An appellate court has ordered the City of Concord's Rent Review Board to reconsider a request for rent increases filed by the owner of two mobile home parks. The case deals with the base year rental rates. The owner of the Diablo Mobile Lodge and the Adobe Mobile Lodge argued that its base year rates were so low that the parks lost money. The city's Rent Review Board disagreed. Contra Costa Superior Court Judge Barbara Zuniga ruled for the city, but the First District Court of Appeal overturned the lower court. The court remanded the case to the Rent Review Board for further consideration. The appellate panel ruled that "unique and extraordinary circumstances," including artificially low rents charged by the previous owner and a temporary rent increase moratorium imposed by the city, force the city to reconsider base rates. The case is Concord Communities, L.P. v. City of Concord, Nos. A091354, A091361, 01 C.D.O.S. 7748. It was filed on August 31, 2001.

CEQA AB 436 (Chan). Allows a focused EIR to be prepared in parts of the City of Oakland for certain urban infill, multi-family, residential developments, or residential and commercial projects, or retail mixed-use developments with not more than 25% of the total floor area used as retail space. AB 1419 (Aroner). Exempts from CEQA the development in San Francisco of a temporary bus terminal for the Alameda-Contra Costa Transit District. AB 1532 (Pavley). Requires a lead agency to call at least one scoping meeting for a project of statewide, regional or area-wide significance. SB 244 (Speier). Extends the public review period to 120 days for the draft EIR on the San Francisco International Airport expansion. General Plans AB 1367 (Wiggins). Establishes a meet-and-confer process between school districts and local governments to address long-range school-siting plans. AB 1553 (Keeley). Requires the Office of Planning and Research to include environmental justice matters in its general plan guidelines. SB 520 (Chesbro). Requires general plan housing elements to consider the needs of disabled people. SB 932 (McPherson). Extends by six months the deadline for jurisdictions in the Association of Monterey Bay Area Governments to complete updated housing elements. The new deadline is December 31, 2002. The bill also extends by six months the deadline for all local governments not otherwise specified in statute to update their housing elements. That new deadline is June 30, 2003. Housing AB 8 (Cedillo). Increases the amount of per-unit assistance available under the Department of Housing and Community Development's Downtown Rebound Program. The bill also requires the units to be in a school attendance area where at least 50% of students qualify for free meals. Signed by the governor. AB 369 (Dutra). Allows courts to award attorneys' fees against local governments that violate the anti-NIMBY law. Developers or housing advocates are eligible for receiving attorneys' fees after winning a lawsuit. Signed by the governor. AB 807 (Salinas). Extends the Farmworker Housing Grant program to include seasonal, migrant housing. AB 1359 (Lowenthal). Merges four existing predevelopment loan programs. The consolidated program will provide loans for technical and financial assistance to local government agencies and nonprofit corporations for predevelopment expenses incurred in the production or rehabilitation of affordable housing in urban and rural areas. AB 1611 (Keeley). Authorizes the California Educational Facility Authority to sign agreements with nonprofit entities to finance housing construction for students, staff and faculty near UC, CSU, community college and participating private college campuses. Also: SB 1209 (Romero). Enables the Authority's power offer tax-exempt revenue bonds for construction of faculty housing owned by private colleges. SB 73 (Dunn). Increases the State Low-Income Housing Tax Credit program by $20 million to $70 million a year, and indexes the program for inflation. SB 784 (Torlakson). Establishes the Jobs-Housing Balance Program within HCD as an on-going program, and allows local governments to use grants for any purposes. SB 1098 (Alarcon) prohibits cities and counties from extending beyond 45 days a moratorium on housing projects that have large multi-family components. A city or county could extend the moratorium only if it makes specific findings based on substantial evidence that the moratorium was the only way to avoid significant, quantifiable health and safety impacts. Gov. Davis vetoed a similar bill last year. Natural Resources ABX2 27 (Lowenthal). Authorizes the State Lands Commission to execute a contract with the City of Long Beach and any city contractor to provide incentives to explore and develop gas reserves in the Long Beach tidelands. Signed by the governor. AB 104 (Nation). Allows boards of supervisors in nine Bay Area counties to levy a vehicle registration fee of up to $4 to fund open space purchases, improve water quality and restore wetlands. AB 134 (Kelley). Allows the Castaic Lake Water Agency, which sells water wholesale, to provide retail water service to a specific area. AB 1207 (Longville). Gives cities and counties until April 15, 2002, to enact ordinances governing the development of power-generating windmills in non-urbanized areas. If a city or county does not adopt rules, a landowner may build a windmill by right. The bill also places restrictions on how much a city or county can regulate windmills. Redevelopment AB 212 (Correa). Requires the City of Tustin to give 100 acres of the former Tustin Marine Corps base to the Santa Ana Unified and Rancho Santiago Community College school districts. Signed by the governor. (See Deals, Page 12.) AB 237 (Papan). Requires the final offer of a public entity that is in eminent domain proceedings to include compensation for loss of goodwill. The bill also sets up a process for mediating eminent domain disputes. AB 637 (Lowenthal). Makes a number of changes to housing requirements in redevelopment law. The bill eliminates the January 1 sunset date for the 15% inclusionary housing requirement, mandates that redevelopment agencies leverage their housing spending with private and commercial financing, and require that housing units provided by agencies remain affordable for up to 55 years. AB 1567 (Runner). Allows the Lancaster Redevelopment Agency to satisfy the inclusionary housing requirement by purchasing long-term affordability covenants on mobile home parks. SB 32 (Escutia). Is a three-part brownfields bill. First, it enables local governments to order the investigation and cleanup of idle parcels of less than 5 acres. Second, it requires Cal EPA to conduct a peer reviewing of "screening numbers," which are advisory figures that provide rough estimates of what level of cleanup might be required before redeveloping a property for a particular use. Third, it requires Cal EPA to publish information helping local officials and developers to understand the factors and procedures the Department of Toxic Substances Control and regional water boards use when ordering cleanups. Others AB 93 (Wayne) creates the San Diego Regional Airport Authority. The new nine-member, appointed entity will have exclusive authority to plan, build and operate regional airports in San Diego County. The bill removes the Port of San Diego and the San Diego Association of Governments from the process of planning a new airport to replace Lindbergh Field in San Diego. AB 330 (Reyes). Allows cities that annex land covered by a Williamson Act contract to avoid Williamson Act restrictions on development. Vetoed by the governor. AB 545 (Steinberg) requires the state, when leasing, purchasing or constructing state government office buildings, to consider the availability of public transit, proximity to affordable housing, pedestrian access to retail businesses, and the need for an area's economic revitalization. The bill gives priority to use of buildings with historic, architectural or cultural significance. It also requires state-owned office buildings, when feasible, to include ground-floor retail or other amenities to serve pedestrians. The governor vetoed a similar bill last year. AB 1171 (Dutra). Calls for the state to pay 40% of the cost of earthquake retrofits of Bay Area toll bridges — about $820 million. The bill also extends a $1 toll surcharge until enough money is collected. AB 1495 (Cox). Alters the procedures for revenue neutrality calculations when new cities are proposed, and sets up new ways to handle appeals for city incorporations. SB 975 (Alarcon). Extends prevailing wage requirements to developments that receive subsidies of almost any sort, including fee waivers and reimbursements.

Like many types of affordable housing, farmworker housing has received a substantial boost during the last 15 months thanks to an unprecedented level of state spending. However, the picture for California's agricultural workers is not all bright because the state cash has arrived after many grower-provided housing units have closed. And local opposition to farmworker housing persists, even in communities that are primarily agricultural. For the 2000-01 fiscal year, the state earmarked $46 million for construction and rehabilitation of farmworker housing — about 10 times more than had ever been budgeted in a single year. Lawmakers also set a baseline of $18 million for future years, although that amount was reduced to $13.9 million in this year's adopted budget. The state did allocate $9.6 million to continue the process of rebuilding all 26 state-owned, seasonal migrant labor camps. Nonprofit agencies and local housing authorities are thankful to receive the money, but everyone involved says that more funding — and more funding sources —are required. "The need is so great out there," said Pat Dyas, manager of the Joe Serna Jr. Farmworker Housing Grant Program at the Department of Housing and Community Development. "We're doing everything that we can and it's great that we've got more money … but it's really just a drop in the bucket." Several factors hit farmworkers where they live. When the state began inspecting farmworker housing during the 1970s, some growers closed their labor camps rather than bring them up to code, said Peter Carey, executive director of Self-Help Enterprises in Visalia. A study released earlier this year supports Carey's observation. When asked about factors that discourage farmers from providing employee housing, about 70% of farmers who have closed their employee facilities cited "government requirements." That was an even greater factor than the cost of development. (The survey, "Operation of Farm Labor Housing in California," was conducted by the California Coalition for Rural Housing, the U.S. Department of Agriculture, the state Department of Housing and Community Development, and University of California, Davis.) At the same time growers were shuttering employee housing units, farmworkers were increasingly signing