associates v. Tustin Unified School District, No. 02 C.D.O.S. 8013, 2002 DJDAR 10022. Filed August 30, 2002. The Lawyers: For Warmington: Don Fisher, Palmieri, Tyler, Wiener & Wilhelm, (949) 851-9400. For Tustin Unified: Wendy Wiles, Bowie, Arneson, Wiles & Giannone, (949) 851-1300.

A City of Cotati lawsuit against mobile home park owners who challenged the city's rent control ordinance was not a strategic lawsuit against public participation (SLAPP), the state Supreme Court has ruled unanimously. The city filed a validation lawsuit against Gene Cashman and other mobile home park owners in state court after the park owners sued the city in federal court over the rent control law. The park owners contended that the city's lawsuit was a SLAPP, and Sonoma County Superior Court Judge Laurence Sawyer agreed. But an appellate court overturned the decision, and the state Supreme Court upheld the appellate court's ruling. The state high court ruled that an actual controversy — the legitimacy of a rent control ordinance — was the basis for the city's lawsuit in state court. The city's lawsuit did not arise from the park owners' federal lawsuit, so the city's lawsuit was not subject to the anti-SLAPP statute (Code of Civil Procedure § 425.16). In 1998, the city adopted a mobile home rent stabilization ordinance to maintain the affordability of housing. Shortly thereafter, mobile home park owners sued the city in federal court, claiming the ordinance amounted to an uncompensated regulatory taking. The city then filed a lawsuit in state court seeking a declaration that the ordinance and the city's application of it to individual property owners were constitutional. The park owners called the city's lawsuit a SLAPP — an illegal lawsuit that project proponents sometimes wield in hopes of shutting down their opponents. The city conceded it filed the lawsuit because it saw state court as a more favorable venue, and that it intended to ask the federal court to abstain while the other lawsuit proceeded. But the city also argued that a valid controversy existed for the state court to decide. Judge Sawyer sided with the park owners, saying the city's lawsuit arose from the property owners' exercising their right to petition the government. The First District Court of Appeal reversed the decision and remanded the case back to the trial court in July 2001. The appellate panel ruled that Cotati's lawsuit sought to resolve the same constitutional issues that mobile home park owners had raised themselves. The court also held that Cotati's lawsuit served the public interest and did not result in additional expense or inconvenience for the park owners. At the state Supreme Court, the definition of the term "arising from" became the turning point. In the two-part test for determining whether a lawsuit is a SLAPP, a court must first decide whether the lawsuit is one "arising from" protected activity, such as speaking freely. If the answer is yes, then the court must determine if the plaintiff has demonstrated a probability of winning the lawsuit. If the plaintiff cannot do so, the lawsuit is subject to the anti-SLAPP law and the court can strike the lawsuit. The court held that "arising from" does not mean the same thing as "in response to." "[T[he mere fact an action was filed after protected activity took place does not mean it arose from that activity," Justice Kathryn Mickle Werdegar wrote for the court. "The anti-SLAPP statute cannot be read to mean that ‘any claim asserted in an action which arguably was filed in retaliation for the exercise of speech or petition rights falls under § 425.16, whether or not the claim is based on conduct in exercise of those rights,'" Werdegar continued, citing ComputerXpress, Inc., v. Jackson, (2001) 93 Cal.App.4th 993. To rule as the park owners urged "would in effect render all cross-actions potential SLAPPs," the court ruled. " he actual controversy giving rise to both actions — the fundamental basis of each request for declaratory relief — was the same underlying controversy respecting city's ordinance. City's cause of action therefore was not one arising from owners' federal suit," Werdegar wrote. Thus, the city's lawsuit was not subject to the anti-SLAPP law. Whether or not the city filed its lawsuit as a tactical response to the park owners' suit was irrelevant under the anti-SLAPP statute, the court held. Park owner arguments that the city's lawsuit was an attempt to chill free speech were also irrelevant, Werdegar wrote. In fact, requiring the defendant of a lawsuit to prove that the action had a chilling effect would deprive the defendant of anti-SLAPP protection, she wrote. Chief Justice Ronald George and Justices Joyce Kennard and Carlos Moreno concurred with Werdegar's opinion. Justices Janet Rogers Brown, Marvin Baxter and Ming Chin agreed with the portion of the opinion addressing the definition of "arising from" but called the rest of the opinion unnecessary. The state's high court issued two other SLAPP rulings the same day the Cotati opinion came down. The common ruling in all three cases was that a defendant in an alleged SLAPP lawsuit did not have to prove subjective motive behind the lawsuit. The Case: City of Cotati v. Cashman, No. S099999, 02 C.D.O.S. 7957, 2002 DJDAR 9950. Filed August 29, 2002. The Lawyers: For Cotati: Donald Lincoln, Endeman, Lincoln, Turek & Heater, (619) 544-0123. For Cashman: R.S. Radford, Pacific Legal Foundation, (916) 362-2833.

