I admit that I had a knee-jerk reaction when I heard that the U.S. Navy planned to auction off the former Marine Corps base at El Toro this coming fall. Auction? It sounded as if military were colluding with big business to divvy up 4,700 acres of prime Orange County real estate that rightly belonged to the local community. The Pentagon traditionally has not sold its surplus real estate, but has given it to local governments for free in the form of "economic development conveyances." Now, in the case of El Toro, it looked as if the military were getting greedy. Well, so much for knee-jerk reactions. While it might be hard to convince some of my left-leaning brethren of the case, the forthcoming auction of El Toro will likely benefit the local community, the military and private business, in that order. The City of Irvine, not known to be a pushover on matters relating to the former Marine Corps base, seems just short of ecstatic about the arrangement. The auction is a test case for the military, which has never disposed of an entire base in this way before, although last year it did auction off three portions of the former Tustin Marine Corps Base, also in Orange County. El Toro has been the subject of perhaps the nastiest base reuse fight anywhere (see CP&DR , April 2002, November 1999, January 1997, July 1996, February 1995; CP&DR Legal Digest , April 2002, January 2002, July 2000). During the early 1990s recession, some Orange County business leaders and politicians decided that the county needed an international airport at El Toro. A number of regional transportation planners agreed. Surrounding cities, among the newest and most affluent in the county, of which Irvine was the largest, strongly opposed the idea. Orange County voters flip-flopped on the airport issue through four ballot measures, but the anti-airport faction ultimately prevailed. In the most recent initiative, voters in March 2002 designated a 1,500-acre "great park" at the heart of the former base, which will contain a university for 7,800 students, a 200-acre sports park, trails and other amenities. The remaining acreage will go toward 3,500 housing units, including a transit-oriented community, 1.6 million square feet of commercial space and 300,000 square feet of retail. In short, El Toro is an immense city-building project. The area is entirely within Irvine's sphere of influence, and the city is in the process of annexing the site. Orange County LAFCO is expected to decide the application this summer. The proposed auction divides the immense base into four sections, each of which includes a sizable chunk of the great park and open space. The former base has already been planned, zoned and entitled under a development agreement by the city — a factor that makes the land far more valuable to developers than unzoned land, because it is a "sure thing," that does not require years of negotiation with government for entitlements. But these entitlements are offset by the fact that there is essentially no infrastructure serving the site. Although Dan Jung, the city's director of strategic programs, would not predict the value of the base, he did cite sales figures of about $1 million per developable acre in the recent auctions at the Tustin base. If the winning bidders pay a similar amount for the developable land at El Toro, that translates to a cool $800 million. In addition, the city plans to charge the developers an additional $200 million in "development agreement" fees, which will go exclusively toward developing the public amenities of the great park. That money, together with an additional $153 million to be raised through assessment districts and special levies, will pay for both infrastructure and park development. The military, for its part, will have cash in hand to clean up the hazardous substances on the base. To understand the appeal of auctioning the land for the military, one must remember that the original purpose of the Base Realignment and Closure Act was to decrease costs by shedding redundant or surplus property. But the economic conveyance vehicle was not working in many cases for either local government or the Defense Department. Pentagon officials have complained that under the previous system of conveying land to local government, the military has ended up owning the bases for far longer than anticipated because local governments had to find developers interested in redeveloping the bases. Further, the military was not making much money on the deals. At a recent presentation, Wayne Arny, principal assistant secretary to the Navy, said he recently received a check for $51 million from the sale of one of the Tustin parcels. According to Arny, that sum doubled the total return the Navy had received from base closures since the program began in 1983. The auction process makes base reuse much more like a conventional real estate deal than before. Irvine controlled its destiny, so to speak, by doing a good deal of advance planning. The city identified the land uses it wanted, rezoned the area, and entitled it. As mentioned earlier, this provides certainty to developers, 22 of which have submitted statements of qualifications in anticipation of the auction. The same process of entitlements also provides certainty to the city, which knows exactly what should get built. At the same time, the city avoids the development business, where most cities do not belong. "We let all three parties play the role they do best," Jung said. "The Navy is the landowner, and in selling they provide an economic return to the taxpayer. The city does what it does best, which is regulate land use through its general plan. The developers do what they do best, which is develop property." Although it may seem common-sensical, real estate has no value unless it is capitalized, and the auction is one way to capitalize the immense value of El Toro and use the proceeds for public benefits. For some people, the idea of a conventional development process offering the most desirable planning outcome might seem hard to accept. When a city plans properly in the first place, however, the developer ceases to be an adversary and becomes an implementer of the public will. So if your knee continues to jerk, try a calcium pill. Better yet, take a long walk in the Meadow Park soon to materialize just east of the Irvine Spectrum.

A city may prohibit or regulate a boarding house with at least three tenants in a low-density residential zone, according to a state Attorney General's opinion. " reserving the residential character of a neighborhood is a legitimate government purpose that may be reasonably achieved by prohibiting commercial enterprises such as operating a boarding house business," Deputy Attorney General Anthony DaVigo wrote. The opinion came at the request of Lompoc City Attorney Sharon Stuart. Lompoc proposed an ordinance prohibiting in an R-1 zone a boarding or rooming house business, which was defined as a single-family home wherein at least three rooms were rented under separate oral or written agreements. An owner, agent or manager may or may not live on the site. In reaching his conclusion, DaVigo cited , (1980) 27 Cal.3d 123, in which the state Supreme Court held that a city may exclude a boarding house from a residential zone. This is because in zoning matters, the term "residential" is distinguishable from "commercial" or "business." Setting the threshold for regulation of boarding houses at three tenants is within the City Council's discretion, DaVigo found. He cited , 234 Cal.App.3d, 1579 (see , November 1991), which upheld a city's authority to regulate short-term rentals. "Line drawing is the essence of zoning," the Sixth District Court of Appeal ruled in . " he line must be drawn, and the legislature must do it. Absent an arbitrary or unreasonable delineation, it is not the prerogative of the courts to second-guess the legislative decision." Drawing the line at three tenants is not clearly arbitrary or unreasonable, DaVigo wrote. "It is ‘at least debatable' that prohibiting boarding house businesses operated for as few as three boarders in a low-density residential zone is a reasonable exercise of legislative powers," he wrote, citing the standard the U.S. Supreme Court used in , (1981) 449 U.S. 456. Furthermore, the ordinance would not deny property owners all commercial use of their property, as they could still rent to one or two tenants, DaVigo concluded. The Attorney General's opinion is No. 01-402 and was published March 19. It can be found at 03 C.D.O.S. 2502 and 2003 DJDAR 3101.