on with labor contractors. Thus, field hand and packing house employees lost their direct connection to farm owners and managers. During most of the 1990s, the provision of farmworker housing disappeared from the political radar screen. However, the election of Cruz Bustamante as lieutenant governor in 1998 and the flexing of muscle by the Legislature's growing Latino Caucus have helped return attention to the issue. In 1999, the Legislature approved a bill requiring local housing elements to identify adequate sites for farmworker housing. Additionally, some farmers, especially in the wine growing regions of Napa and Sonoma counties, have taken a more active role in providing shelter for their workers. All of these political and labor developments occurred while farmworkers became less migratory. Solid demographic information on California farmworkers is scant, but many experts say the age of migrant families has largely ended. Now, most families settle into communities. Migrant workers who chase the harvest are males in their teens through early 30s who are either single or who support a family in California, Mexico or Central America. Wine country workers In Sonoma County, growers by right can build farmworker housing on agricultural parcels of at least 10 acres. Projects that meet basic criteria do not require use permits and are supposed to receive administrative approval within one week, according to planners. The growers must pay for building permits, but the county waives all impact fees. This streamlined system has eliminated growers' excuses, said Bob Anderson, of the United Winegrowers of Sonoma County. Growers have built about 25 projects under these rules, according to Anderson. Some of the residences are essentially bunkhouses that accommodate from 18 to 38 single men apiece. The structures appear to be large barns, often well off the road and surrounded by vineyards. Growers fund the projects and charge residents only for utilities and laundry facilities. One grower has built four-plexes for families. The advantage of offering such accommodations is that labor crews remain in place for longer periods, Anderson said. The typical resident of these grower-provided accommodations stays for 10 months. In neighboring Napa County, winemakers have proposed creation of an assessment district to fund farmworker housing. Assembly Bill 1550 by Assemblywoman Patricia Wiggins (D-Santa Rosa) would allow the Napa County Board of Supervisors to establish a county service area to acquire, construct and maintain farmworker housing. The proposal allows the county to tax landowners up to $10 per acre of vineyard, so long as two-thirds of growers approve of the assessment. The proposal is the result of farmworker housing shortages during the late summer and early fall harvest, said Jeri Hansen, of the Napa Valley Vintners Association. The county Housing Authority operates three labor facilities that accommodate a total of 136 workers. But the vintners group estimates the county will need an additional 200 to 300 beds at harvest time within 5 years, Hansen said. The shortage is already so severe that during last year's grape picking season, the Housing Authority set up four-man tents to accommodate migrant workers, said Peter Dreier, agency executive director. This year, the Housing Authority has set up 10 four-man yurts — sturdy circular tents with vinyl floors. Vintners and grape-growers purchased the yurts, which have been erected on vacant county-owned land next to a public works yard outside Yountville. The Housing Authority charges $10 per day and provides three meals a day. The makeshift village includes two common yurts for meals and gatherings, portable toilets and showers, and a septic tank and leachfield — enough to meet Title 25 requirements for alternative housing, according to Dreier. Still, he said, "we see this as part of a temporary solution. What we like about them is that they can be put up at a location, then taken down and stored when not needed." The Vintners Association has subsidized labor camp operations through voluntary assessments and through partial proceeds from an annual wine auction. Not everyone has been willing to pay their fair share, Hansen said, although the recalcitrant growers have not opposed AB 1550 thus far. "It's a very targeted solution for Napa Valley," Hansen said, suggesting a CSA would not work everywhere. "Everyone needs to figure out there own way of meeting this challenge." State funding arrives For many years, the state budget contained $2 million to $4 million for farmworker housing. That amount shot to $46 million during the last fiscal year, when the overall state housing budget increased ninefold to about $570 million. As of late August, the state had granted $34.5 million of the $46 million to local housing authorities and nonprofit organizations to pay for developer or rehabilitation of 1,734 units, according to Dyas, the program manager. The state has funded projects in Imperial, San Diego, Riverside, Ventura, Santa Barbara, Kern, Tulare, Kings, Fresno, Madera, San Joaquin, Monterey, Santa Clara and Lake counties. A wide variety of projects — construction of rental units, assistance with self-help homeownership projects, refurbishment of existing rentals — is eligible for funding. All grants require a match of at least 100%. The farm labor housing survey suggested that rehabilitation is a major need. The survey of 1,100 farmers and ranchers found that the average farmworker