State lawmakers closed their 2001-02 session by approving bills that limit local government's ability to regulate housing density, urge better coordination by state agencies, protect agricultural land, add requirements to local general plans, and decrease litigation over condominium construction. Lawmakers did not approve proposed housing element reforms, changes to the state-local government finance system, or a bill that called for the Governor's Office of Planning and Research (OPR) to prepare a collection of "best practices." The California Environmental Quality Act remained largely untouched. The fate of several of the approved land use bills remained uncertain. Gov. Gray Davis had until September 30 to take action on the bills, although in the past he has gone a few days beyond the deadline for signing or vetoing legislation. Overall, the two-year session was a good one for affordable housing advocates, who consider legislation behind the $2.1 billion housing bond on the November ballot (SB 1227) their biggest achievement. Environmentalists generally fared well, while developers and real estate interests held a mixed bag when the session concluded. Local governments could cheer only the defeat of hostile bills. "It was quite a positive year for affordable housing, looking on balance at the things that passed," said Julie Snyder, a lobbyist for the group Housing California. Housing bills divide Many planners and local government officials were urging Davis to veto two key housing bills, AB 1866 (Wright) ad AB 2292 (Dutra). The former bill makes permits for second units a ministerial act and forces local governments to grant nearly any request for a density bonus. The latter measure requires "no net loss" of zoned housing density unless a city or county makes findings that a downzoning is consistent with an approved housing element. Daniel Carrigg, a lobbyist for the League of California Cities, predicted the two bills would lead to more litigation, rather than to development of more second units and apartments. "People think they can just sue their way through the housing issue," Carrigg lamented. But Marc Brown, of the California Housing Law Project, which supported both bills, said opponents have made too much of the measures. "I frankly have been amazed at how everybody has gotten so worked up over this," Brown said of AB 1866. He said AB 2292 was more the important bill but he still called it "pretty much a restating of existing law." Backers of AB 1866 said the bill is necessary because cities and counties often implement local regulations that make second units and density bonuses impossible to get. Lawmakers appeared swayed by testimony about how an application for a second unit could take a year and multiple hearings to process. "Part of the problem with our lack of housing in California is that you don't just have a hearing when you establish the zoning standards, you also have a hearing when a property owners comes in to comply with the zoning," Brown said. Brown charged that local governments' opposition stemmed primarily from provisions in both bills that allow a court to grant attorneys fees to litigants — such as developers and housing advocates — in successful lawsuits against cities and counties. City and county representatives do not deny that they dislike the attorneys fees provisions, but say that they have policy concerns, too. Carrigg, for example, argued that the mandate for over-the-counter permits in AB 1866 tramples due process rights. "You don't shut up the public without a consequence. They expect to be notified and they expect to have some kind of outlet at the Planning Commission or the Board of Supervisors or wherever," Carrigg said. While AB 1866's provisions regarding second units generated a great deal of attention, the bill's density bonus language could have broader implications. The bill allows the density bonus — already allowed by state law for affordable housing projects — to trump local regulations, except historic preservation or in cases where there would be an adverse health and safety or environmental impact. "That's way beyond what most reasonable people would think is the appropriate way to handle density bonuses," said Sande George, lobbyist for the California Chapter of the American Planning Association. A letter to Gov. Davis from George, Carrigg and California State Association of Counties (CSAC) Executive Director Steven Szalay complains that AB 1866 "sweeps all other public policies aside in favor of the demands of a developer." But the same groups complained that AB 2292 would harm developers because it would make city councils and boards of supervisors reluctant to approve downzoning, or to rezone property from residential to commercial uses. " e believe that the practical outcome of this legislation will be to stifle the ebb and flow of the marketplace and hamper local ability to respond to changing conditions in their communities," George, Carrigg and CSAC lobbyist DeAnn Baker wrote. A