Contra Costa County and its 19 cities are considering a "growth management compact" for the next 20 to 30 years that emphasizes efficient development patterns, redevelopment and improved job distribution. The proposed compact — important components of which remain unsettled — is a key part of "Shaping Our Future," a multi-agency effort to address growth, conservation and transportation on a regional basis. The compact and the draft plan released in late March contain a number of "smart growth" principles. The compact and plan assume the county will continue to have an urban limit line, but determining exactly where the line will be and how often it can be adjusted are potential sticking points in the entire process. A "summit" of government leaders is scheduled for May 17, and that meeting could set the tone for the next phase of the project. Thus far, the atmosphere has been one of cooperation. All 19 cities, the county and the transportation authority have participated in the regional "visioning" process, which started in early 2002. But the groundwork for the process was prepared during the late 1990s, when a group of elected officials and city managers began talking about evidence that transportation authority plans for spending $1.5 billion would have little impact on congestion, said Don Blubaugh, Shaping Our Future project manager and a retired Walnut Creek city manager. The idea behind Shaping Our Future is to get all of the land use jurisdictions to consider the county as a whole when making development decisions. The project uses Envision Utah — a vaunted visioning effort in the Salt Lake City region — as a model. It took about a year to get every city to buy into the project, and even today just about everyone expects some cities to go their own ways in the end. "We know going in that there is nothing in California law that can make anyone do this," Blubaugh said. "It has to be a volunteer effort." "No one wants to give up their ability to make land use decisions," said Mike Oliver, Oakley City Manager and a member of the Shaping Our Future management committee. But those local land use decisions need to reflect shared regional interests, he said. The draft compact calls for cities and the county to amend their general plans to include the Shaping Our Future principles and implementation tools. That means the project is more advanced that many visioning processes that result in simply a collection of feel-good policies that no one is committed to using. "The project is oriented toward implementation more than other visioning projects have been" said John Fregonese, of Portland's Fregonese Calthorpe Associates, the project consultant who has also worked on the Envision Utah and other visioning efforts. Contra Costa County has the chance to go farther with its regional planning than other places, said Fregonese, because the county has a base on which to build: The urban limit line "is effective and it seems ingrained in the public's mind;" the transportation authority has used a growth policy in making funding decisions since the early 1990s; there is a history of cooperation at the subregional level; and several of the cities have undertaken downtown mixed-use redevelopment and transit-oriented development. With a population right at 1 million, Contra Costa County is very much a suburban county. In recent years, the county has provided about one-quarter of the Bay Area's new housing. But the county is not homogeneous. The Lamorinda area (Lafayette, Moraga and Orinda) in the hills west of Oakland, is an upscale, mostly residential subregion. Cities along Interstate 80 in the western end of the county, such as El Cerrito, Richmond and San Pablo, are largely working class towns with at least some industrial job base. In the middle of he county, Walnut Creek is home to many offices. The eastern county cities of Pittsburgh, Antioch, Brentwood and Oakley have seen rapid development of single-family housing for people who work elsewhere in the Bay Area. The cities of Danville and San Ramon are part of the silicon-tinged Tri-Valley region, the rest of which lies in Alameda County. Still, Shaping Our Future participants say that Contra Costa's cities have plenty in common — especially congested freeways and thoroughfares. The draft compact and plan have addressed the congestion by calling for increased housing densities, more multi-family housing near existing and proposed BART stations, and greatly increasing jobs in the east county. The preamble to the compact states, in part: "The process generates a future vision for Contra Costa County and its cities that focuses on more efficient use of land; encouraging good urban development in ‘centers' throughout the region; preserving the integrity of many existing neighborhoods; reducing traffic congestion in key areas; developing transit strategies and funding sources; improving dilapidated or underutilized business districts; and how and where to conserve valuable open spaces and hillsides." Government and community leaders have reached a general consensus on these concepts. Most Contra Costa County jurisdictions are already using, or at least moving toward, these concepts, Fregonese noted. Shaping Our Future leaders have tried to involve the public as much as possible. Workshops have drawn several hundred people each, and Blubaugh has made about 75 public presentations. Development interests have participated in the process, but they wonder how feasible the final plan will be. "I think there is general consensus about what needs to happen in the county," said Guy Bjerke, president and CEO of the San Ramon-based Home Building Association of Northern California. "Where things seem to break down is in the implementation details. Putting a bunch of jobs in the east county makes sense, but is the transportation system over the next 20 years going to be able to keep pace?" Developers also have serious concerns about the urban limit line. In fact, if any issue dooms the project, it could be the growth boundary. Over the strong objection of some cities, county supervisors contracted the line by 14,000 acres in 2000 (see , September 2000). The draft compact presents a number of potential approaches to determining the boundary, including reviewing the boundary as often as every five years. The draft plan says vacant and underutilized land within the existing urban limit line can provide 20 years worth of development — 30 years if the boundary takes in a closed Naval weapons station next to Concord. Fregonese Calthorpe has emphasized the need to remain flexible with the urban limit line, while environmentalists have vowed to fight any effort to expand the growth boundary. Bjerke contended the draft plan's projections are faulty. Much of the land identified as undeveloped or underutilized is in that state for good reason, Bjerke said. The project could also get derailed based on how city officials perceive the plan. Thus far, most grumbling has remained in the background. But some people would like to see more growth in Lamorinda, others question east county cities' commitment, and some elected officials question whether their constituents will accept the plan's high-density areas. A roll-out of the plan to the public in early April generated a mixed response. "We're not an island," said Orinda Mayor Pro Tem Joyce Hawkins. "We need to be part of the process and part of the solution. But at the same time, we need to defend our general plan." Orinda has some small areas that could be redeveloped with multi-family or senior housing, and downtown is ripe for some mixed-use redevelopment, said Hawkins, a member of the Shaping Our Future policy committee. But, she added, "We really are built out." Fregonese said no city is going to like every aspect of the plan. But he contends that just about everyone will accept — and help carry out — the plan's fundamentals: More redevelopment in working class cities on the west end, more jobs in the east county, and increased social equity throughout the county. At this point, project leaders hope to get jurisdictions with 80% of the population to sign the compact. That would be enough of a critical mass for the project to make a difference, and the other jurisdictions might come on board eventually, Blubaugh said. Contacts: Don Blubaugh, Shaping Our Future project manager, (925) 256-3585. John Fregonese, Fregonese Calthorpe Associates, (503) 228-3054. Mike Oliver, Oakley city manager, (925) 625-7025. Joyce Hawkins, Orinda mayor pro tem, (925) 253-4220. Guy Bjerke, Home Builders Association of Northern California, (925) 820-7626. Shaping Our Future website: www.shapingourfuture.org