housing unit was built in 1966 and was put into service as farmworker housing more than 10 years later. State housing officials also have commissioned work on a broad farmworker housing plan, but the project is just beginning. Robert Wiener, executive director of the California Coalition for Rural Housing, said that rounding up more money remains his organization's top priority. "We have decades of accumulated need. Farmworkers are among the worst-housed and lowest-paid populations in the state," Wiener said. The farm labor housing survey found that only one-third of farmers in the state provide employee housing. Only 3% of those who do not have housing plan to offer it in the future, while 11% of those who provide shelter intend to reduce or eliminate units. "Most farmers/ranchers, while observing inadequate local supplies of housing, have no interest in owning or managing the housing themselves, preferring instead public, publicly-supported or private housing providers in those roles," the survey reported. Getting it built Besides a shortage of funding, local political opposition can stall or kill proposals to build homes for agricultural laborers. Proposals often generate nasty class and ethnic tensions. And some local governments — which see all low-cost housing as a direct money loser — have been less than receptive to nonprofit developers. Local governments' approaches to farmworker housing are mixed. That the issue remains vexing might be evidenced by the fact that few local planners contacted for this story were willing to comment. Some local governments, such as Sonoma County, have passed ordinances to accommodate development; other local governments have not addressed the issue at all. Glenn County, for example, has no specific policies for farmworker housing, said Senior Planner Christie Leighton. Yet Glenn County's $260-million-a-year agricultural industry is the economic backbone for the rural county 80 miles north of Sacramento. In 1999, the Legislature passed AB 1505 (Ducheny), which requires a city or county general plan to identify adequate sites with public services and facilities for development of farmworker housing to meet the city or county's regional share. Because the law has been in effect less than two years — and jurisdictions in the most heavily farmed regions have not updated their housing elements — it is a bit early to tell how effective the law will be. Some housing advocates believe the law could provide leverage for dealing with stubborn cities and counties. "The housing element is a nice tool," Wiener added, "but it doesn't change attitudes." Those attitudes are a persistent hurdle even for a group with an extensive track record, such as Visalia's Self-Help Enterprises, which will break ground on its 5,000th unit this year. "We continually run into the same obstacles and the severe opposition when we try to build," said Carey, of Self-Help Enterprises. Patricia Harrison, a professor at UC Davis's design program and a low-income housing researcher, recommended working with residents and local officials before fighting them. "What you have to do is go in with a design that meets the community norms. And then you have to go in and listen to people. You have to work with the community's concerns," Harrison said. If adjustments such as more driveways, or additional landscaping helps gain local resident's support, then project developers should make the changes, she said. Harrison recently designed a manufactured home project for 24 single males in the Colusa County community of Arbuckle. The project met strong local opposition, but her client, a local farmer, was willing to tinker with the design to offset some concerns. Residents became more receptive as construction continued because they saw the project did not appear out of place, she said. Carey said that Self-Help Enterprises of Visalia does not build projects that people oppose because future residents would have too great a burden. He agrees that designing a project that looks like any other development is essential. When Self-Help Enterprises builds multi-family projects — which are targeted toward farm laborers — it always builds at a lower density than permitted to curry favor with locals, Carey added. The agency also insists on having a resident manager and a community meeting room for its multi-family developments. Challenges remain The fact that state funding for farmworker housing dropped 25% below a baseline established one year earlier demonstrates a systemic instability that makes planning difficult. Shelter for single-males remains problematic. Harrison, of UC, focuses on housing for single males, but most nonprofit developers emphasize family homes. "The challenge out there," said Carey, "is still the single male population, and I'm not sure how to deal with that." A state income tax credit for development of farmworker has attracted little interest since its approval in the mid-90s, said Marc Brown, of California Housing Law Project. Advocates support AB 1160 (Florez), which makes technical changes intended to expand the tax credit program. Contacts: Peter Carey, Self-Help Enterprises, (559) 651-1000. Peter Dreier, Napa Valley Housing Authority, (707) 257-9547. Pat Dyas, Department of Housing and Community Development, (916) 327-0942. Patricia Harrison, UC Davis School of Design, (530) 752-6411. Jeri Hansen, Napa Valley Vintners Association, (707) 968-4206. Robert Wiener, California Coalition for Rural Housing, (916) 443-4448.