different housing bill intended to induce construction of condominiums benefited from a truce between builders and consumer attorneys over construction defects (see CP&DR, August 2002). Senate Bill 800 (Burton) sets performance standards for builders and gives builders a right to repair alleged defects before a homeowner may sue. Bill supporters said it would decrease litigation over construction defects, which builders say has suppressed condominium construction. State planning With no votes to spare in the lower house, Assemblywoman Patricia Wiggins (D-Santa Rosa) won approval for a bill that comes as close as lawmakers were willing to get to "state planning." Wiggins's bill, AB 857, emerged from a conference committee in June. It requires state agencies to adopt consistent planning and capital spending priorities based on promoting infill development, protecting environmental and agricultural resources, and encouraging efficient development patterns. The measure also calls for the governor to establish a process whereby agencies work out differences when their policies conflict. The state "doesn't have any direction as to how it does infrastructure planning at this time," Wiggins said. "Basically it's been a rudderless ship." Wiggins stripped language from the bill that would have imposed planning mandates on local governments because she could not get the votes. She also had to exempt schools, transportation projects — and even the University of California, because the new UC Merced campus would not meet the bill's dictates. In the end, Wiggins found allies in inner-city lawmakers, who contend the state too often spends money for infrastructure on the urban fringe while ignoring already developed areas. "The builders and realtors at the state level were opposed," Wiggins said, "basically because they don't want any limits on where infrastructure can go, and their opposition influences some members ." Sandra Spelliscy, an attorney and lobbyist for the Planning and Conservation League, called AB 857 a good first step. But, like many people, she said its impact will be determined by how seriously lawmakers and future administrations treat the measure. A bill that called for OPR to prepare model planning policies and practices failed. The policies would have promoted a number of "smart growth" themes, such as mixed-uses, infill, walkable neighborhoods, and certainty in the entitlement process. Senate Bill 1521 (Kuehl) also would have given bonus points on state grant applications to local agencies that adopted the model policies and practices. However, the administration dropped its support of SB 1521 in August amidst opposition from both builders and local government. At the time, interim OPR Director Tal Finney called the bill a political loser. Green acres Lawmakers approved four bills that, taken together, demonstrate a growing interest in preserving farmland. The bills are AB 1997 and AB 2370, both by Assemblywoman Helen Thomson (D-Davis), AB 3057 (Matthews) and SB 1515 (Machado). Davis has signed both Thomson bills and SB 1515. Thomson's AB 1997 prohibits the subdivision lands that are subject to agricultural or open space easements, while AB 2370 bars a local agency formation commission from allowing a city to annex land that is under a Williamson Act contract. The latter bill builds on a two-year-old overhaul of LAFCO law, which prohibited annexation of territory in a farmland security zone (FSZ). "California loses approximately 50,000 acres of agricultural and open space land per year to urbanization," according to an Assembly analysis of AB 2370. "One of the primary ways in which this happens is through annexation of farmland or open space to cities. This bill would prohibit LAFCOs from approving either expansions of spheres of influence or annexation proposals that would affect land under FSZ or Williamson Act contracts, except under certain specified circumstances." Assembly Bill 3057 adds the word "agriculture" to the name of the open space element, which is a required part of local general plans. The bill also requires local governments to revise their general plans to minimize or avoid land use conflicts and to promote long-term agricultural viability. Senate Bill 1515 prohibits land protected by an open space or agricultural easement, the Williamson Act or the farmland security zone from being part of a Mello-Roos community facilities district. The bill does not apply to territory that received protection prior to January 1, 2003. General plan specifics Besides the AB 3057 requirements for an "agricultural and open space element," three other bills also expanded the scope of local general plans. The bills are AB 2175 (Daucher), AB 2954 (Simitian), and SB 1468 (Knight). However, Davis vetoed AB 2175. The Daucher bill would have required OPR to include "human service matters" in its general plan guidelines. The bill also would have required the guidelines to address the effects of civilian development on active military bases. Davis