A developer's lawsuit that claimed the San Diego Unified Port District and one of its commissioners conspired to kill the developer's proposed waterfront project has been thrown out as a strategic lawsuit against public participation (SLAPP). The Fourth District Court of Appeal upheld a trial court, which found that a Tuchscher Development Enterprises (TDE) lawsuit against the port district and Commissioner David Malcolm was a SLAPP. The unanimous three-judge appellate panel also affirmed the trial court's award of attorneys' fees to the Port District, and the appellate court awarded attorneys' fees for the appeal portion of the case. In 1998, Tuchscher entered into an exclusive negotiating agreement with the City of Chula Vista for development of bayfront property known as Crystal Bay. Tuchscher then obtained an option to purchase the land from the primary owner, Chula Vista Capital. However, the purchase option expired in February 2000, and the negotiating agreement expired three months later. Tuchscher then filed its lawsuit against the Port District, Malcolm, the city and developer Lennar Corporation. Tuchscher alleged the defendants induced breach of contract, interfered with Tuchscher's "prospective economic advantage" and violated the unfair competition law. The gist of the lawsuit was that the Port District and Malcolm conspired with Lennar to disrupt the city's negotiations with Tuchscher. The defendants argued that their actions fell within the anti-SLAPP statute (Code of Civil Procedure § 425.16) because their alleged oral and written statements regarding Crystal Bay were part of a governmental review of a development project, and because the issue was of public interest. The anti-SLAPP law is intended to block lawsuits that chill the exercise of free speech in matters of public interest. San Diego County Superior Court Judge William Nevitt Jr. ruled for the defendants and blocked the suit from going forward. Tuchscher appealed, arguing that the anti-SLAPP law did not apply because there was no "public issue" and because no formal public process had begun. And even if the anti-SLAPP law applied, Tuchscher contended that it had presented enough evidence for the lawsuit to go to trial. The anti-SLAPP statute requires the court to undertake a two-step process, the Fourth District explained. First, the defendant must show that the challenged action arose from protected activity. If the defendant makes that showing, the plaintiff must demonstrate a probability of prevailing at trial for the case to continue. Both the trial court and the Fourth District ruled that the defendants showed that their activities were protected under the anti-SLAPP law and that Tuchscher failed to make its case. The Fourth District ruled that "the prospect of commercial and residential development of a substantial parcel of bayfront property, with its potential environmental impacts, is plainly a matter of public interest." The court rejected Tuchscher's argument that if it there was a public issue, it did not involve the Port District and Malcolm and the argument that Tuchscher's motivation for the suit was not to chill free speech. The court called the arguments irrelevant. As for Tuchscher making its case, the Fourth District ruled that the developer provided little admissible evidence. A declaration by Tuchscher President and Chief Executive Officer William Tuchscher detailed the alleged behind-the-scenes activities of Malcolm, Port District officials, city officials and Lennar. And Tuchscher argued that these activities were intended to discourage further negotiations between the city and Tuchscher, and between the Crystal Bay landowner (CVC) and Tuchscher. These activities constituted a breach of contract and interference with Tuchscher's prospective economic gain, the developer argued. But the court called William Tuchscher's declaration hearsay, and "argumentative, speculative and impermissible opinions." " he record is absent of any admissible, direct evidence or evidence from which we may infer respondents' actions induced a breach or disruption," Justice Terry O'Rourke wrote for the court. Besides, O'Rourke continued, "such talks do not by themselves establish the city improperly negotiated with Malcolm or Lennar, abandoned the negotiating agreement, or otherwise refused to meet and confer or negotiate in good faith with TDE." Even if the Port District and Malcolm helped draft an agreement between CVC and Lennar, the activity would not necessarily be illegal, the court ruled. "Although the point is obvious, Malcolm, the Port District, Lennar and CVC were not parties to the negotiating agreement and thus they were not bound by any contractual obligation or duty to refrain from taking steps — either among themselves or with the city — to push their own development ideas for Crystal Bay," O'Rourke wrote. "Absent any contractual obligation to avoid discussing the issues with the city, respondents' conduct does not amount to a breach of contract or other independently wrongful act sufficient to support the plaintiffs' interference with economic advantage claim." The Fourth District further ruled that the trial court correctly ignored new evidence that Tuchscher presented when requesting reconsideration. The new evidence was that Malcolm and the Port District argued in an unrelated lawsuit that the district had jurisdiction only over tidelands, submerged lands in San Diego Bay, Lindbergh Field airport, and some limited annexations. If that were the case, the Port District and Malcolm would not have jurisdiction over the proposed Chula Vista development. Tuchscher argued that the doctrine of judicial estoppel prevented the Port District and Malcolm from having it both ways. The appellate court, though, ruled that the doctrine did not apply because the court in the other case rejected the description of limited jurisdiction and because the Port District and Malcolm gained nothing from that ruling. Plus, the court ruled, Tuchscher did not explain how the Port District's jurisdiction was relevant to its case. The Case: , No. D038811, 03 C.D.O.S. 2244, 2003 DJDAR 2827. Filed March 12, 2003. The Lawyers: For Tuchscher: Joel Pressman, Kolodny & Pressman, (858) 453-0309. For the Port District: David Noonan, Post, Kirby, Noonan & Sweat, (619) 231-8666.

A REPORT prepared by a group of New Urbanist planners for the Governor's Office of Planning and Research (OPR) recommends that cities and counties adopt form-based codes to govern development. The report knocks typical zoning codes, which are based on land uses. The authors contend this type of zoning has led to 50 years of suburban-style development, which has caused people to rebel against growth. "Just two generations ago, before sprawl fully took hold, when a green field was developed, a new neighborhood or town was gained," the report states. "Citizens then saw a fair transaction: A piece of nature traded for community, wealth and opportunity. But today, with only the suburban pattern available, citizens expect the farm field to become merely another housing subdivision, or a shopping center, or a business park rather than more of their town, and therefore as a net loss transaction." A form-based code places heavy emphasis on the design of streets and buildings — but not their uses. "The form-based code process … begins by defining the public spaces — the boulevards, the system of parks and greenways, the vistas to rivers, bays and nature preserves — and then within carefully measured neighborhoods lays out a network of streets and blocks that are scaled first to the pedestrian, then to the lots and buildings, and finally to the automobile," the report continues. "The automobile is accommodated, but at lower speeds — precisely what one wants in a neighborhood." To assist local governments, the authors recommend that ORP prepare at least one model form-based code. They also recommend that the state provide tax advantages and infrastructure funding to support compact, pedestrian-oriented and transit-oriented development. And they urge the state to commission a program-level environmental impact report so that "smart growth can be offered preferential permitting procedures, and can be found to be an environmentally superior alternative to sprawl under CEQA." The "White Paper on Smart Growth Policy in California" was prepared by planning consultants Robert Alminana, Paul Crawford and Laura Hall, architects Andres Duany and David Sargent, and Hercules Community Development Director Steve Lawton. ******* SAN BENITO COUNTY growth wars have heated up. In early April, the Board of Supervisors decided to adopt a growth control initiative rather than place the measure on the ballot. Landowners responded by starting a referendum drive to overturn the supervisors' decision. A rural county within long commuting distance of Silicon Valley, San Benito County has been the site of some bloody fights over housing developments during recent years. The county grew at a rapid percentage during the 1990s. Still, two-thirds of the county's 56,000 residents lives in the City of Hollister, according to the Department of Finance. The county has also seen real estate prices rise rapidly. The initiative sought to ensure that the Board of Supervisors could not back down from growth-control policies adopted since the late 1990s. (An initiative can be changed only by subsequent voter approval.) The initiative encompassed an existing policy that requires voter approval of upzoning to accommodate more than 100 units, and a two-year-old growth management ordinance that caps growth at 1% annually. Additionally, the initiative rezoned most agricultural land from five-acre minimum parcel sizes to 20-acre minimums. The initiative increased the minimum parcel size on rangeland from 40 acres to 160 acres. Initiative petitions presented to supervisors contained 5,600 signatures — more than four times the number of valid signatures needed for the initiative to qualify for the ballot. So supervisors adopted the initiative, which made landowners go on the offensive with the referendum. County Planning Director Rob Mendiola said the board's decision forces the county to go forward with a transfer of development credits program that the county was already designing. ******* THE CALIFORNIA COASTAL COMMISSION has approved a 313-unit housing development and 675,000-square-foot outlet mall on the Marblehead coastal plateau in San Clemente. Landowners have tried to develop the 250-acre site for 30 years. Previous proposals have ranged from 2,100 housing units to the Nixon presidential museum to a 