In the session that ended Sept. 14, the California Legislature has passed bills that would strengthen the connection between water supply and land use planning, place restrictions on how long redevelopment agencies can keep operating, and shut down the "certificates of compliance" loophole in the Subdivision Map Act being used by Hearst Ranch and others. The question of whether Gov. Gray Davis will sign the subdivision and redevelopment bills in particular is sparking keen interest in land-use circles. Overall, it was a light year for land use bills, with only about two dozen other bills being passed before the Legislature closed its regular session for the year in the early morning of September 15. The Legislature did not approve school bonds, but it did decide to place a $2.6 billion park bond on the March 2002 ballot. Lawmakers did not make any significant changes to the California Environmental Quality Act. The top 10 land use bills approved by the California Legislature during 2001: • SB 221 (Kuehl) requires that cities or counties obtain proof that a sufficient water supply is available for any subdivision of at least 500 lots. The bill specifies that if groundwater is to serve as a subdivision's source, a public water system must evaluate the landowners' right to extract the water. The bill exempts redevelopment and low-income housing projects. The measure is a companion to SB 610 (Costa) and SB 672 (Machado). The Costa bill attempts to close loopholes in SB 901 from 1995, which required local governments to assess whether water was available for projects of 500 or more units. The Machado bill orders the Department of Water Resources to report on water projects in each hydrologic region of the state and to pursue alternative water projects, such as desalination, water recycling, new treatment facilities. • SB 497 (Sher) amends the lot line exemption within the Subdivision Map Act. The bill prohibits landowners from using certificates of compliance to reconfigure old subdivisions of at least five parcels. The key language in the bill was added in August after the Hearst Corp. revealed that it would seek certificates of compliance for 279 parcels on the Hearst Ranch in San Luis Obispo County, greatly increasing the land's value. Real estate, development and forestry interests strongly fought the bill, which faces an uncertain fate on the governor's desk. • SB 211 (Torlakson) allows redevelopment agencies with project areas that will expire to continue doing business for an additional 10 years. To be eligible for the extension, an agency cannot have surplus funds, it must have a state-approved housing element, and it must make a finding that significant blight remains. Under the extension, the agency must set aside 30% of tax increment revenue for low- and very low-income housing (as compared with the usual requirement of 20% for low- and moderate-income housing), and it allows state agencies, counties and special districts to ask the attorney general to review agency requests for extensions. Under current law, the majority of the state's redevelopment project areas cannot issue new debt after 2004, and the redevelopment plans sunset in 2009. The Department of Finance is opposed to bill because of processing costs and the loss of future revenue. • AB 637 (Lowenthall) makes a number of changes to housing requirements in redevelopment law. The bill eliminates the January 1 sunset date for the 15% inclusionary housing requirement, mandates that redevelopment agencies leverage their housing spending with private and commercial financing, and require that housing units provided by agencies remain affordable for up to 55 years. • SB 1098 (Alarcon) prohibits cities and counties from extending beyond 45 days a moratorium on housing projects that have large multi-family components. A city or county could extend the moratorium only if it makes specific findings based on substantial evidence that the moratorium was the only way to avoid significant, quantifiable health and safety impacts. Local governments oppose the bill, saying the measure is too broad and unnecessary. Governor Davis vetoed a similar bill last year. • AB 369 (Dutra) allows courts to award attorneys' fees against local governments that that violate the anti-NIMBY law. Developers or housing advocates would be eligible for receiving attorneys' fees after winning a lawsuit. The governor has already signed the bill. • AB 1367 (Wiggins) establishes a meet-and-confer process between school districts and the cities or counties in which the district is located. The bill requires school district to provide local government with at least 45 days notice before adopting long-range development plans, and allows either side to call a meeting to discuss the plans. • AB 545 (Steinberg) requires the state, when leasing, purchasing or constructing state government office buildings, to consider the availability of public transit, proximity to affordable housing, pedestrian access to retail businesses, and the need for an area's economic revitalization. The bill gives priority to use of buildings with historic, architectural or cultural significance. It also requires state-owned office buildings, when feasible, to include ground-floor retail or other amenities to serve pedestrians. The governor vetoed a similar bill last year. • AB 93 (Wayne) creates the San Diego Regional Airport Authority. The new nine-member, appointed entity will have exclusive authority to plan, build and operate regional airports in San Diego County. The bill removes the Port of San Diego and the San Diego Association of Governments from the process of planning a new airport to replace Lindbergh Field in San Diego. • AB 1602 (Keeley) is a $2.6 billion park and natural resources bond. About half the money would fund parks and museums, while state land conservancies would receive $445 million. The remaining money would pay for restoring lakes, rivers and wetlands, protecting farmland and reducing air pollution in state parks. If Gov. Davis signs the bill, voters would decide on the bond measure in March 2002.