called the bill too expensive, saying the $100,000 needed by OPR to prepare the guidelines was not budgeted. The second provision of AB 2175 tied in with SB 1468, which mandates that the land use element of general plans consider the impact of development on military activities. The bill was sponsored by the Navy, which has seen several of its bases squeezed out of existence by neighboring urban development. Assembly Bill 2954 requires that a land use element adopted or amended after January 1, 2004, address the distribution of child care facilities. Proponents argued that child care facilities are as important as housing, retail business, industry, open space, schools and garbage disposal facilities — all of which general plans already consider. The sessions's most controversial general plan bill, SB 910 (Dunn), would have allowed the state Department of Housing and Community Development (HCD) to fine cities and counties whose housing elements failed to receive HCD certification. The bill also would have altered the regional housing allocation process. The bill was the subject of countless working group meetings and private negotiating sessions at the Capitol, but in the end lawmakers could not agree. Most people expect similar legislation to reappear in 2003. Other general plan bills that failed this year included AB 2863 (Longville), which would have redefined the terms "residential unit" and "substantial compliance" with housing element law; AB 2864 (Wiggins), which would have required local governments to submit annual reports on how their general plan complied with state guidelines; and SB 1939 (Machado), which would have required OPR to notify the Attorney General's office if a general plan were eight years old, rather than wait until a plan were 10 years old. Contracts: Marc Brown, California Housing Law Project, (916) 739-6293 Daniel Carrigg, League of California Cities, (916) 658-8222. Sande George, California Chapter, American Planning Association, (916) 443-5301. Julie Snyder, Housing California, (916) 447-0531. Sandra Spelliscy, Planning and Conservation League, (916) 444-8726. Assemblywoman Patricia Wiggins, (916) 319-2007. Legislation websites: California Housing Law Project: www.housingadvocates.org California Chapter, American Planning Association: www.calapa.org Planning and Conservation League: www.pcl.org/LEG/leg.html State of California: www.leginfo.ca.gov

Over the years, there has been quite a bit of talk about splitting California into two states. The idea is that Northern California and Southern California do not have a lot in common and should not have much to do with each other. The idea has not gotten much of anywhere. But maybe that's because the reality is somewhat different than people's perception. A glance at the November ballot in cities and counties throughout the state reveals that California is already two states. But it is not divided into North and South. Rather, it is divided into West and East — between the populous and crowded coastal counties and the land-rich but rapidly growing inland areas. In Western California, residents vote on all kinds of land-use issues on a regular basis. In the other California, they don't. By our count, there are at least 20 different local measures dealing with land-use issues on the November ballot. Of those, only three are in inland counties. And one of those is hardly a "growth control" measure at all. In fact, it is quite the opposite: The Nevada County property rights initiative would require the county to reimburse private property owners when their development proposals are rejected (see , June 2002). The other 17 ballot measures are in coastal counties. For the most part, they represent a familiar mélange of sundry local issues, and they are from a familiar set of communities where ballot-box zoning has become deeply embedded in the political culture. These include Ventura County, small cities between Los Angeles and San Diego such as San Juan Capistrano and Oceanside, and the usual Bay Area direct-democracy axes such as Berkeley and San Francisco. Increasingly, the measures that we see today are there because of measures that we saw yesterday. That is, they are the result of previous ballot measures requiring "subsequent voter approval" in order to make major land-use changes. The best example is in ballot-happy Ventura County, which has four land-use measures on local ballots. Three of the Ventura County measures fall into the "subsequent voter approval" category. In Simi Valley — adjacent to the San Fernando Valley — slow-growth activists are seeking to shrink the urban growth boundary imposed in 1998 as part of the famous group of SOAR (Save Open-space and Agricultural Resources) initiatives (see , December 1998). In the semi-rural community of Santa Paula, a developer is trying to expand the SOAR boundary to include a large hillside property that is already inside the city's sphere of influence. In the beach town of Ventura, where the SOAR movement started in 