The U.S. Supreme Court has declined to review an endangered species decision in a California case handled by the U.S. Court of Appeals for the District of Columbia. The Supreme Court's decision, issued in mid-January, means that the appellate court opinion upholding the U.S. Fish & Wildlife Services listing of four species of fairy shrimp that live in California as either endangered or threatened will stand. The Building Industry Association of Northern California (BIA) filed the lawsuit in 1994. The builders argued that the listings should be overturned because the federal agency failed to make available to the public a study on which the listing decision was based. The BIA also claimed the decision was not based on the best available science and the agency misapplied its own policy on independent peer review. The BIA further argued that the listing violated the commerce clause because the fairy shrimp live in only one state and the federal government's regulation has nothing to do with interstate economics. (The Endangered Species Act is predicated on Congress's authority to regulate interstate commerce.) The trial court and the appellate court both ruled that the Fish & Wildlife Service followed proper procedures. The BIA did not press the commerce clause claim at the trial court level, and the appellate panel dismissed it in a footnote. Still, the commerce clause argument was central to the BIA's petition with the U.S. Supreme Court. Since 1995, the court has struck down a federal law against possessing a gun near a school and a law allowing a victim to sue a rapist in federal court. In those instances, the court ruled that the federal laws had nothing to do with interstate commerce. Property rights advocates hoped that the high court would apply the same reasoning to strike a major blow against the Endangered Species Act. However, the court declined without comment to hear the case. Fairy shrimp are small crustaceans that live in vernal pools — small indentations in the earth's surface that fill with water during the rainy season. Vernal pools are somewhat common in portions of the Central Valley and in San Diego County. Some scientists say that development and farming have wiped out most vernal pool complexes in the state, a factor that led to the endangered species listings. The case is Bldg. Indus. Ass'n of Superior California v. Norton, No. 01-620. At the court of appeal it was No. 00-5143.

The state Supreme Court will review an appellate court ruling that subdivision maps recorded prior to the first version of the Subdivision Map Act in 1893 do not create legal parcels. In January, all seven of the state's high court justices voted to review the decision in Gardner v. County of Sonoma (see CP&DR Legal Digest, November). The ruling on the validity of a lot map from 1865 was the clearest decision ever on the legal standing of antiquated subdivisions. The First District Court of Appeal found that the grandfather provision of the Subdivision Map Act did not apply to pre-1893 maps. "The Legislature intended the grandfather clause to apply to subdivisions approved under prior versions of the Act, i.e., to exempt from the current Act those subdivisions established in compliance with or exempt from laws then in effect," the court held. "The Legislature, with its strenuous emphasis on local control and approval of subdivisions, did not intend the grandfather clause to apply to the pre-1893 legal ‘State of Nature' when no subdivision statute was in existence." Planners and landowners have disagreed for years over the validity of "paper subdivisions." Planners argue that that recognizing the parcels now would be unfair and would hamper good development practices. An estimated 1 million paper lots exist in California. Some of those parcels are as small as 1,250 square feet. Many were created with no provisions for access and without consideration of topography. Still, landowners contend the lots were legitimately created under rules in effect at the time and government officials cannot ignore recorded maps. The state Supreme Court has not yet set a date for oral arguments. The case is Gardner v. County of Sonoma, No. S102249. It was originally published on October 11, 2001 at 01 C.D.O.S. 8793, and 2001 DJDAR 10909.

The City of Desert Hot Springs filed Chapter 9 bankruptcy papers in late December, making it the first California city in at least 25 years to seek bankruptcy protection. City officials said that the city has $8 million in debts it cannot pay, and that the bankruptcy plan was necessary to protect citizens. A major part of the debt is approximately $6 million owed to developers and their attorneys who won a Fair Housing Act suit against the city (see CP&DR Legal Digest, July 2001). Last year, the Ninth U.S. Circuit Court of Appeals ruled that the city illegally blocked the development of a low-income mobile home park, and the court upheld a jury's $3 million award to the developers, Silver Sage Partners, Ltd. Including interest and attorneys' fees, that amount has ballooned to about $6 million. The city never paid and Silver Sage was in the process of seizing city assets. Desert Hot Springs, a city of 17,000 about 10 miles north of Palm Springs, has struggled financially for years. City officials say the Ninth Circuit ruling put the city over the edge. But Silver Sage attorneys immediately accused the city of bad faith. "They're a deadbeat city," attorney William Davis told The Desert Sun. "It's another tactic, one in a long line." In the first test of a subsequent vote requirement for large projects in Newport Beach, voters soundly rejected a proposed 10-story, 250,000-square-foot office building at the Koll Center office park. During a special election in late November, 59.5% of voters said no to Measure G. One year earlier, Newport Beach voters approved the Greenlight Initiative, which requires the electorate to decide most projects that require general plan amendments, such as the proposed office building. The estimated 2,700 vehicle trips that the new office tower would have generated appeared to be a major factor, as the nearby intersection of Jamboree Road and MacArthur Boulevard is already very busy. A Sacramento County Superior Court judge has ordered a ban on all development on 600 acres in the City of Folsom because the city has failed to approve any low-income housing in recent years. Judge Lloyd Connelly essentially set aside the 600 acres as a reserve for affordable housing projects after ruling earlier that Folsom had violated state housing law because none of the 7,000 housing units approved by the city during the past 10 years were for low- or moderate-income people. Connelly acted in a lawsuit filed by Legal Services of Northern California. The nonprofit organization had signed an agreement with the city last year that called for the city to pursue 650 affordable units within four years. But the agreement quickly fell apart. Legal Services praised Connelly's November ruling. City officials said they would expedite preparation of a revised housing element so that they could minimize the length of time Connelly's order is in effect. The U.S. Army Corps of Engineers has rejected as incomplete an application from University of California, Merced, to fill seasonal wetlands on about 1,350 acres where the new school is planned. In early December, the Corps said it could not decide on the permit � required under Section 404 of the Clean Water Act � until UC provided a great deal more information. The federal agency requested an explanation of the need for a 910-acre campus and 340-acre development reserve, an analysis of indirect water impacts, a cultural resources survey of the site, information on the endangered San Joaquin kit fox, and other information. University officials downplayed the importance of the Corps' demands, but federal regulators suggested the situation could slow the approval process. The new UC campus and an adjoining community are planned for about 3,000 acres of farmland and a golf course a few miles east of Merced. Seasonal puddles known as vernal pools, which support endangered fairy shrimp, have been a major environmental obstacle to the project, and planners have already shifted the site of the proposed campus and new town away from the largest collection of vernal pools (see CP&DR, April 2001, June 1999). University officials insist they will have classrooms open by fall of 2004. A loophole that would have weakened environmental regulations for new power plants that run during times of peak demand was closed in December by the California Energy Commission. In October, the panel had voted 3-2 to allow "peaker" plants to operate for up to 30 years using a single-cycle generating process, even though the hastily-built plants were originally approved on the condition that they convert to a cleaner combined-cycle process by 2003. The commission also decided to allow large, permanent power plants to use an expedited permitting process if developers applied by December 19. But faced with sharp questions from some state lawmakers, including State Sen. Debra Bowen (D-Marina del Rey), chairwoman of the Senate Energy, Utilities and Communications Committee, and environmental groups led by the Planning and Conservation League, the commission unanimously reversed itself less than two months later. The Nature Conservancy has used a $35 million government grant to purchase a 9,200-acre island a few miles east of Rio Vista. Under a grant from the Cal-Fed Bay Delta project, the Nature Conservancy can continue to operate a for-profit farm on Staten Island. Nature Conservancy representatives said they intend to run a demonstration farm that shows how wildlife and a commercial agricultural operation can live in harmony. Cal-Fed officials said the project has multiple benefits for the delta. However, other environmentalists questioned the entire arrangement. There will be almost no public access to the land, and the Nature Conservancy can make