60-acre shopping mall and houses. Those proposals all hit stiff opposition from San Clemente residents and environmentalists. Over the years, the size of the development proposal continually shrunk. Finally, the landowner and developer, the Lusk Company, revised the plan to its final shape. During the April Coastal Commission meeting, longtime opponents of earlier proposals lined up to support the development, and the Coastal Commission voted its unanimous approval. The approved plan designates about 105 acres for habitat and public open space with hiking trails. Buildings must be at least 250 feet from the edge of the bluffs and at least 100 feet from wetlands. Additionally, stormwater runoff from the site will be collected and piped to a wastewater treatment plant. ******* SAN MATEO COUNTY'S Midpeninsula Open Space District needs to improve its commitment to agriculture before expanding its boundaries to the county's coastal areas, the San Mateo County grand jury has concluded. One of the state's most aggressive open space districts, Midpeninsula proposes to grow by 140,000 acres, from the county's ridgeline to the coast. The expansion, which still needs Local Agency Formation Commission approval, would allow Midpeninsula to protect land along the coast and in the hills facing the ocean. Coastal farmers have opposed the planned expansion, fearing the agency would attempt to shut down some agricultural operations. The grand jury found that the agency lacks agricultural expertise and has not made preservation of farming a priority. Agency officials responded that planning behind the proposed expansion addresses the grand jury's concerns. "We're not interested in curtailing agricultural uses," district General Manager Craig Britton told . ******* THE ONGOING CORRUPTION SCANDAL in San Bernardino County continued to unfold during April. Former San Bernardino Councilmembers Valerie Pope-Ludlam and Edward Negrete were charged with taking bribes from a developer during the mid-1990s. Also charged were a grandson of Pope-Ludlam and Negrete's wife. The state Attorney General's office alleges Pope-Ludlam and her grandson accepted $50,000 from developer Allan Steward. Negrete and his wife allegedly received $10,000 in bribes from Steward. Prosecutors did not name the favors that Steward received for the payments. During the 1990s, Steward received a number of economic development loans and loan guarantees from the city. Two years ago, Steward pleaded guilty to separate federal charges that he bribed San Bernardino County and City of Colton officials. Also, Riverside businessman Gaylord Singletary pleaded guilty in April to bribing Colton City Councilman James Grimsby. Singletary paid the councilman $5,000 for his influence in getting a road built to Singletary's property, which he wanted to develop. Grimsby is scheduled to be sentenced in federal court this month after pleading guilty to accepting bribes from Steward. In a different case, Riverside County Superior Court Judge Patrick Magers ruled that there was enough evidence for corruption charges against San Bernardino County Supervisor Jerry Eaves and businessman William "Shep" McCook to proceed to trial. McCook is charged with bribing Eaves, former County Administrator James Hlawek and two Colton city councilmen to gain approval for the erection of billboards along Interstate 15. Eaves is charged with accepting the bribes, which in his case allegedly amounted to 10 free visits to a Las Vegas resort and $32,000 in campaign contributions. The other public officials allegedly accepted cash bribes. McCook and Eaves have pleaded not guilty. Federal prosecutors brought similar charges against Eaves, who remains in office through 2004 despite pleading guilty in 2001 to seven misdemeanors for not reporting gifts. However, a federal judge said the billboard case belonged in state court. ******* FORMER PITTSBURG City Councilman Frank Quesada pleaded no contest to three conflict-of-interest misdemeanors and was sentenced to 300 hours of community service in April. According to Contra Costa County prosecutors and a investigation, Quesada was in debt to the family of developer Albert Seeno Sr. by as much as $370,000. Yet Quesada voted to approve several Seeno projects before losing a re-election campaign in 2001. ******* NAPA COUNTY SUPERVISORS have approved a controversial Stream Setback Revision Ordinance, which prohibits construction of non-residential structures near rivers and streams. The new setbacks range from 25 feet for small drainages to 150 feet for larger creeks and rivers in hilly areas. Grapegrowers and other farmers opposed the new regulations, saying they will harm production and provide negligible benefits. Agricultural interests say they will pursue a referendum. Supporters, however, contend the rules will decrease flood danger, maintain water quality, and aid wildlife. The county has had a stream setback ordinance since 1991, but the new regulations increase the amount of land covered by setbacks from 23,000 acres to 53,700 acres, according to a county Conservation, Development and Planning Department staff report. About 11,700 of those acres are vineyards. After getting blasted by homeowners during public hearings, county officials decided to exempt residential construction from the setback regulations. County planners later determined that the exemption would mean the loss of less than 1 acre of proposed setback annually. ******* A LAWSUIT over an Alameda County growth-control initiative has been given a second life. In an unpublished decision issued in March, the First District Court of Appeal upheld Measure D, which established growth boundaries around cities and unincorporated communities in central and eastern Alameda County (see , December 2000, October 2000). But in April, the court accepted the request of two developers and property owner to rehear the case. The development interests had argued in their lawsuit that Measure D, a Sierra Club-backed initiative approved by voters approved in November 2000, was counter to state housing element law and violated the single-subject rule for an initiative. A trial court and the First District rejected those arguments. It is very rare for an appellate court to grant a request for a rehearing. Filing such requests is typically only an administrative step on the way to petitioning for review by the state Supreme Court. The plaintiffs expressed cautious optimism, while initiative backers said they hoped the rehearing would lead to a published opinion in their favor. ******* A TRANSPORTATION PLAN that is heavy on alternatives to the single-occupant vehicle has been adopted by the San Diego Association of Governments (SANDAG). The plan forecasts spending about $42 billion through 2030 on transportation projects. Rail transit, buses and transit stations will get 38% of the money under the plan, while carpool and bus lanes will get 18%. Streets and road will get 23% of the funding, and highways 19%. Among other things, the plan calls for additional carpool lanes on Interstates 5 and 15, construction of a long-planned rail line from Oceanside to Escondido, expansion of San Diego's trolley system, and completion of a freeway loop south of San Diego. ******* ALSO RECEIVING SANDAG board approval was the North County Multiple Habitat Conservation Program (MHCP). The plan designates 19,000 acres as habitat for 60 plant and animal species in northern San Diego County (see , February 2003). Seven cities in the area still need to adopt companion plans to carry out the MHCP. ******* STANISLAUS COUNTY is scheduled this month to begin seeking bids for construction of the proposed Gallo Arts Center in downtown Modesto. The Board of Supervisors has approved the design of the facility, which will provide two performing arts theaters, museum space, offices and meeting rooms. A private nonprofit organization, The Central Valley Center for the Arts, will provide about half the money for the $32 million arts center project, with the county providing the rest. The facility will replace two dilapidated buildings on I Street. ******* TULARE COUNTY SUPERVISORS have adopted the state's most rigorous dairy monitoring program. The program applies to any agricultural operation with at least 25 confined animals; the county's approximately 300 dairies are the primary target. Livestock farmers will have to file annual reports that address the handling of manure, runoff and wastewater, and other issues. The county may later amend the program to require groundwater monitoring. ******* THE INTERIOR DEPARTMENT decided not to appeal a Ninth U.S. Circuit Court of Appeals ruling on offshore oil drilling. The Ninth Circuit ruled that the California Coastal Commission has the authority to review proposed extensions of federal offshore oil drilling leases (see , January 2003). Interior Secretary Gail Norton announced that her agency would negotiate with the state regarding the oil drilling. ******* A LAW INTENDED TO BLOCK a proposed open pit gold mine in eastern Imperial County received Gov. Davis's signature in April. The urgency legislation, SB 22 (Sher), would require Glamis Gold Ltd. to fill in and restore the 850-foot-deep pit that the mine would create. Glamis said such reclamation would make the mine too expensive to open. The 1,500-acre mine is proposed for federal lands next to the Quechan Indian reservation. The tribe considers the site a sacred area and opposes the mine. Then-Interior Secretary Bruce Babbitt rejected the mine application during the Clinton administration's final days, but Interior Secretary Gail Norton reversed the decision in late 2001.