1995, a hillside landowner is seeking voter approval for a development project that would set aside 80% of the property as open space. To make matters more confusing, the Ventura project does not require approval under SOAR because the property is already within the city's sphere of influence. But under a different ballot measure adopted last year, the project requires voter approval to extend water and sewer service into the hillside area. The fourth Ventura County measure is not on the ballot because of a previous ballot measure, but it will surely require more ballot measures if it passes. In the quaint town of Ojai, a local environmental group has placed a measure on the ballot that would require the city to turn down development projects if traffic impacts are not fully mitigated, and give increased power in the future to voters to decide such projects. It is difficult to know whether all this one-off citizen activism in coastal communities does more good than harm. After all, projects placed on the ballot pursuant to a previous initiative tend to be divorced — at least in public discussion — from the underlying planning policies of the community. And a political campaign does not necessary guarantee any more truth-telling in the public arena than the normal planning process before a city council. But once in a while, you run across a ballot measure that actually solves a problem — one that represents a comprehensive approach to a long-standing program in a way that is constructive and even inspiring. This year that ballot measure is the "Watsonville Orderly Growth and Agricultural Protection Initiative," which seeks to resolve a longstanding dispute over whether and how the poor farmworker town of Watsonville will expand onto surrounding farmland. Already overcrowded, Watsonville has been at loggerheads with Santa Cruz County environmentalists for more than a decade over expanding its urban area. Among other things, the city sought for many years to leap over Highway 1 onto the coastal plain, a move that the Santa Cruz County Local Agency Formation Commission and the California Coastal Commission blocked. In 1999, however, business and environmental leaders in the Watsonville area got together to form a group called Action Pajaro Valley, a typical group of do-gooders intent on building civic consensus. Three years later, that group has agreed on a growth strategy and an urban growth boundary that will appear on the ballot in November. Under the plan, half of the expected residential development in Watsonville during the next 20 years will take place inside existing city limits. The ocean-side of Highway 1 remains out of bounds. The Watsonville initiative allows development in six new areas. All of these are inside a new urban growth boundary that will remain in places for 20 or 25 years unless future voters change the boundaries. There have been only a few ballot measures in the recent history of California that have resolved complicated land-use issues rather than simply making them more difficult and cumbersome to deal with. In fact, the last was probably a decade ago, when Pasadena voters threw out growth caps from the 1980s and replaced them with a new and more comprehensive General Plan (see , December 1992). If the Watsonville measure passes, maybe it will inspire more community leaders in California — both elected politicians and civic leaders — to use the ballot.

The City of Rancho Palos Verdes does have the authority to regulate placement of radio antennas, but the city cannot deny a use permit for an antenna solely because the antenna would be used for commercial purposes, the Second District Court of Appeal has ruled. Under the Telecommunications Act of 1996 the city "may deny a permit for a legitimate reason," the court held. "But the city may not, as it did here, deny a permit based solely on the type of transmissions: commercial as opposed to amateur." In 1990, Mark Abrams erected a 52-foot radio antenna at his home near the peak of the Palos Verdes Peninsula. The city had approved a site plan review application for the structure. Seven year later, Abrams attached a 40-foot antenna to a fence around the tennis court on his property. He received approval for a site plan review application after the fact for the second antenna. Abrams is both an amateur radio operator (a "ham") and owns for-profit businesses that sell two-way radio equipment and provide commercial transmission services. Under the Rancho Palos Verdes antenna ordinance, Abrams had to get a conditional use permit to operate the antennas commercially. Abrams said the two permanent antennas only handled amateur radio traffic, but two portable antennas in his yard carried commercial relays. In April 1999, the city and the state sued Abrams, seeking an injunction that barred Adams from operating antennas for commercial purposes. Abrams argued that federal law preempted the city's permit requirement because it prohibited the use of radio frequencies allocated to him and