a profit from farming property purchased with public money, they complained. Developers of a proposed 1,500-home subdivision in Tuolumne County have backed away from the project after opponents qualified a referendum for the March ballot (see CP&DR Local Watch, October 2001). At the request of Tuolumne Investors, the Board of Supervisors rescinded its approval of a general plan amendment, rezoning and a development agreement in December. Backers of the Mountain Springs project said they would design a new project for the 1,100-acre site near Sonora. U.S. Forest Service Chief Dale Bosworth has affirmed the Sierra Nevada Framework, a comprehensive plan for managing 11 national forests covering 11.5 million square miles of the mountain range. However, Bosworth did ask USFS foresters in California to consider ways to reduce the risk of fire, reevaluate the Framework based on the latest National Fire Plan, and find ways to synchronize the Framework with an earlier act of Congress calling for more of a multi-use approach to forests. The Sierra Nevada Framework now goes to Undersecretary for Natural Resources and Environment Mark Rey because Agriculture Secretary Ann Veneman recused herself. Under the lengthy management plan, loggers would be limited to cutting only small trees, and both loggers and ranchers would have to curtail activity in riparian areas (see CP&DR Environment Watch,March 2001). In general, environmentalists endorsed the plan, and natural resources companies condemned it. Mountain View mayor Mario Ambra has pleaded not guilty to charges that he abused his role by pressuring city officials to reject development proposals. Ambra has claimed that charges filed by Santa Clara County prosecutors are politically motivated and that he has done nothing wrong. The district attorney's office filed the charges in November after a civil grand jury completed a five-month investigation. Prosecutors say Ambra pressured planners to reject development applications for properties adjacent to land he owns on North Rengstorff Avenue. Prosecutors also allege the mayor urged code enforcement officers to step up efforts against another property owner. Ambra allegedly wanted to purchase and develop all of the properties himself. A new "Regional Transit Vision" prepared by the San Diego Association of Governments calls for integrating public transit into land use decision-making. Although the San Diego region has some successful transit programs, less than 5% of commuters rely on public transit, according to the SANDAG report. "The Regional Transit Vision integrates transit into many of our communities and neighborhoods," the document states. "It relies on local jurisdictions supporting transit-oriented developments that become the central activity areas around which housing, jobs, shopping and recreational opportunities are plentiful." The plan makes a number of financing and planning recommendations for transit agencies, cities, the county and SANDAG itself. The Regional Transit Vision is available in the publications section of the SANDAG website, www.sandag.org Correction: The Local Watch story in the December edition of CP&DR incorrectly characterized one statement from City of Industry Mayor David Perez. He said that the city's proposed reservoir in Tonner Canyon would not conflict with a wildlife corridor.

Here's a man-bites-dog story to top them all: The biggest redevelopment agency in the state may put itself out of business unless the state Legislature comes to the rescue. The San Jose Redevelopment Agency collects almost $175 million per year in property tax increment. That is by far the most of any redevelopment agency in California. It's 7% of the overall state redevelopment total. It's 50% more than the gigantic Los Angeles Community Redevelopment Agency. Like other big redevelopment agencies around the state, the San Jose agency has been in business for decades. It's long been known as one of the most aggressive redevelopment operations anywhere – working in industrial areas, the downtown, and the neighborhoods. It has funded one of the state's most innovative and respected affordable housing programs. A few years ago, San Jose maximized its flexibility in redevelopment by combining all of its project areas into one big project area, so that all the tax increment flows into one place. But now there's a problem. Beginning this year, old redevelopment agencies that want to keep collecting their property tax increment past the existing cutoff date must start anew in finding "blight" in their project areas. Under the terms of SB 211, a bill carried by Sen. Tom Torlakson, chair of the Senate Local Government Committee, and signed by Gov. Gray Davis, these agencies also have to use the tighter definition of blight contained in the 1993 law that reformed redevelopment. This requirement means that agencies must make a legal finding that most of the project area is afflicted by both physical and economic blight – not just one or the other, as used to be the case. In a remarkable public admission, Susan Shick, the executive director of the San Jose Redevelopment Agency, has acknowledged that her agency cannot make the new blight finding. Most of the tax increment scattered in the 13-square-mile "merged project area" comes from industrial areas that are now thriving. (Indeed, the industrial areas account for about 95% of the Redevelopment Agency's domain.) Without a change in state law to assist San Jose, the tax-increment spigot will be turned off in San Jose – which both Shick and Mayor Ron Gonzales have said will mean an end to the city's affordable housing programs, among other things. All this may not seem like such a big deal, given the fact that it will be a while before the tax increment dries up. Even if San Jose is unable to make the blight finding, the city will probably be able to funnel tax increment to the agency until 2019. But in the world of redevelopment, 2019 is right around the corner. The reason is that redevelopment is a debt-driven business. Deals are planned and executed based on cash derived from bond issues. The bonds are usually issued for 20 or 30 years and the revenue stream to pay them back usually comes from the property tax increment the redevelopment agency receives. Under the Torlakson bill, if the redevelopment agency could make the blight finding, San Jose could funnel tax-increment to the agency for an additional 10 years – to 2029. But the agency has publicly admitted it cannot make that finding. So for the moment, San Jose has to gamble that Wall Street investors will be willing to buy bonds for which there is no certain revenue stream in the "out" years. In fact, San Jose is scheduled to test the market on January 8, when the agency will issue $350 million in bonds scheduled to mature in 2033. Most of the bond proceeds will go for a large downtown library, a downtown parking garage, and the "Strong Neighborhoods" initiative, which is one of Gonzales's highest priorities. How can San Jose issue bonds that mature in 2033 when the redevelopment agency acknowledges that – under current law – it can't collect property tax increment after 2019? There are a lot of reasons. Among other things, the redevelopment agency does have other sources of revenue. But the main reason may be that San Jose is gunning for a special exemption from the Torlakson bill – perhaps not in 2002, but sometime over the next few years. As the deadlines in the redevelopment law loom closer, several of California's largest cities have gone to the Legislature seeking such exemptions. San Francisco obtained certain exemptions in a bill passed in 2000. Oakland and Sacramento went to the Legislature last year seeking similar exemptions – which was one of the reasons Torlakson pushed the idea of "triggers" in his across-the-board legislation. But SB 211 is not likely to be the end of the matter. The big cities will probably return to the Legislature in the future. In San Jose's case, the city appears to be trying to strengthen its case in front of the Legislature. San Jose has an undeniable record of achievement in redevelopment – focused on downtown revitalization, construction of public facilities, and well-funded affordable housing programs. Admitting that they cannot meet the blight trigger in the Torlakson bill — and issuing more debt at the same time — will put more pressure on legislators to give the city an exemption. Also, Gonzales and other leaders in San Jose have cleverly lined up the support of the Santa Clara County Board of Supervisors. Counties are typically the most vocal opponents of redevelopment, because much of the property tax increment funneled to the redevelopment agency is diverted from the county's general fund. Last spring, however, Gonzales made a redevelopment deal with Jim Beall, the chairman of the Santa Clara County Board of Supervisors. Under the agreement, San Jose agreed to build approximately $200 million in capital facilities for the county between 2001 and 2014 – including, possibly, a new county health center and facilities improvements in mostly poor, unincorporated county "islands" around San Jose. The city also agreed to devote 20% of its capital funds to the county from 2015 to 2063 – assuming the redevelopment agency is still around at that time. The deal turned the county from a potential enemy into a probable supporter of a legislative exemption for San Jose. One of the problems with redevelopment has always been that blight is in the eye of the beholder. For the first time ever, one of those beholders has blinked and admitted that blight doesn't exist. Such an admission may create an historic opportunity to re-examine the real purpose of redevelopment – and of the blight finding – in stimulating investment in California's existing urban areas. Maybe the Legislature should take advantage of that opportunity, rather than simply succumbing to intense pressure to create a loophole for one admittedly admirable city redevelopment effort.