The Ninth U.S. Circuit Court of Appeals has rejected federal arguments for dropping a desert lizard from consideration for Endangered Species Act protection. In its ruling, the unanimous three-judge panel encourages a broader, more flexible reading of the act than the Clinton administration had offered. The case turned on the interpretation of the phrase "in danger of extinction throughout ... a significant portion of its range." Such animals and plants are to receive ESA protection. The court rejected both the secretary of the Interior's interpretation, and that of environmental groups who brought the lawsuit. "We conclude, consistently with the secretary's historical practice, that a species can be extinct 'throughout ... a significant portion of its range' if there are major geographical areas in which it is no longer viable but once was," Judge Marsha Berzon wrote for the court. The secretary has a "wide degree of discretion" but must at least explain her conclusions. The critter in question is the flat-tailed horned lizard, whose habitat includes parts of eastern San Diego and Imperial counties, southwestern Arizona and northwestern Mexico. Creation of the Salton Sea, farming of desert land and urban development around El Centro and Yuma, Arizona, have eliminated about one-third of the lizard's historic range. The Interior secretary began reviewing the lizard's status in 1982 but had made no decision as of April 1995, when Congress withdrew much of the Interior Department's ESA funding. This virtual moratorium on ESA listings remained in effect until April 1996, when then-president Clinton restarted the listing process. Still, Interior Secretary Bruce Babbitt refused to make a decision on the flat-tailed horned lizard. In May 1997, a federal district court in Arizona ordered Babbitt to issue a decision within 60 days. In July 1997, Babbitt withdrew an earlier proposal to list the lizard as threatened. He found that data did not conclusively show significant population declines, that some threats to habitat had diminished, and that a new conservation agreement among federal, California and Arizona agencies would aid the lizard. Defenders of Wildlife and other environmental groups sued Babbitt in 1998. Southern California District Court Judge Thomas Whelan ruled for the administration. Environmentalists appealed to the Ninth Circuit, where they found a more receptive audience. The appellate court ruled that Babbitt relied on an improper standard to make his decision, and "failed to consider important factors relevant to the listing process." The Interior Department argued that although the lizard faced threats on private property, adequate habitat existed on public land to ensure the species' viability. The agency further pointed to a new conservation agreement among federal, California and Arizona agencies that added protections to lizard's public land habitat. Conversely, environmentalists argued that if private land constituted a significant portion of the lizard's range, and its survival on that land were threatened, the agency must designate the lizard for ESA protection. The court held that the agency's approach meant that a species would qualify for protection only if it were in danger of extinction everywhere. However, the ESA separately addresses species that are in danger of extinction in all their historic range. " he secretary's interpretation of 'a significant portion of its range' has the effect of rendering the phrase superfluous. Such a redundant reading of a significant statutory phrase is unacceptable," Berzon wrote. Environmentalists pointed to evidence that the lizard is projected to lose 82% of its habitat, and species that have lost smaller amounts of habitat have received federal protection. But the court held that no predetermined percentage of habitat loss qualifies a species for ESA listing. Instead, the court delved into the legislative history, comparing the ESA with two earlier conservation laws. The phrase "extinction throughout ... a significant portion of its range" appeared for the first time in the Endangered Species Act, and not in earlier laws. Congress added this new language to encourage cooperation between federal and state agencies and to allow the Secretary more flexibility, Berzon wrote. She pointed to congressional examination of the American alligator. The animal's historic range stretched from the Mississippi Delta in Louisiana to the Florida Everglades. By 1973, the alligator had become very rare in portions of Florida, yet it was overabundant in Louisiana. The ESA was intended to allow the Interior Department to protect the alligator where it was threatened with extinction, while not extending regulations to areas where the animal thrived. Babbitt should have used this approach when dealing with the flat-tailed horned lizard, the court said. "First, the habitat on private land may constitute 'a significant portion of its range' demanding enhanced protections not required on public lands; alternatively, the inverse may be true. Second, and perhaps more persuasively given this interpretation of the statute, the lizard may face unique threats in either California or Arizona, or in major subportions of either state," Berzon wrote. Babbitt also failed to account for problems with the conservation agreement and how the agreement would mitigate threats to the lizard, the court held. The Case: Defenders of Wildlife, v. Norton, Nos. 99-56362, 00-55496, 01 C.D.O.S. 6429, 2001 DJDAR 7927. Filed July 31, 2001. The Lawyers: For Defenders: Neil Levine, Earthlaw, (303) 871-6034. For Norton: Robert Oakley and Andrew Mergen, Department of Justice, (202) 514-2000.