his customers by the Federal Communications Commission. The trial court urged Abrams to go through the city's planning process, which he did. However, the Rancho Palos Verdes Planning Commission and, on appeal, the City Council, rejected Abrams's application to operate commercially. The case proceeded and Los Angeles County Superior Court Judge Cesar Sarmiento ruled for the city. Meanwhile, Abrams sued the city in federal court, where a district court vacated the city's use permit decision because there was no substantial evidence that commercial use would cause harm. Abrams appealed the decision rendered in state court, saying he had the right to use existing, city-approved antennas for commercial purposes. A unanimous three-judge panel of the Second District, Division One, sided with Abrams and overturned the trial court judge. The city argued that Abrams should not be allowed to "convert" his permitted antennas to commercial use because a change in use triggered the city requirement. A permit to construct a house in a residential zone, the city argued, would not authorize the owner to use the house for commercial purposes even though the external appearance remained the same. But the court rejected this argument, finding that federal law pre-empted the city's regulation in this case. There are three types of pre-emption of state law by federal law, the court explained: "Express pre-emption," in which Congress explicitly defines the extent to which it pre-empts state law; "field pre-emption," in which the federal government regulates all conduct in one subject area; and "conflict pre-emption," in which state law is pre-empted because it prevents someone from complying with federal law. "We conclude," Justice Robert Mallano wrote, "that the city's permit requirement, as applied in this case, is pre-empted because it conflicts with the licenses granted by the FCC (conflict preemption) and because Congress intended the FCC, not local authorities, to determine the frequencies that a radio operator may use (field preemption)." The court, however, rejected Abrams's argument that the owner of an FCC license did not have to apply for a city permit at all. "The city has the right, consistent with federal law and in furtherance of the goals of the antenna ordinance, to grant or deny a permit for commercial use," the court held. But a city needs a legitimate reason to deny such a permit. The court cited cases in which denial was upheld because antennas would have disrupted a mountain slope, caused significant aesthetic impacts, and detracted from the character of a neighborhood. None of the cases had to do with permit denial based solely on the commercial use of an antenna. The Case: City of Rancho Palos Verdes v. Abrams, No. B151086, 02 C.D.O.S. 7584, 2002 DJDAR 9561. Filed August 20, 2002. The Lawyers: For the city: Carol Lynch, Richards, Watson & Gershon, (213) 626-8484. For Abrams: Wilkie Cheong, Cheong, Denove, Rowell, Antablin & Bennett, (310) 277-4857.

In the years following passage of the Clean Water Act of 1972, counties and cities across the country found themselves forced to comply with restrictions on the release of municipal sewage and industrial waste. For the most part, they accomplished this by cracking down on polluting factories and by investing billions of dollars in advanced mechanical filtration and chemical disinfectant technology. Such measures could only do so much. They were effective in controlling pollution from large, easily identifiable sources. But 40% of the nation's surface waters remains too polluted to meet the Clean Water Act's goal of being safely swimmable and fishable, according to the Environmental Protection Agency (EPA). Pollutants ranging from pesticides and fertilizer, to oil and gasoline, to human and animal waste continue to reach rivers, streams and coastal waters. The contamination comes from "nonpoint sources," such as farm fields, urban streets, parking lots, and suburban back yards. "Today, nonpoint source pollution remains the nation's largest source of water quality problems," according to the EPA. The nation's water-quality regulators are now going after these diffuse, harder to control sources. And if the response by several municipalities in California is any indication, the new generation of wastewater treatment facilities will look a lot less like sewage plants and more like, well, just plain plants. The strategy, known as bioremediation, relies on living organisms to naturally remove such contaminants as nitrogen and organic compounds from polluted water. This approach is winning fans in the private and public sectors. One of the most ambitious examples of this strategy will soon be provided by the Irvine Ranch Water District (IRWD). The district provides domestic water service, sewage collection, and water reclamation for the City of Irvine and the unincorporated areas of south-central Orange County, as well as portions of Tustin, Santa Ana, Newport Beach, Costa Mesa, Orange and Lake Forest. The