Landlords have won a takings case against the City of Santa Monica regarding the city's regulation of tenant deposits. The Second District Court of Appeal ruled that an ordinance requiring landlords to pay tenants 3% interest on security deposits was an unconstitutional taking. Although the city argued, in part, that the amount of money at stake was not enough to damage the landlords, the court said that $2.3 million was at stake, including about $1,500 for one individual plaintiff. "A small taking is still a taking," the court ruled. The court also rejected the city's argument that the case was not ripe because the landlords had not exhausted their administrative remedies. Santa Monica has a long and contentious history of rent control, but the city has successfully defended its regulatory system against numerous court challenges (see CP&DR Legal Digest, February 1999). In the case at hand, the court made it past one common obstacle to takings cases brought by landlords, namely, that the contested regulation promotes a legitimate government interest. The court held that the regulation of security deposits did not advance a government interest, and the court went to lengths to distinguish this case from rent control cases. In January 1999 — the same month that the state Supreme Court upheld its rent control ordinance in Santa Monica Beach Ltd. v. Superior Court, (1999) 19 Cal.4th 952 — the Santa Monica Rent Control Board adopted a new regulation requiring landlords to pay 3% simple interest every year on all security deposits held for at least one year. Under the new law, the city was required to review market interest rates at least every three years and make necessary adjustments to the required rate of return. Two months later, the Apartment Action Association and landlord Herb Balter filed a class action suit arguing that the new regulation was an unconstitutional taking. They argued that because banks were paying only 0.5% to 1.5% on deposited funds, the city was requiring landlords to subsidize a tenant investment. Los Angeles County temporary Judge Bruce E. Mitchell sustained the city's demurrer. But a unanimous three-judge panel of the Second District, Division One, overturned that decision. The appellate court ruled that the city does indeed have the authority to force landlords to pay tenants the interest earned on security deposits. However, the city "has not offered a legitimate reason for making landlords pay 3% interest on security deposits. … It is well settled that a regulation of property ‘effects a taking if it does not substantially advance legitimate state interests," Justice Robert Mallano wrote, citing Santa Monica Beach and Kavanau v. Santa Monica Rent Control Bd., (1997) 16 Cal.4th 761. "The Board has not offered any state interest, much less a legitimate one, for requiring landlords to pay 3% interest when banks are paying a lower rate." "When economic conditions cause banks to pay less than 3% on deposit accounts, as is the case today, a landlord should not become a tenant's cash cow," Mallano continued. The city argued on appeal that the case was not ripe because landlords had sought neither a general rent adjustment nor individual rent increases. But the court ruled that the issue at hand was not rent. " he law applicable to rent is fundamentally different from the law governing security deposits, largely because rent is the property of the landlord, and a security deposit is the property of the tenant," Mallano wrote. "In light of these divergent interests in ownership, we fail to see how an administrative process for setting rents is of any value in determining the rate of return a landlord can be required to pay on a security deposit." The court also rejected the argument that, if it sustained the takings claim, the court would be micromanaging rent control. The court held that the issue was quite narrow and was not as complex as the typical rent control case that has reams of information about operating costs, investment returns and local economic conditions. The Case: Action Apartment Association v. Santa Monica Rent Control Board, No. B146227, 01 C.D.O.S. 10394. Filed December 13, 2001. The Lawyers: For AAA: Rosario Perry, (310) 394-9831. For the city: Doris Ganga, Rent Control Board general counsel, (310) 458-8781.

The Ninth U.S. Circuit Court of Appeals has reined in the U.S. Fish & Wildlife Service's ability to issue "incidental take statements" under the Endangered Species Act. In a grazing case from Arizona, the court ruled that the Service can prepare the statements only when it is likely that a private landowner's activity will "take" an endangered species. The court also concluded that the Service's preparation of incidental take statements in a variety of grazing permit cases was arbitrary and capricious. In the one instance when the Service's preparation of an incidental take statement was justified, the court found that the statement itself was flawed. The case was filed by the Arizona Cattle Growers' Association in response to the Fish & Wildlife Service's action on applications by a variety of the association's members for grazing permits on federal "allotments" from the Bureau of Land Management. The Service concluded that the issuance of the permits was not likely to jeopardize the survive of 20 different endangered species and further concluded that the grazing would not adversely affect the species' critical habitat. Nevertheless, the Service did proceed to issue Incidental Take Statements for the 20 species – an action that imposed additional responsibilities upon applicants. Under Section 7 of the Endangered Species Act, an incidental take statement is an advisory opinion which specifies the impact of "incidental takes" – that is, a "taking" of endangered species in the process of engaging in otherwise lawful activities. It also specifies conditions that the applicant must follow. The conditions contained in an incidental take permit are part of the "safe harbor" provisions of the Endangered Species Act. Following the permit conditions protects the applicant from prosecution under Section 9 of the Endangered Species Act (the prohibition on incidental take without a permit); ignoring the permit conditions subjects the applicant to potential penalties under the ESA. In two separate U.S. District Court opinions in Arizona, federal judges ruled that in order to issue an incidental take permit, the Service had to provide evidence of a listed species' existence on the land and show that "a take has occurred or is reasonably certain to occur." Before the Ninth Circuit, the Fish & Wildlife Service put forth a new argument: that it should be permitted to issue an incidental take permit "whenever there is any possibility, no matter how small, that a listed species will be taken." The cattle growers association argued that the Ninth Circuit should not consider this argument because it was put forth for the first time on appeal. The Ninth Circuit considered the merits of the new argument anyway – but ruled against the Fish & Wildlife Service and for the cattle growers. "As we believe that Congress has spoken to the precise question at issue, we must reject the agency's interpretation of the ESA as contrary to clear congressional intent," wrote Judge Kim McLane Wardlaw for a three-judge panel of the Ninth Circuit. Wardlaw went on to say that "the plain language of the ESA does not dictate that the Fish & Wildlife Service must issue an Incidental Take Statement irrespective of whether any incidental takings will occur." Quoting the legislative history from the House debate over the "safe harbor" provision in 1982, Wardlaw wrote: "If the sole purpose of the Incidental Take Statement is provide shelter from Section 9 penalties, as previously noted, it would be nonsensical to require the issuance of an Incidental Take Statement when no takings cognizable under Section 9 are to occur." She further criticized the Fish & Wildlife Service's internal handbook as misinterpreting the law. The court found that the Service's issuance of an incidental take statement was "arbitrary and capricious" in the case of six of the seven permits contained in the underlying two lawsuits. In the seventh case – involving the loach minnow and spikedace (two species of endangered fish), and grazing allotments along the Blue River in Apache-Sitgreaves National Forest – the Ninth Circuit found that the Service had made a case that the species could be harmed by the grazing and the issuance of an Incidental Take Statement was therefore justified. However, the court concluded that the Service's implementation of the Incidental Take Statement in that case was arbitrary and capricious because the service did not "properly specify the amount of anticipated take" and failed "to provide a clear standard for determining when the authorized level of take had been exceeded." The Cases: Arizona Cattle Growers' Association v. U.S. Fish & Wildlife Service, Nos. 99-16102, 99-16103, 00-15322, 00-1511, 01 CDOS 10416. Filed December 17, 2001. The Lawyers: For Arizona Cattle Growers Association: Jay Shapiro and Norman James, Fennemore Craig, (602) 916-5366. For U.S.: Fish & Wildlife Service: Lois J. Schiffer and M. Alice Thurston, Department of Justice Environment and Natural Resources Division, (202) 514-2000.