A developer's lawsuit alleging that the City of Wasco breached a development agreement by withdrawing funding for infrastructure is not subject to the statute of limitations in the Subdivision Map Act, the Fifth District Court of Appeal has ruled. The court ruled that the dispute was over an interpretation of the development agreement, which was not an action arising out of the Subdivision Map Act. The map act's 90-day statute of limitations provision (Government Code § 66499.37) has been in effect since 1975 "and no published decision has applied §66499.37 to a breach of contract claim," the court held. The ruling sent the lawsuit back to the trial court, which had earlier ruled for the city. The dispute involves the 480-acre Valley Rose Estates subdivision. In November 1992, Wasco and the Valley Rose Estates developer, The Legacy Group, entered into a development agreement. Two months later, they signed an acquisition agreement, in which the city agreed to pay up to $5.2 million for streets, storm drains and other public improvements constructed by Legacy. The city created an assessment district and began the process of issuing bonds for the infrastructure. The bonds were eventually issued after the developer sued. What spurred the suit was the Wasco City Council's decision in October 1994 to invoke the lien-to-value ration of 1:3 that was contained in the acquisition agreement. The city contended Legacy had not maintained the ratio, so the city ceased funding the project until the lien-to-value ratio returned to at least 1:3. Almost six months later, Legacy filed its lawsuit. The city argued that the Legacy lawsuit was too late because of the Subdivision Map Act's 90-day statute of limitations, and that two agreements precluded Legacy from recovering monetary damages. Kern County Superior Court Judge Jon Stuebbe accepted the city's arguments and ruled against the developer. The Legacy Group appealed, and in a partially published opinion, a unanimous three-judge panel of the Fifth District overturned Judge Stuebbe. The published portion of the decision addressed the statute of limitations issue, for which the court found no precedent. The city argued that the Subdivision Map Act's statute of limitations applied because the lawsuit challenged a City Council decision "concerning a subdivision." The Legacy Group contended that its lawsuit stemmed from the city's failure to meet contractual obligations and from misrepresentations by city officials — and those were outside the scope of the Subdivision Map Act. The appellate court found three bases for siding with the developer: A book, a state Supreme Court decision in a case indirectly on point, and the lack of any published decision supporting the city's argument. The book was the 2002 edition of by Kenneth Manaster and Daniel Selmi. They wrote, "Since a development agreement is a contract, presumably the normal contract statute of limitations will apply if either party wants to sue for breach of that contract." The state Supreme Court case was the takings case , (1994) 8 Cal.4th 1 (see , September 1994). In Hensler, the court ruled that a "decision to adopt, amend or modify a development agreement is not an ‘action involving a controversy over or arising out of the Subdivision Map Act,'" Justice Gene Gomes wrote for the Fifth District. "It then follows," Gomes continued, "that a decision concerning only the interpretation of a clause in a development agreement — a decision less significant than a decision to adopt a development agreement — also is not a decision ‘concerning a subdivision' for purposes of §66499.37." Finally, there was the lack of any published opinion extending the Subdivision Map Act's statute of limitations to a contractual dispute. The only part of Legacy's lawsuit subject to the 90-day statute of limitations was a claim concerning the city's failure to approve final maps, the court held. The unpublished portion of the opinion addressed the merits of the lawsuit, although the court did not dig deeply before remanding the case to the trial court. The Fifth District did overturn the lower court decision regarding the agreements' limitations on damages. The appellate panel ruled that the agreements were not as clear as the trial court had found them to be and that the limitation in the contracts may have only restricted the amount of damages to the amount of funds the city had available. The question of whether or not The Legacy Group maintained the 1:3 lien-to-value ratio was also remanded to the trial court, as was the developer's contention that the city was required to carry out the agreements. The Case: , No. F038382, 03 C.D.O.S. 2291, 2003 DJDAR 2911. Filed March 13, 2003. The Lawyers: For Legacy: Robert Scapa, California Lawyers Group, (818) 981-3712. For Wasco: N. Thomas McCartney, (661) 334-8011.

A federal appeals court has upheld a lower court's decision to remove a special master who had been appointed to oversee redevelopment of an industrial site in Union City. The Ninth U.S. Circuit Court of Appeals also upheld a court order capping the former special master's compensation and ordering him to repay $113,000. The decision was a victory for Union City, which had contended the former special master stymied the city's redevelopment efforts at the site. The case's history is so extensive that the Ninth Circuit compared it to , the convoluted case that bogs down for decades in the Court of Chancery in Charles Dickens's . In 1978, Pacific States Steel Corporation closed its plant in Union City, "leaving a parcel of contaminated land and a bankrupt medical plan for retired steelworkers and their dependents," according to Circuit Judge M. Margaret McKeown. The pensioners filed a class action lawsuit. Federal District Court Judge Marilyn Hall Patel decided the best approach was to clean up and redevelop the Pacific States Steel site and use the proceeds of development to fund the medical benefits. Judge Patel appointed a special master in 1984, but she replaced him because he failed to make much progress. In 1990, she appointed Palo Alto attorney Bruce Train, and his associates Theodore Sorensen and Hans Lemcke, as a new special master. In 1995, Train proposed, and Patel approved, a plan in which Train formed an administrative services company and a development company to handle the site development and raise money for the medical plan. Train also reached agreements with Union City's redevelopment agency for funding development of part of the site, where homes were eventually built. But over the next several years, the project seemed to go no further. The sticking point amongst all the parties involved was the amount of Train's compensation, according to the Ninth Circuit. Patel began to have misgivings, so she suspended Train and commenced an investigation. In December 2000, Judge Patel terminated Train as special master. She followed up that action in early 2001 with a lengthy order describing Train's transgressions: Rejecting valid redevelopment agency offers while holding out for more compensation for himself; misappropriating creditors' funds and Pacific States Steel funds; overbilling for a legal assistant; lying and disloyalty to the court; and generally failing to accomplish the assigned task. Patel capped the special master's compensation at $3.6 million (the three men had already received $1.2 million apiece, but they sought an additional total of $39 million) and she ordered Train personally to pay back $113,000 that he had overbilled or diverted for his personal use. Patel also ordered Train to pay $24,000 in attorneys' fees. Train appealed to the Ninth Circuit. A three-judge panel of the Ninth Circuit called the situation unusual because it amounted to an officer of the court appealing an order of the court. The Ninth Circuit held that Train had the right to appeal, but that he could not appeal Patel's orders because they did not qualify as a "final judgment." "Although the matter of Train's compensation has been resolved, development of the property under a different special master and the allocation of funds among the various parties will continue," Judge McKeown wrote. If Train wants to appeal, he will have to wait for final resolution of the case, the Ninth Circuit held. "We are aware that these proceedings are nearly 20 years old and may continue for some time. But according to Judge Patel's report, Train helped create this quagmire by failing to carry out his responsibilities. We also note that adherence to the procedural rules governing appeals does not leave Train wholly uncompensated in the interim, as Judge Patel's disgorgement orders still permit Train to keep more than $1 million." The Ninth Circuit also rejected Train's argument that Judge Patel should be removed from the case. The Ninth Circuit found the conduct of which Train complained — such as private consultation with real estate experts — was consistent with the judge's administrative role. " e believe that Judge Patel carefully balanced Train's interest in receiving due process with her responsibility for supervising the special master's efforts and, above all, seeing that the plant site is developed and the pension fund paid," the court ruled. The Case: , Nos. 01-16638 and 02-15110, 03 C.D.O.S. 1473. Filed February 20, 2003. The Lawyers: For Bruce Train, Hans Lemcke and Theodore Sorensen: Robert Goodin, (415) 392-7900. For Cordoza: Arthur Lazear, (510) 763-5700. For Union City: Charles Reese, (510) 835-9100. As amicus curiae for the district court: Tamar Pachter, (415) 642-1331.