district's service areas drains into Newport Bay primarily through San Diego Creek, both of which the State Water Quality Control Board (SWQCB) has identified as "impaired" because of contamination by heavy metals, pesticides and other toxins. Newport Bay also is contaminated by nutrients such as nitrogen and phosphorus, which are not themselves toxic but which cause huge algae blooms that lead to fish die-offs as decaying algae deplete the water of oxygen. The EPA adopted pollutant standards for sediment, nitrogen and phosphorus in the San Diego Creek-Newport Bay watershed in 1999, and for toxic contaminants in June of this year. Additionally, the state has adopted a nonpoint source pollution control plan, mandated by the EPA, which delegates responsibility for devising and enforcing specific pollution-control measures to the state's nine regional water quality control boards. The Santa Ana Regional Water Quality Control Board, with authority over most of coastal Orange County (as well as portions of Riverside and San Bernardino counties), adopted new stormwater standards for Orange County and all its cities earlier this year. Like most of coastal Southern California, the Newport Bay watershed was once farmed but is now almost entirely urbanized. In 1983, agriculture accounted for 22% and urban uses for 48% of the Newport Bay watershed, according to Orange County. As of 2000, agriculture had dropped to approximately 7%. The San Diego Creek watershed is more than 90% urbanized. What this means is that compliance with the maze of new coastal water pollution standards falls increasingly on municipal agencies that serve urban homeowners and developers — agencies such as IRWD. Although these standards have drawn irate opposition from many city officials and representatives of the building industry, as well as environmental organizations (See CP&DR Environment Watch, August 2001, March 2000), IRWD is taking a pragmatic approach adopted by several other agencies throughout California. The district plans to construct about 37 small wetlands scattered throughout the San Diego Creek watershed. Dry-weather runoff from existing and new development will be shunted through the network of ponds and marshes, where plants and microbes will absorb nitrogen and other nutrients, and break down bacteria and other contaminants. Once it has been cleaned by biological processes, the runoff will be allowed to flow into the natural waterways. The district is calling its project the "Natural Treatment System." The district estimates the system will cost $25 million to $30 million to build, and $2 million to $3 million annually to maintain. It is modeled after an earlier marsh restoration project the district credits with a 25% decrease in algae blooms in Newport Bay. Beginning in 1996, the district diverted the flow from San Diego Creek into a restored wetlands complex known as San Joaquin Marsh. After circulating through the marsh and its ponds for several days, during which it is filtered by algae, cattails, bulrushes and other aquatic vegetation, the water returns to the creek channel with half its nitrogen content removed. An estimated 1,000 similar projects have been undertaken across the country. Wetlands remove dairy cow waste from agricultural runoff in Chino, fecal coliform from street runoff in Laguna Niguel, and contaminants in municipal sewage plant discharges in Pacifica. Chevron operates a nitrate-removing wetland at its refinery in Richmond. The Orange County Water District uses a complex of 50 small wetlands behind Prado Dam in Riverside County to remove nitrates from the Santa Ana River before it is allowed to recharge the local groundwater basin. The IRWD project, which it is developing in partnership with Orange County and several cities, is still in the early planning stages. Environmental review is expected to end this month and design is expected to commence after that. If all goes as planned, construction will begin next year. Some of the wetlands will be installed in existing storm water and flood retention basins. In new development areas, however, the district expects landowners to provide property or easements, and to pay for the costs of constructing the wetlands and related facilities. The district also is seeking state and federal grant money to cover part of the cost. Marilyn Smith, IRWD's community relations manager, said there has been no opposition to the proposal from the local development community, perhaps because the watershed is dominated by just one developer — the Irvine Company — which supports the project. The wetlands, Smith said, won't by themselves solve the problem of nonpoint source pollution. But they do represent a cost-effective way to tackle one aspect of it. "It's one more tool in the toolbox," she said. Contacts: EPA's Nonpoint Source Pollution Program: http://www.epa.gov/OWOW/NPS/ California Coastal Commission's Water Quality Unit: http://www.coastal.ca.gov/web/nps/npsndx.html Irvine Ranch Water District: (949) 453-5300