The Fourth District Court of Appeal has cleared the way for a ballot initiative regarding the future of the former El Toro Marine Corps Air Station to appear on the March ballot. The appellate court overturned a trial court ruling that allowed opponents of the initiative to contest the county counsel's title and summary of the initiative prior to the measure qualifying for the ballot. The unanimous three-judge appellate panel held that only proponents of an initiative could challenge the title and summary prepared by the county counsel prior to the measure qualifying for the ballot. " he proponent of an initiative is entitled to seek signatures in order to have the proposed legislation qualified for the ballot, subject only to the tempering effect of the county counsel's impartial title, and is not required as a condition to seeking signatures to also obtain the approval of its title from those opposed to the measure," Justice Alex McDonald wrote for the court. The Marine Corps closed El Toro — a 4,700-acre airfield lying mostly in unincorporated Orange County — in 1999. Reuse of the base as an airport has been the subject of three initiatives since 1994. In 2000, airport opponents drafted a ballot measure that would repeal a 1994 initiative that designated the base for development of a civilian airport, and instead earmark the property for a "great park," a university and office space. Allan Songstad and other airport opponents submitted their initiative to the county, and the county counsel's office prepared a title and summary. The measure's backers then began collecting petition signatures. However, former county supervisor Bruce Nestande and his pro-airport organization, Citizens for Jobs and the Economy, filed a lawsuit contending that the county counsel's title and summary were false, misleading and not impartial. Nestande asked the court to order preparation of a new title and summary and to block the Registrar of Voters from accepting signed petitions with the contested titled and summary. Orange County Superior Court Judge James Gray ruled that the title and summary were inadequate and misleading, and he granted Nestande's requests. The Fourth District stayed Gray's order and then took up the case. The appellate court ruled that Nestande did not have standing to challenge the title and summary so early in the process. The court said that Election Code § 9106 is clear: Only a proponent may sue to have a ballot title and summary amended prior to the measure qualifying for an election. In 1980, the Legislature approved Election Code § 9190, which allows any voter to challenge ballot materials after a measure has qualified for the ballot. In 1987, the Legislature enacted § 9106, which allows only a proponent — not any voter — to file a prequalification challenge to the title and summary. The court held that the Legislature must have made a conscious choice to restrict challenges prior to a measure qualifying. Nestande argued, among other things, that the Legislature required the preparation of an impartial title and summary to avoid misleading voters who are asked to sign a petition. Under the appellate court's reading of the law, the Legislature's intent would be undermined, particularly in instances where county officials support a ballot measure, Nestande argued. But the appellate panel rejected that argument, ruling that proponents have a right to pursue an initiative. "Furthermore, the opponents of an initiative have postqualification standing to challenge the title and summary that are included in the ballot materials before the public vote on the initiative," McDonald wrote. The Case: Songstad v. Superior Court, No. D038503, 01 C.D.O.S. 9884, 2001 DJDAR 12301. Field November 21, 2001. The Lawyers: For Songstad: Robert Thornton, Nossaman, Guthner, Knox & Elliott, (949) 833-7800. For Nestande: Frederic Woocher, Strumwasser & Woocher, (310) 576-1233.

Planners talk a lot about plans – and a lot about implementing plans – and a lot about projects. But they rarely talk about the relationships among all these things. A new study of Ventura County by Solimar Research Group and the Reason Public Policy Institute (RPPI) attempts to make this connection by examining what happens to "the best-laid plans" when projects are actually proposed and approved. The answer is not surprising: No matter what the plan says should be built, in the end, the approved project is usually a lot smaller. The Solimar/RPPI study was an attempt to determine whether Ventura County is likely to accommodate future housing demand within the urban growth boundaries adopted as part of the Save Open space and Agricultural Resources (SOAR) initiatives of 1998. The study examined the capacity for new housing development in the county under existing general plans and existing (or draft) housing elements. Not surprisingly, the capacity was not very large. In a county that currently has about 250,000 housing units, the additional capacity appears to be somewhere between 40,000 or 50,000 units – approximately a 15% to 20% increase. But the study also tried to link plans and implementation by examining what happens in the actual project approval process. This link between planning and implementation has almost never been examined. In fact, to the best of anybody's knowledge, only one previous study has been done – a study in Portland in the late '80s, which found that single-family projects were approved at 66% of planned densities, while the figure for multi-family projects was 90%. The Ventura County study found some similar results – a pretty dismaying prospect for practicing planners who believe in general plans. To conduct the analysis, Solimar and RPPI looked at 126 different residential projects that had gone through the approval process in nine different cities in Ventura County between 1996 and 2001. The important findings: * On average, residential projects were approved at about 55% of general plan capacity. The general plan capacity for the 126 projects was about 22,000 units. The approved projects totaled about 12,000 units. * Compared to actual zoning and specific plan capacity, projects were approved at about 80% of capacity. Capacity under zoning and specific plans (as opposed to general plans) was about 15,000 units. * Most surprisingly, almost all the difference between the plan and the project approval did not occur in the public approval process, but in the pre-application stage. All told, the 126 project applicants applied for only about 12,500 units – 56.8% of general plan capacity. The public review process only knocked out another 500 units, or 4% of the total general plan capacity. * However, it's interesting to note a few exceptions to the rule. Affordable housing projects and multi-family projects tend to be approved at close to plan densities – as do residential projects in specific plan areas. So what's happening? The researchers could not say for sure, but it seems likely that the developers bring in projects at well below general plan capacity based on conversations with the staff planners, who provide their best guess as to what the political tolerance for the project is likely to be. Interestingly, the planners' best guesses appear to be almost exactly on target – as the project for which developers apply is almost always what gets approved. These research results raise a troubling question for "smart growth" advocates. The smart growth ideal is to channel development into designated areas and, therefore, rearrange development rather than suppress it. But, clearly, Ventura County has only half of the equation. Its planning policy channels growth into specific areas through the use of urban growth boundaries, but actual planning implementation inside those boundaries is reducing housing densities. The entire Solimar/RPPI report can be downloaded from www.solimar.org or www.rppi.org.