The state Supreme Court will review a case involving the awarding of attorneys' fees in a CEQA lawsuit. The lawsuit involved a tie vote to certify an environmental impact report for a housing development in Orange County's Trabuco Canyon. With one member recusing himself, the Orange County Board of Supervisors voted 2-2 on the EIR. The county then proceeded on the grounds that the Planning Commission's certification of the EIR — which had been appealed to the Board of Supervisors — stood and no further review of the proposed project was necessary. But the Fourth District Court of Appeal ruled that an EIR can be certified only with an affirmative vote; thus, the 2-2 vote was the same as taking no action and the project could not proceed until an EIR was approved (see , January 2001). After the appellate court decision, an Orange County Superior Court awarded the project opponents $400,000 in attorneys fees. The Fourth District overturned the award of fees, ruling that the lawsuit only sought clarification. The lawsuit did not meet the standard for awarding attorneys fees in such cases by enforcing an important public right or furthering important public policies, the court held. Five state Supreme Court justices voted to review the case. The issue for review is narrow: What standard of review should an appellate court use in determining whether a lawsuit justified an award of attorneys' fees? The Fourth District applied a de novo standard, meaning the court provided a completely new review without deference to the lower court. The case is , No. S112816.

THE STATE DEPARTMENT OF WATER RESOURCES has settled a lawsuit filed by the Planning and Conservation League over the 1995 "Monterey Agreement," which, among other things, spelled out how State Water Project (SWP) water would be allocated during droughts. The settlement calls for the agency to more fully disclose its ability to deliver water, including preparation of a biennial report to all SWP contractors, and all cities, counties and regional planning agencies within the State Water Project area. Additionally, the word "entitlement" in SWP contracts will be replaced with the term "Table A Amount" to reveal more fully the system's capacity. The settlement clarifies the scope and process for a new environmental impact report for the Monterey Agreement, and names the Department of Water Resources as the lead agency. Furthermore, the department must issue guidelines for permanent water transfers and must conduct negotiations with State Water Project contractors in public. The settlement is available on the department's website, www.montereyamendments.water.ca.gov WITH AN EYE toward providing local governments more control over Indian casino development, Gov. Davis has asked 61 California Indian tribes to renegotiate the state's three-year-old gambling compact. Although he has declined to be specific about how much authority local governments should have, Davis has suggested that Indian casinos should be subject to the same land use controls as any other project. Currently, local governments have no authority over casino developments unless the projects need public infrastructure. Tribes, which are sovereign, have been cool to the idea of letting local governments — typically counties — control casino development. The relationships between tribes that have casinos or plan to build them, and local governments have been very mixed. How far Davis will press the local control issue is unknown because the governor also wants the tribes' consent to tax the casinos' slot machines to help cover the state budget deficit. LOS ANGELES MAYOR JAMES HAHN has taken steps to block the expansion of the Sunshine Canyon Landfill in Granada Hills. Hahn directed the city's Environmental Affairs Department not to forward Browning Ferris Industries' (BFI) application for landfill expansion to the California Integrated Waste Management Board, even though the application has been deemed complete. While the city stalls on the BFI application, it is seeking proposals to haul trash to out-of-town garbage dumps, probably in the desert. Browning Ferris contends the city has no right to delay the landfill expansion and says transporting waste to the desert would more than double disposal costs. Expansion of the Sunshine Canyon facility, along Interstate 5 at the northern boundary of Los Angeles, has long been a controversial issue and was even a minor factor in the proposed San Fernando Valley secession. The garbage dump has operated for years in unincorporated Los Angeles County. In 1999, the city said it would permit BFI's expansion of the dump inside the city limits, but Hahn vowed to block the project upon being elected mayor in 2001. EXPANSION OF THE PORT OF LOS ANGELES is back on track, as residents of San Pedro and Wilmington have settled a lawsuit against the City of Los Angeles. Under the settlement that was announced in March, the Port will spend $60 million to address air pollution and aesthetic concerns over a new China Shipping Holding Company terminal and the port as a whole. Specifically, the Port will spend $20 million during the next four years to reduce air pollution at the port, $20 million to mitigate aesthetic impacts to nearby residents, and $10 million to clean up trucks serving the port. The Port also will replace four existing 16-story cranes with shorter models. The Port further agreed to prohibit trucks operating in the China Shipping yard from having diesel engines, and to provide electricity to docked ships so the vessels do not keep their diesel engines running while in the port. Last fall, Port area residents won a California Environmental Quality Act lawsuit against the city, forcing the Port to halt work on the nearly complete project (see , December 2002). A TWO-YEAR DISTICT ATTORNEY'S INVESTIGATION into development of the Belmont Learning Center in downtown Los Angeles has found no criminal wrongdoing. The report, released in March by Los Angeles District Attorney Steve Cooley, identified "unsound business practices and serious problems with the LAUSD school development process" and made recommendations to prevent future problems. The Los Angeles Unified School District (LAUSD) has spent about $160 million on the nearly finished high school. Construction has stopped twice, first in 1999 because of the discovery of methane gas on the site and again in 2002 because of concerns about an earthquake fault. The school for 5,000 students has never opened. A 1999 internal school district investigation suggested there had been criminal malfeasance, and during the 2000 election campaign, Cooley accused then-District Attorney Gil Garcetti of mishandling a Belmont probe. Cooley's $1.6 million investigation noted a number of errors by the district and some of its contractors but did not allege any crimes. The report is available on the district attorney's website, http://da.co.la.ca.us. THREE MISDEMEANOR CORRUPTION CHARGES were filed in March against former Pittsburg City Councilman Frank Quesada. The Contra Costa County District Attorney's Office alleged Quesada was in debt by $370,000 to developer Albert Seeno Jr. and his brother Tom Seeno while Quesada voted to approve a number of Seeno developments, including part of the 2,900-unit San Marco subdivision. Quesada, who lost a re-election bid last November, allegedly borrowed the money from Seeno Enterprises starting as early as 1981 for a variety of personal and business purposes. The revealed the apparent conflict of interest last fall. Arraignment is scheduled for this month, and the reported that Quesada will plead no contest. The district attorney's office has indicated it will seek a sentence of community service, rather than fines or jail time. MANCHESTER RESORTS has filed a claim against the City of Oceanside for $15 million, alleging the city broke its contract with Manchester for development of a beachfront hotel. The claim is the first step toward litigation. The city actually approved the controversial hotel, but the California Coastal Commission last year refused to let the city amend its Local Coastal Program to permit the project (see , July 2002, , November 2000). After the Coastal Commission unanimously rejected the 400-room, 12-story hotel, the City Council determined the city's contract with Manchester was void and the council refused to consider a Manchester proposal for a scaled-down project. A FEDERAL JUDGE has given the U.S. Fish and Wildlife Service one year to designate critical habitat for the endangered Santa Ana sucker fish. The ruling in a lawsuit filed by environmental and angling groups could threaten flood control, hydroelectric, wastewater disposal and water treatment projects proposed for the Santa Ana River in San Bernardino and Orange counties. THE SONOMA COUNTY POPULATION of the California tiger salamander was listed as endangered in March by the Fish and Wildlife Service. The listing decision follows an emergency listing the agency issued last year to settle a lawsuit filed by the Center for Biological Diversity. The latest decision angered Sonoma County developers and some local officials, who fear development could slow as a result. THE FISH AND WILDLIFE SERVICE and the state Department of Fish and Game have taken title to 16,500 acres of salt ponds in the southern San Francisco Bay. The federal and state governments, and four private foundations provided $100 million to purchase the salt ponds from Cargill Salt (see , July 2002). A team of federal and state officials now expects to spend up to five years planning for restoration of the salt production ponds to marshland. STATE HOUSING and Community Development Director Julie Bornstein will resign effective May 1. Bornstein announced she will become the founding director of the new Keston California Infrastructure Institute at the University of Southern California.