As early as February, the Redondo Beach City Council could adopt a specific plan for about 150 acres of waterfront real estate that planners believe could become a new downtown. The "Heart of the City" specific plan envisions a broad mix of stores, offices, apartments, townhouses, live-work flats and parks in a part of town that has been dominated by a huge power plant and cut off from the ocean. For many years, Redondo Beach has been a "beach town" in name only. While nearby Hermosa Beach and Manhattan Beach have evolved as desirable, funky beach towns, Redondo never really had a chance. Redondo Beach's original downtown near the coastline was demolished in the name of urban renewal during the 1960s. Large, boxy structures, including the Civic Center, replaced the organic downtown, and the city essentially turned its back on the beach. The historic harbor is practically cut off from the rest of town. "It's a site that has been victimized by poor planning practices," said Michael Freedman, of Freedman, Tung and Bottomley, whom the city hired as a specific plan consultant. "It's not what you would expect to find in such a lovely setting." But while Redondo may lack a beach town vibe, it does have what Planning Director Bill Meeker calls "a once in a lifetime opportunity" to remedy the situation. About three years ago, AES Corp. announced that it planned to downsize its huge power plant along the coast in Redondo Beach and redevelop about half of the 50-acre site. Public and private planners immediately began considering suburban-style big-box centers for the site. As they got further into reviewing things, however, city officials realized they had a chance to address not only the AES site, but also the waterfront itself, which Meeker describes as "17 1/2 acres of asphalt parking with a smattering of retail." The city brought in the Urban Land Institute's Advisory Services Panel to review the situation and present some options. The ULI found that Redondo Beach was not benefiting from its waterfront as much as its neighbors were. The ULI found that there was little activity along the waterfront, that the waterfront lacked a sense of place and that the primary north-south thoroughfare was unfriendly to both pedestrians and automobiles. "Public investment and private development in the study area have occurred only incrementally and intermittently over the years," the ULI report stated. "Consequently, the whole is not equal to the sum of the parts." "The ULI," said Freedman, "provided a great boost in terms of helping the community understand that they could get investment and that they needed to focus on more than just the AES site. They totally raised the bar as far as what the community could expect." After the ULI issued its report in March 2000, city officials decided to pursue a specific plan for a district, of which the AES property is only a small part. City officials brought in Freedman's San Francisco-based firm and together they designed a process that leaned heavily on public involvement. During the later half of 2000, Freedman conducted four public workshops, each of which attracted more than 300 people. He also organized a number of meetings with stakeholders. Last April, the city released a draft plan. It did not necessarily match the ULI's recommendations, but instead built on the concept of creating a vital city core. City planners then began an extensive outreach and educational program, Meeker said. Planners met with stakeholders, civic groups and all 18 city commissions. The city also maintained a detailed website that contained every public document from the process. Later in the year, planners conducted several public workshops on the Heart of the City specific plan for the Planning Commission "This is probably the most ambitious and most open planning process the city has ever undertaken," Meeker said. Despite the publicly driven process, naysayers remained. When the specific plan and an environmental impact report reached the Planning Commission for a formal public hearing in December, dozens of people raised questions and spoke in opposition. The essence of their complaint is that the plan would allow too much development in too small an area. Residents contended that the plan would allow housing development that is too dense, would bring too much traffic to town and would not provide enough parking. Some people also complained that they did not have time to review all of the documents. Freedman conceded that the project has been "very, very frustrating" because it has been so hard for the community to reach consensus. Except for the specific plan area, Redondo Beach is a built out community, and its residents have conflicting desires, he said. The plan divides the area into districts � three waterfront districts, the "Catalina corridor" and public space along the water. The waterfront districts are all mixed-use areas, with a concentration of businesses related to the adjacent harbor. Two waterfront village core areas emphasize ground floor retail, restaurants, professional services, and arts and civic facilities. The Catalina corridor is the primary residential district, with multi-family residences, offices and neighborhood-serving commercial uses allowed. The plan envisions Catalina Avenue as a "grand boulevard" with wide sidewalks and extensive landscaping. At full build-out, the plan would allow about 600,000 square feet of commercial and office space, and approximately 3,000 new residences. Development would occur on vacant infill sites and on real estate that has already been developed but is underutilized. The plan details several parks, greenbelts and access points to the water. Currently, The Strand, a popular multi-use pathway that runs for many miles along the beach, is interrupted in the specific plan area. The plan calls for forging a connection, which Meeker thinks is essential. "Right now, people just don't have the feeling that they can use The Strand to visit Redondo Beach because they have to go out onto Harbor Drive, and they feel they conflict with traffic there. So they end up turning around and going back to Hermosa Beach," Meeker said. The activity level that The Strand represents is exactly what Redondo Beach officials seek for their new downtown. "We're trying to create a very pedestrian-oriented atmosphere here � create public passageways down to the waterfront. A number of the south bay cities are older cities and don't have that opportunity," Meeker said. Freedman and officials insist that the specific plan does not intend to turn Redondo Beach into a tourist zone. The district is designed with locals in mind. "They lost their downtown and they want to get that back at the waterfront," Freedman said. The City Council is scheduled to begin considering the Heart of the City specific plan in February. Once the council adopts the plan, it will go to the Coastal Commission for approval. The city does not have a certified local coastal plan. The Heart of the City specific plan will to the Coastal Commission as part of a proposed LCP, Meeker said. Coastal Commission review could take some time. Contacts: Bill Meeker, City of Redondo Beach, (310) 318-0637. Michael Freedman, Freedman, Tung and Bottomley, (415) 291-9455. Heart of the City website

Riverside County officials are scheduled to start rolling out draft plans and environmental impact reports in February as one of the most ambitious planning efforts in California history reaches the homestretch. County officials vow that they will complete their integrated planning process and the Board of Supervisors will adopt a new general plan, transportation plan and habitat plan before the end of this year. If supervisors do adopt all three plans, it would culminate a $32 million, 3 1/2-year planning process. The combined plans are intended to let the county accommodate another 20 years worth of rapid growth, in part by outlining more than $10 billion worth of investment in transportation and habitat projects. "We can see the goal line. We're still pounding out yardage inch by inch," said Supervisor Tom Mullen, who receives most of the credit for starting the Riverside County Integrated Plan. County planners, consultants and interest group representatives have put in untold hours since the planning effort began formally in mid-1999. Simply coordinating the process has been an enormous task (see CP&DR, February 2000). There have been hundreds of publicly noticed committee meetings and thousands of internal meetings involving several hundred participants. Planners have tried to remain on schedule, but the timetable has slipped by several months, and some people worry that the process could stall later this year when the plans reach the Board of Supervisors. Indeed, critics are making themselves known. Various cities have gripes with aspects of all three plans, builders worry that the plans are setting the stage for the imposition of stiff impact fees, and environmentalists say the general plan encourages inefficient development. Plus, there is some concern that average citizens have not paid much attention so far and could protest portions of the plans during public hearings later this year. "The biggest frustration is with keeping the general public informed," said Edwin Studor, who is managing the transportation planning for the county. "At the present time, it seems like very few people know this is going on, and it's really important." The same goal ties together the three plans: accommodation of about 1.2 million more residents in western Riverside County — nearly a doubling of the current population. The land use plan is mostly a suburban model that continues to permit large tracts of single-family homes. But it does designate about a dozen community centers where the county would allow development dense enough to support public transit. The transportation plan is supposed to establish a few new transportation corridors so that the county can begin protecting potential alignments from urban encroachment, and pursue new freeways, express bus lanes and rail lines. The habitat plan mitigates the impacts of the home building and transportation projects by designating areas for about 500,000 acres of permanent open space. Officials hope the habitat blueprint ends the piecemeal approach to endangered species and habitat issues. "Riverside County is being asked to pick up the tab for all that wasn't done with the environment, with infrastructure and with housing elsewhere in the basin," Mullen said. Growth projections Mullen began laying the foundation for the RCIP in 1996, when he started talking with county and regional planners, state officials and even Clinton administration appointees. After seeing the growth projections for Riverside County, Mullen decided the county needed to get serious about increasing its transportation capacity because most freeways in western Riverside County were already jammed. But he also believed that any major public works plan had to consider environmental factors up front — not at the end of the process, as is typical in California. As his meetings progressed, Mullen heard more and more complaints about the county's general plan from both builders and environmentalists. Eventually, it became clear — at least to Mullen — that the only option was to prepare three plans at the same time. In mid-1999, the Board of Supervisors, county planners, a host of consultants and scores of "stakeholders" started work on the Riverside County Integrated Plan (RCIP) for the western end of the county. After completing a community visioning process in late 1999, planners approached the RCIP with some significant assumptions that have received little challenge: Riverside County would continue to grow rapidly, with its population almost doubling to nearly 3 million between 1999 and 2020; many western county cities would remain bedroom communities for job centers in Los Angeles and Orange County; homes for workers in new Riverside County commerce centers would lie even farther east; and some major new regional freeways were needed. While, the RCIP is something akin to statewide plans found elsewhere, there is no comparable model for the county to follow, said Richard Lashbrook, director of the Riverside County Transportation and Land Management Agency. "I think it's going well in terms of moving through the process," Lashbrook said. "It's just amazing to me the amount of work and amount of time it takes to get through portions of the effort, especially when you have to deal with other agencies — state and federal — cities, stakeholders groups." Mullen and other county officials have insisted that stakeholders drive the process, and the interest group representatives who have participated in the three large advisory committees say that county has kept its word. Stakeholders were the source of many concepts in all three plans. The land use plan Riverside County's 18-year-old general plan satisfies almost no one, partly because the plan has no land use map. The existing plan contains more than 200 different land use designations, making interpretation difficult for staff members, developers and the public, said Jerry Joliffe, who is heading up the general plan portion of the RCIP. Furthermore, county supervisors began repeatedly amending the plan almost as soon as they adopted it. The new plan will have more certainty, Joliffe said. The foundation components of the draft land use plan are suburban-style development areas, rural areas with small ranches, and agricultural land and open space, Joliffe explained. The draft plan does not call for definite boundaries — nor does it use the terms "growth boundary" or "limit line" — between the three components, but the proposal allows supervisors to make amendments only every five years. "We want to make sure we have edges between these communities," Joliffe said. Single-family homes on 7,200-square-foot lots have dominated Riverside County development for years. The draft plan seeks to boost density in about a dozen community centers called "transit oases" by offering developers density bonuses in exchange for architectural features, public amenities, and higher fees to fund open space purchases elsewhere. The draft plan also contains a transfer-of-development-rights program that would allow landowners to shift development potential away from rural areas, or to form small development clusters in rural areas. "Our plan is not one that limits growth," Joliffe emphasized. "We want to make sure we are going to manage that growth to the best of our ability." Thus far, builders have voiced support for the draft plan because it provides them with more certainty and provides many acres for future subdivisions. Environmentalists also like the certainty, but they would like to see less emphasis on large housing tracts. "My gripe," said Dan Silver, of the Endangered Habitats League, "is that there is still too much low-density development planned." Some cities, especially those along the Interstate 215 corridor, have also complained about the large-scale development that would be allowed in unincorporated areas near cities. The cities say the county should discourage development approvals if property is not annexed to a city, and that any development the county permits should meet city standards for streets, sewer, water and lighting because a city will likely end up annexing the area eventually. The county's continued approval of large subdivisions during the RCIP process has compounded environmentalists' and cities' concerns. The county has approved numerous large tracts since 1999, including of the county's largest ever in December — a 4,600-parcel subdivision in French Valley, several miles east of Murrieta. The county now has approximately 100,000 approved single-family parcels awaiting development. The transportation plan The emerging transportation plan is the result of CETAP — the Community and Environmental Acceptability Process. The idea is to settle on wide transportation corridors for freeways and transit systems. County officials want to preserve as much right of way as possible. They also hope to designate new regional routes for freeways linking western Riverside County with other parts of the metropolis. Studor, of the county's transportation and land management agency, said CETAP is the right approach. "The way land use planing and habitat planning occurred in the past is, you come up with the land use plan. And after you adopt that, oh, by the way, we'll need to do some transportation planning. And everything left over is open space, so that's habitat," Studor said. In this case, transportation planners have modeled their work on the likely built environment as of 2020. During modeling, planners learned that various growth alternatives did not significantly affect freeway demand within the county, nor needed freeway and transit services to job centers outside the county, Studor said. During the CETAP, planners and stakeholders produced a list of potential routes and have been refining the options so that there is one new east-west corridor, a new north-south corridor and one new link to San Bernardino and Orange counties, respectively. In December, the Board of Supervisors endorsed a corridor linking Moreno Valley in Riverside County with Redlands in San Bernardino County via a tunnel through Box Mountain east of Riverside. But while San Bernardino County has been willing to cooperate, Orange County has not. And one thing Riverside officials desperately want is a route through the Cleveland National Forest to Orange County. Currently, Highway 91 is the only freeway connecting the counties, and during the 1990s it became one of the most congested in Southern California. Supervisor Mullen conceded that any route over — or boring through — the mountains separating Riverside and Orange counties is controversial, but he believes the two sides can resolve their differences. City of Corona Planning Director Brad Robbins agrees with Mullen on the need for a new route to Orange County. Surface streets in Corona, on the far western edge of Riverside County, get flooded with commuter traffic daily as motorists seek alternatives to the 91 freeway. But when Robbins looks at the draft transportation plan, all he sees are more routes into Corona from the east — and no way to move people farther west. Barry Burnell, of T&B Planning, who has represented landowners and developers during the RCIP process, said Riverside County must solve its intra-county transportation issues as well as the regional congestion that has become a plague. But Burnell said it makes more sense to add regional transit to existing freeway corridors, such as the 215 and the 10, and provide links to new local transit, than to build a new contiguous system of freeway and transit. Burnell's biggest concern, however, is funding. The county plans to seek voter approval later this year for extension of a half-cent transportation sales tax that is due to expire in 2008. Such a tax would let the county leverage state and federal funds, but everyone agrees the sales tax override will not be enough to fund a system that could cost at least $9 billion to build. The draft plan will call for uniform transportation impact fees to be assessed by the county and the cities. That will be a political fight planners alone cannot settle, Lashbrook said. And it's a fight that Burnell vows to take up. Developers are willing to help, but they will not pay a disproportionate share, he said. The habitat plan The Multiple Species Habitat Conservation Plan (MSHCP) might be the most ambitious aspect of the RCIP. The draft plan involves up to 164 species and preserves about 510,000 acres of land — making it the largest MSHCP in the country, according to Christine Lovelady, the county's lead planner for the habitat plan. Endangered species have been the most controversial land use issue in Riverside County since the 1980s, partly because local elected officials have been reluctant to change their pro-property rights approach. After the federal government declared the Stephens kangaroo rat an endangered species in 1988, local officials refused to take a broad approach to species planning (see CP&DR, April 1996, December 1994, September 1994). Instead, city and county officials spent nearly eight years writing a conservation plan for the "K-rat" — only to have the joint powers authority that created the plan quickly fall apart. In the meantime, environmentalists and regulatory agency scientists have sharpened their focus on endangered species issues in Riverside County. The emphasis comes partly because similar habitat in Los Angeles County was wiped out by post World War II development that never considered plant and animal habitat. The MSHCP would serve as mitigation for the urban development and transportation projects encompassed by the other plans. The plan will maximize use of land already owned by the public, offer incentives such as fee credits and density bonuses to direct development away from sensitive locations, and focus on willing sellers, Lovelady said. The draft plan outlines large "envelopes" that contain candidate land for species protection. "It is an understandable compromise that provides more certainty than we've had in the past," Lovelady said. State and federal regulators and biologists have participated a great deal in the habitat planning process, giving the plan a strong scientific basis, said Lovelady. She believes environmentalists should get behind the draft plan because it provides big chunks of land, which should attract state and federal dollars. Silver, who has been involved