A takings lawsuit by Lake Tahoe area property owners against the Tahoe Regional Planning Agency (TRPA) has been tossed out by the Ninth U.S. Circuit Court of Appeals because the court had already ruled on the matter. Since 1984, litigation filed by the property owners association, the Tahoe-Sierra Preservation Council, has resulted in 11 published opinions, including the latest one, which was the fifth ruling from the Ninth Circuit. The litigation has challenged in numerous ways a regional plan that TRPA adopted in 1984 and revised in 1987. "Although the Association attempts to frame its complaint in terms of new injuries caused by new acts, this action is in reality a prayer for relief from wrongs allegedly done by the Agency in connection with actions it took to implement the 1987 plan during the period from 1987 through 1991," Justice Stephen Reinhardt wrote for the unanimous three-judge panel. "We have addressed many of these allegations before." The court did leave the door open for a group of property owners regarding TRPA's application of the 1987 plan to their particular properties. The court held that those claims were not ripe because none of the property owners had submitted an application for development under the plan. Spurred by Lake Tahoe's diminishing clarity and evidence that development was causing the environmental degradation, TRPA adopted a regional plan in 1984. But the plan lasted barely two months before a federal court blocked its implementation at the State of California's request. In 1987, TRPA adopted a revised plan. The plan established an Individual Parcel Evaluation System (IPES) that was intended to rate the suitability of parcels for development. Parcels with an IPES rating above a certain level were eligible for one of 300 annual building permits. In 1989, TRPA implemented the ranking system, requiring an IPES score of 725 for a parcel's development. The system essentially banned development on parcels in riparian areas known as Stream Environment Zones. In 1999, TRPA lowered the IPES threshold in Nevada's Washoe and Douglas counties because 80% of the sensitive parcels in those counties had been permanently protected from development — a 1987 plan requirement for adjusting the IPES figure. The agency maintained the IPES figure at 725 in California because less than 80% of sensitive parcels had been permanently protected. In January 2000, the Preservation Council and 252 individual members sued over TRPA's decision to maintain the IPES threshold in California at its original level. The landowners argued that TRPA's regulatory scheme was a categorical taking that did not advance a legitimate state interest. They contended that TRPA's decision to lower the IPES threshold in Nevada but not California was a denial of equal protection. The landowners further challenged the practice that allowed property owners who scored within 10% of the IPES line to become eligible for a building permit if they provided mitigations or paid a mitigation fee. U.S. District Court Judge Lawrence Karlton divided the landowners into three categories: those in a Stream Environment Zone (SEZ), those ranked well below the IPES line, and the "10% plaintiffs." With regard to the takings allegations, Judge Karlton ruled that the statute of limitations for the SEZ property owners began to run in 1989, when TRPA notified them that their land could not be developed. The statute of limitations for those below the IPES line began to run in 1990, when TRPA fully implemented the system. Those statutes of limitations had long since expired, and nothing TRPA did during 1999 triggered them anew, Karlton ruled. An "as applied" challenge of the 1987 plan by the 10% plaintiffs was not ripe because no one had attempted to use the system, he ruled. As for the equal protection claim, Karlton ruled the lawsuit was too late because the statute of limitations began to run in 1987 when TRPA adopted the revised plan. The Preservation Council appealed. The Ninth Circuit upheld Karlton's ruling in its entirety, but on a different basis. The appellate panel ruled that all claims except those of the 10% plaintiffs were barred by the doctrine of res judicata, which means that the matter has already been decided. According to the court, res judicata depends on three things: similar claims arising from "the same transactional nucleus of facts," a final judgment on the merits, and the same parties. The latest Tahoe lawsuit passed the three-part test, the court ruled. First, the court ruled, the claims asserted in the present case came from the same transactional nucleus of facts that gave rise to two earlier rounds of litigation. " o action by the Board in 1999 was even colorably inconsistent with the understanding that the Association should have had in 1990 as to how the system would function," Justice Reinhardt wrote. "Indeed, in its 1991 complaints, the Association protested both the enactment of the 1987 plan and its implementation." Second, those claims were resolved by the district court, which held that they were barred by the statute of limitations. The Ninth Circuit upheld the decision in , 216 F3d 764 (see , July 2000). Third, the court ruled, the parties in this suit and the previously resolved case were the same. The Preservation Council has been the lead plaintiff in all of the litigation, and every individual plaintiff in the case at hand is a member of the organization. Further, 36 individual plaintiffs in the current case were also named plaintiffs in the earlier rounds, the court determined. As for the 10% plaintiffs, the court deemed their claims were not ripe for a decision because none of the plaintiffs had pursued the mitigation program. The court sited the U.S. Supreme Court's decision in , 520 U.S. 725 (see , June 1997). " he Supreme Court clearly explained that a regulatory takings claim is only ripe if the plaintiff ‘demonstrates that she has both received a "final decision regarding the application of the challenged regulations to the property at issue" from "the government entity charged with implementing the regulations" and sought "compensation through the procedures the State has provided for doing so,"'" Reinhardt wrote. "The 10% Plaintiffs have not satisfied the first requirement." The Case: , No. 00-16660, 03 C.D.O.S. 1736, 2003 DJDAR 2257. Filed February 28, 2003. The Lawyers: For Tahoe-Sierra Preservation Council: Lawrence Hoffman, (530) 583-8542. For TRPA: E. Clement Shute, Shute, Mihaly & Weinberger, (415) 552-7272.