in environmental issues in Riverside County for years, expressed some concern about the voluntary nature of the MSHCP. But he said the proposed uniform mitigation fee combined with state and federal funding could provide enough money to carry out the program. "It's been an extremely difficult process to work in because of the strong property rights atmosphere," said Silver, who is a member of all three advisory committees. While landowners have expressed concerns about the habitat plan, city officials could pose an even bigger obstacle because they would have to impose a fee of potentially several thousand dollars per unit, and set aside land for habitat — policies that a number of cities have been fighting for 15 years. For example, the draft plan sets aside thousands of acres in the City of Beaumont's sphere of influence for habitat, but "there doesn't seem to be any consideration given to the loss of economic development options on developable land," City Planner Earnest Egger said. Furthermore, Beaumont has no interest in performing the detailed biological assessments for development applications, as required by the draft habitat plan, Egger said. The city has made the county something of a counter-offer but has been "largely ignored," he said. "They have done an absolutely horrible job of getting the cities involved and getting issues resolved," Egger said. "They've tried to strong-arm the cities at the last minute without any of the underlying issues ever getting resolved." Supervisor Mullen, however, defended the county's outreach to cities, and planners pointed to the countless public meetings regarding the MSHCP. "Are we working toward solutions? Yes," said Mullen. "The cities understand what's at stake. I'd say we're probably 80% of the way there." Burnell, the property rights man on all three advisory committees, said an MSHCP that provides a method for preserving land and a related program for ongoing funding is one of his priorities. "We've identified a need to house another 1.2 million people in the next 20 years in western Riverside County. If we have to go duke it out with the environmentalists and the NIMBYs over every project, we're not going to get very far," Burnell said. A complicated process To the general public and elected officials, a planning process that lasts three years sounds like a long one. But to planners involved in the RCIP, three years seems awfully short. "You want to have all of these people involved — that's great. But it makes it hard to get business done," said Lashbrook, the county's top planner. "At some point, and we're getting close to that point, you have to finish. And sometimes finishing means you have to narrow the number of people involved." The "integrated" aspect of the RCIP requires that the 12 cities in western Riverside County — as well as some neighboring counties — jump aboard the bandwagon. Yet such regional agreement appears uncertain. "The idea and the concept are good," said Beaumont's Egger, "but just how they've gone about the process has not been the best." "It's really a good idea," added Corona's Robbins, "it just hasn't been sold right to use or any of the cities. … Ultimately, if we don't agree with any of it, we don't have to do any of it." Silver, of the Endangered Habitat League, is concerned about these turf battles. "The cities' nonparticipation is the biggest flaw in this so far," he said. Mullen has heard the carping but appears determined to see the project through. "We've got the opportunity to do something right — not perfect, but right," he said. Contacts: Tom Mullen, Riverside County supervisor, (909) 955-1050 Richard Lashbrook, Jerry Joliffe, Christine Lovelady, Ed Studor, Riverside County Transportation and Land Management Agency, (909) 955-6800. Dan Silver, Endangered Habitats League, (323) 654-1456. Barry Burnell, T&B Planning, (714) 662-2774. Earnest Egger, City of Beaumont, (909) 769-8520. Brad Robbins, City of Corona, (909) 736-2262. RCIP website: http://www.rcip.org/

Farmland preservation, urban sprawl, economic development and long-range planning have collided in the City of Gilroy. Officials are working toward designating 664 acres of tomato fields for high-tech, campus-style development, but opponents of the idea say the city should concentrate on 1,200 acres already designated for industrial growth. What is known as Gilroy's "660 plan" has become a divisive issue in this town of 42,000 people about 25 miles south of San Jose. During the November City Council voters elected two supporters and one opponent of the industrial proposal. The election gives the 660 plan 5-2 backing on the City Council. Despite the apparent political support for the industrial designation, the controversy remains hot, as the Santa Clara County Local Agency Formation Commission is raising questions about what some people see as needless conversion of farmland. "We believe this is fundamentally an argument over where jobs should be located," Mayor Tom Springer said. The argument also encompasses what types of jobs Gilroy should have. For decades, farming has dominated this community along Highway 101 at the upper end of the Coyote Valley. The town has become known as the garlic capital, and its garlic festival attracts tens of thousands of people every year. During the last 20 years, however, Gilroy has evolved into more of a bedroom community, and an estimated 8,000 people now commute from the Gilroy area to Silicon Valley. About 10 years ago, a county task force produced a report recommending ways to keep agriculture alive in the Gilroy area. The plan emphasized "vertical integration" projects that involve food processing and packaging, in addition to the growing of crops. In 1996, the city, the county and LAFCO approved an agreement designating 20-year agricultural boundaries. In exchange for the city's keeping urban development within those boundaries, LAFCO agreed to look favorably on Gilroy annexation requests within the boundaries, according to Neelima Palacherla, LAFCO executive officer. This is where the 660 plan gets sticky because the land involved lies outside the boundary. In fact, Gilroy officials did not get serious about changing the designation of the site until they were nearly three years into a General Plan update and had already released a new draft plan. One of the primary reasons for updating the 20-year-old general plan is to increase the amount of property designated for industrial growth, Planning Division Manager William Faus said. After reviewing the draft general plan in late 1999, the City Council sent planners back to work on a revision that reconsidered 664 acres just east of Highway 101, next to a thriving factory outlet center along the freeway The city's 42-member General Plan Update Committee divided over whether the site was appropriate for industrial development. Eventually, 24 members signed a letter opposing the proposed industrial land use designation — what became known as the 660 plan. When a majority of councilmembers indicated support for the 660 plan during public hearings for the general plan during spring of 2001, committee members said they felt betrayed. By the time of the fall City Council campaign, the 660 plan dominated most political discussion, and the election became a referendum on the idea, said Mayor Springer, who contended that most opponents were out-of-town environmentalists. Voters choose industrial development when they elected 660 plan supporters Craig Gartman and Robert Dillon, and tossed out incumbent Lupe Arellano, who opposed the plan. Nine-year incumbent Charles Morales was the only plan opponent to win in November. Springer said the site is perfect for campus-style development because it is right next to the outlet center, and open land to the south is already zoned for development. The site is within 300 feet of a sewer trunk line and a city well sits on the edge of the property. "It isn't like this is land off to one far side of the city. It is within not only the sphere of influence, but within a stone's throw of the City of Gilroy," Springer said. Moreover, the site is a large block of undeveloped land with only about a dozen owners, so the city would not have to assemble multiple small pieces to attract a big developer, Faus said. But Morales said the 660 plan amounts to "urban sprawl" and is premature. "To me, it doesn't make sense. Let's develop what we have right now," he said. The city already has about 1,200 acres designated for industrial development, and Silicon Valley tech companies have shown little interest in reaching that far south. No one is sure what the demise of Cisco System's proposed Coyote Valley campus means for Gilroy, but it is another indication that the tech building boom is on hold, at least for now. (Cisco had proposed a 6 million-square-foot campus in southern San Jose, less than 20 miles from Gilroy, but the company bailed out of the project late last year because business was so bad.) "The vacancy rate is very high right now, especially with the economy we are in," Morales said. In mid-December, the LAFCO board authorized Palacherla to send a letter to Gilroy outlining concerns about the 660 plan. The LAFCO board did not take a formal position, but, according to the letter, the plan does appear to conflict with the 1996 farmland agreement among the city, LAFCO and the county. The site is prime farmland within the agricultural preserve and much of it lies within the 100-year floodplain, she explained. "The city has well over 40 years worth of vacant industrial land within its city limits," Palacherla said. Springer said there is no reason for LAFCO to get involved now. The city has not filed an annexation request — and probably will not for at least 10 years, he said. He did concede that the site has both flooding and traffic constraints. About one-third of the property would have to remain undeveloped because of potential flooding, and resolving traffic impacts from the build out of a 5,000-employee campus would cost about $140 million, the mayor said. City officials are simply trying to get in position to attract Silicon Valley-type jobs in the future, because Gilroy cannot make it as only a farm town or a commuter village, Springer said. But Morales said if there were strong market interest in building a large tech campus in Gilroy, developers would manage to assemble the needed properties from the existing inventory, he said. The Gilroy City Council is likely to make a final decision on the revised general plan — including the 660 plan — and an associated environmental impact report later this year. Contacts: Tom Springer, Gilroy mayor, (408) 846-0202. Charles Morales, Gilroy councilman, (408) 846-0400. William Faus, Gilroy planning division, (408) 846-0440. Neelima Palacherla, Santa Clara County LAFCO, (408) 299-5127.

The Interior Department did not need to prepare a programmatic environmental impact statement before proceeding with water transfers in western Nevada, the Ninth U.S. Circuit Court of Appeals has ruled. The court further held that the EIS which the U.S. Fish & Wildlife Service did complete adequately assessed cumulative impacts to groundwater and farming. Writing for the unanimous three-judge panel of the Ninth Circuit, Judge Richard Paez said that the court should not "fly-speck" the work of the Fish & Wildlife Service and argue that the agency could have done things differently. "As with the programmatic EIS discussed above, if we were preparing the EIS, we might insist on additional detail," Paez wrote. "That is not our role, of course. Rather we review the legal sufficiency of the EIS." And, the court held, the document was legally adequate. At issue in the case is use of the Truckee and Carson rivers, which has been the subject of political and legal contention for about 90 years. Indians, farmers, cities, utilities and the federal government have all fought over the water rights. In 1990, Congress passed the Truckee-Carson Pyramid Lake Water Rights Settlement Act to address comprehensively the loss of wetlands in western Nevada, the health of Pyramid Lake on the Paiute Tribe reservation north of Reno, and the endangered cui-ui fish that lives in Pyramid Lake. Essentially, the Settlement Act calls for providing more water to the lake and to wetlands in Nevada's Lahontan Valley that have been shrinking for many years. The Fish & Wildlife Service studied four strategies for acquiring water rights and a "no action" alternative. The agency settled on a plan to purchase 55,000 acre-feet of water from willing sellers in the Carson Divide, which the agency would add to already-acquired water rights from other sources. In September 1996, the Fish & Wildlife Service published a final EIS on water rights acquisition for Lahontan Valley wetlands in Churchill County, Nevada. Churchill County and the City of Fallon, Nevada, sued, arguing that the federal agency violated the National Environmental Policy Act. Federal District Judge Edward Reed initially ruled that the county and city lacked standing to file the suit, but the Ninth Circuit reversed that decision in Churchill County v. Babbitt, 150 F.3d 1972, amended by 158 F.3d 491 (see CP&DR Legal Digest, December 1998). The case then went back to Reed, who ruled that the Fish & Wildlife Service's approach to environmental review complied with NEPA. This time, the Ninth Circuit upheld the lower court. In his opinion, Paez recounted the history of the 100-year-old Newlands Reclamation Project, which diverted water from the Truckee and Carson rivers that had fed Pyramid Lake and tens of thousands of acres of Lahontan Valley wetlands. The federal government's dams and canals supplied the water to farmers. Over the years, the level of Pyramid Lake dropped about 40 feet, about 85% of the wetlands dried up and water quality in the remaining wetlands deteriorated. The Settlement Act was intended to reverse decades of environmental damage. Under its selected alternative for implementing the Settlement Act, the Fish & Wildlife Service was to acquire 55,000 acre feet of water rights from the Carson River, continue with acquisition of another 20,000 acre-feet, lease more water when available, purchase water rights upriver from Lahontan Reservoir, use treated wastewater as available, use water conserved by a U.S. Navy base, and pump groundwater near the wetlands. In all, the plan was intended to provide 125,000 acre-feet of additional water for environmental purposes. Churchill County and the City of Fallon argued that the Fish & Wildlife Service must prepare a programmatic EIS on the "cumulative and synergist impacts" of the Settlement Act's interrelated provisions. Churchill County and Fallon argued that the Fish & Wildlife Service was segmenting parts of the same program — such as the purchase of 55,000 acre-feet of water — so that the cumulative impacts would not be fully addressed. This would be a violation of NEPA. The Ninth Circuit agreed that "it would seem quite reasonable … for the responsible agencies to analyze the actions required under the Settlement Act and their cumulative impacts in one document." But, its failure to prepare such a document did not mean that the Fish & Wildlife Service acted inappropriately, the court held. "Although we can see that the Service's decision was a close call, the record does not support a conclusion that the agency's goal was to minimize the possible cumulative environmental impacts by segmenting the wetlands water rights acquisition program from the analysis of other foreseeable actions," Judge Paez wrote. "We cannot, as Plaintiffs may wish, sanction the use of NEPA's EIS requirements to challenge the policy goals served by the Settlement Act. … We agree with the district court that the Service took a ‘hard look' and that its decision not to proceed with a programmatic EIS was not arbitrary. The county and city also argued that the EIS did not adequately address the cumulative impacts, did not study impacts to groundwater and did not examine a reasonable range of alternatives. Both the county and the city were concerned that the plan would decrease water available for domestic and agricultural uses, especially if the diversions lowered water tables. But the appellate panel upheld the EIS as adequate. The document contained 15 subsections on 15 different parts of the overall water plan and summarized the cumulative impacts of the actions. The document also made clear that agricultural interests would suffer. And, the court ruled, the Fish & Wildlife Service's use of groundwater modeling allowed the agency to make an informed decision. The Case: Churchill County v. Norton, No. 00-15967, 01 C.D.O.S. 10468. Filed December 19, 2001. The Lawyers For Churchill County: Antonio Rossmann, (415) 861-1401. For Norton, Kathryn Kovacs, U.S. Department of Justice Environmental & Natural Resources Divisions, (202) 514-2000.