After two years of life under the Bush Administration, what we might call the "General Plan" for American is in the midst of a serious update. And it's not surprising that "smart growth" doesn't appear to be on the list. After all, urban policy nowadays means homeland security, not livable neighborhoods. And it's a little hard to argue about all the problems of cities when cities are doing so well. Cultural trends have combined with smart growth planning initiatives to make central cities attractive places again. Even downtown Los Angeles, arguably one of America's most inhospitable central districts, is experiencing a boom in housing demand and cultural life. But maybe the biggest reason that smart growth isn't on the administration's agenda is simply that so many of the administration's friends are making a business out of opposing it. Under the banner of ideologues like Randal O'Toole, Director of the Oregon-based Thoreau Institute, and David Strom of the Taxpayers League of Minnesota, the anti-smart growth movement has begun the air attack against smart growth and may soon send in the ground troops as well. Conferences to rally the anti smart-growth constituency have been picking up in number. This new movement is busy working out talking points and collective strategies. At a three-day convention in February called "Preserving the American Dream," Strom called smart growth leaders "pointy-headed intellectual fascist ." At another symposium in Washington D.C. titled "Preserving the American Dream of Mobility and Home Ownership," the stated goal was to discredit and oppose "rail-transit boondoggles" and "restrictions on rural property rights." So much for all those feel-good urban design and livability conferences. The political theory gauntlet has been thrown down by the property rights crowd. The attack on smart growth principles is not only constant, but it is consistent as well. The message: Smart growth is a set of ideas dreamed up by pinheaded intellectual planners out of touch with reality who want to cater to urban elites and deny the masses the things they really want and need, such as houses and yards and cars. And upon just a bit of reflection, we have to admit that maybe the planners have lost the battle before it has begun. After all, the smart growth agenda has been primarily carried by architects and progressive infill developers working in league with redevelopment officials and transit agencies. All of these groups have reaped financial benefits from dramatically revitalized central cities. But urban planners have mainly been relegated to a cheerleading role, having evolved into a profession that is shy about leading a charge. Smart growth -- or what we used to call good planning -- is probably a better "sell" as an on-the-ground reality than it is as a theory. Because the intellectual debate comes right back to a fundamental planning issue: Property rights for the individual vs. collective planning for society. That's why I'm pretty certain that in the war about the philosophical merits of smart growth, planners will be outgunned. That is because full-blown debate over urban social theory is an arena that most urban planners have lost stomach for. This may stem from the dismal failures of post-war urban renewal, a movement that planning agencies once lobbied in favor of loudly and successfully. As a case in point, most planners are unaware that the anti-smart growth movement even exists. Some of the movement's leaders are typical property rights advocates who want to do little more than argue intellectual constructs just as the smart growth thinkers do. But the movement is already developing strategies on how to best win the hearts and minds of policy-makers. For example, Jon Caldara, president of the Golden, Colorado-based Independence Institute, warned that the anti-smart growthers avoid coming off as "cranky white men," and recommended that they play the race card by enlisting spokespeople like Joseph P. Neil, an African-American state representative from South Carolina. Neil has opposed development restrictions that protect rural lands from development in that state. Like other lighting-rod issues forced on the American consciousness by Bush and the conservatives in Washington, smart growth will apparently now require highly politicized discussion. This is not necessarily a bad thing, but one that will challenge planners in an arena that they have all but left behind.

Spurred by several pieces of legislation approved during the last few years, California's state government agencies are gradually making advances in environmental justice. At least five agencies have adopted environmental justice policies or mission statements. The Governor's Office of Planning and Research has conducted environmental justice training for employees of more than 50 different agencies. The California Environmental Protection Agency (Cal EPA) is working on a broad environmental justice strategy and implementation measures, all of which are intended to serve as a model for other state agencies. These steps mark a significant change from only a few years ago. Not until 1999, when Gov. Davis signed SB 115 (Solis), did California codify a definition of environmental justice. The law (Government Code § 65040.12) defines environmental justice — commonly called simply "EJ" — as: "The fair treatment of all races, cultures and incomes with respect to the development, adoption, implementation, and enforcement of all environmental laws, regulations and policies." The Solis bill was followed in 2000 by SB 89 (Escutia), which required creation of an environmental justice working group and public advisory committee to assist Cal EPA in developing an EJ strategy. Senate Bill 828 (Alarcon) from 2001 gave the agency until December 31, 2003 to adopt the strategy and to identify obstacles in state government to environmental justice. The EJ movement grew out of 1980's protests over "environmental dumping" or "environmental racism." The idea is that the government ought not place an inordinate number of unwanted land uses in poor or minority neighborhoods, and that agencies ought to consider how development projects and government programs impact — and serve — those neighborhoods. Caltrans might be farther along in actually carrying out EJ policies than any other state agency. Because it gets so much funding from the federal government, Caltrans has been involved in EJ efforts since President Clinton signed an executive order mandating environmental justice considerations in 1994, said Greg King, chief of Caltrans' cultural and community studies office. Caltrans' project delivery process has included an EJ analysis since the mid-1990s. In late 2001, Caltrans Director Jeff Morales signed a director's policy that states, in part, "The Department emphasizes the fair treatment and meaningful involvement of people of all races, cultures and income levels, including minority and low-income populations, from the early stages of transportation planning and investment decision-making through construction, operations and maintenance," King said. Caltrans, said King, has found that environmental justice often can be advanced through early and frequent communication with members of the public, and then responding to public concerns. "We're trying to move environmental issues up early on in the planning process so you have more latitude in the decision-making process," King said. That means thinking about EJ long before a project gets approved for funding through the State Transportation Improvement Program. "By the time we've done our environmental studies, we need to have worked with the communities." In the heyday of freeway construction, the state frequently bisected or wiped out poor neighborhoods to accommodate new roads. When Caltrans officials return to those neighborhoods 40 and 50 years later to talk about new projects, the officials learn that residents have not forgotten past mistreatment. When Caltrans rebuilt the Cypress freeway in west Oakland after the 1989 Loma Prieta earthquake collapsed a portion of the elevated highway, the agency met resistance based on the original construction of the freeway through a poor, African-American neighborhood, King explained. Now, both Caltrans and the Federal Highway Administration point to the reconstruction project as an example of EJ success. The agency realigned the freeway away from the neighborhood and nearer to military property. Caltrans also spent $2.5 million on construction trade training for members of the community, and the agency awarded contracts to minority-owned businesses. Nowadays, communities that might have gotten steamrolled back in 1950s can tie up a project in court for years. Caltrans engineers and planners well know this, which further encourages community outreach efforts. This outreach involves local meetings, providing information in multiple languages, and working out mitigations for project impacts, such as sound walls, landscaping, providing linkages over a freeway or even choosing a different route. It's all part of what Morales calls "context-sensitive solutions." Environmental justice training for Caltrans employees is ongoing, and reactions among workers is mixed, conceded Peter Bond, an associate transportation planner who helps conduct training sessions. "About half the people are saying this is just common sense, and about half the people are shaking their heads and saying what in the world are you talking about," Bond said. The Office of Planning and Research has provided EJ training for hundreds of government employees. The training is broad and addresses EJ history, issues and controversies, as well as best practices, said Bonnie Chiu, of OPR's environmental justice office. She said OPR recommends full public involvement in projects and programs, using GIS as a tool, and completing a checklist to ensure that impacts are considered and all community members have access to the process. "We're hoping to do more specific training for just one agency so we can get into the details," Chiu said. Cal EPA's ongoing development of an EJ strategy is the most comprehensive efforts in the state government. During a two-day meeting in March, Cal EPA's 17-member advisory committee refined recommendations it has been developing. The recommendations, contained in a lengthy report, are based on four elements: • Ensuring EJ is integral to the development, adoption, implementation and enforcement of laws and policies. • Ensuring and promoting meaningful public participation. • Improving research regarding the health and environment of "communities of color and low-income populations." • Ensuring multi-agency coordination and accountability. The advisory committee is scheduled to complete its work this spring. Working group hearings on the proposed EJ strategy will follow. Contacts: Bonnie Chiu, Office of Planning and Research, (916) 323-9033. Greg King, Caltrans, (916) 653-0647. Cal EPA environmental justice website: www.calepa.ca.gov/EnvJustice/ Governor's Office of Planning and Research environmental justice website: www.opr.ca.gov/ejustice/EJustice.shtml