A lawsuit challenging a Southern California water agency's purchase of a private water company has been reinstated by the Second District Court of Appeal. The unanimous three-judge appellate panel ruled that Los Angeles Superior Court Judge Dzintra Janavs did not consider all the questions before her when she ruled that the Castaic Lake Water Agency could acquire the Santa Clarita Water Company. If the water company became the alter ego of the public water agency, the transaction would violate state law, the court held. Because the lower court did not decide that question, the appellate panel returned the lawsuit for further proceedings. The Legislature created the Castaic Lake Water Agency to acquire water and water rights, and to provide that water at wholesale only. The agency sells water to four utilities in the Los Angeles County's fast-growing Santa Clarita Valley, including the sight of the proposed 21,000-home Newhall Ranch subdivision. The provision of water to Newhall Ranch is a central issue in ongoing litigation over the project. The Santa Clarita Water Company is the largest utility served by the Water Agency. The company has 21,000 customers, as well as rights to 15,000 acre feet of groundwater. On August 11, 1999, the Water Agency approved a retail service agreement with the company. Under Water Code § 12944.7, a wholesale water agency can sell water directly to consumers if the agency has a contract with a company that is subject to Public Utilities Commission (PUC) regulation. The Water Agency said it was following that law, which overrode the original act that created the Agency. The next day, the Water Agency filed a notice in court to condemn and acquire all outstanding stock in the Santa Clarita Water Company. On August 23, four residents from the Water Agency's territory filed suit on various grounds to halt the transaction. But the deal went forward anyway, and by September 3, the Water Agency had acquired all shares of the company for $63 million in cash. Afterward, the Water Agency wound up the company's business, dissolved the corporation, distributed the assets to the Agency, and accepted the resignation of three company directors and the secretary. When the residents who protested the transaction got a court hearing, they argued that the transaction merged the two entities into one, in violation of § 12944.7. They also contended that there was no longer a company subject to PUC regulation, so the retail service agreement approved in August no longer complied with § 12944.7. The Water Agency argued that the company is subject to PUC regulation, but denied that § 12944.7 requires the company to remain subject to PUC control during the life of the retail service contract. Judge Janavs ruled that § 12944.7 overrode the legislative act that created the Water Agency. The appellate panel concurred with Janavs regarding the applicability of § 12944.7. The appellate panel also said the Water Agency had the authority to take through eminent domain "any facility reasonably required for the importation and transmission of water." However, the appellate court ruled that the Water Code requires an arm's length contract between two separate entities. " o comply with § 12944.7, whenever a wholesaler agency sells water directly to the consumer, it must be doing so pursuant to a contract with a water company that exists as an entity, be it a wholly owned subsidiary or otherwise, independent from the wholesaler agency," Justice Richard Aldrich wrote. "For these same reasons, we also conclude that a water company, with whom the wholesaler agency contracts, must remain subject to PUC regulation throughout the life of the contract. The Agency argued that there is no 'continuing obligation to be regulated by the PUC' once the transaction is closed. We reject this 'nanosecond' argument because it renders § 12944.7's requirement of PUC regulation pointless and surplusage." Because the trial court did not address whether the company continues to exist as a separate entity subject to PUC regulation, the appellate court did not rule on the question. Instead, it directed the Superior Court to consider the issue. But the appellate court clearly had concerns. " f at any point the Agency actually merged with the Water Company or the Water Company became the alter ego of the Agency ... the Agency would no longer have a contract pursuant to § 12944.7 by which it could sell or deliver water at retail without violating its own enabling act, Aldrich wrote The Case: Jill Klajic v. Castaic Lake Water Agency, No. B137258, 01 C.D.O.S. 6194, 2001 DJDAR 7567. Filed July 20, 2001. The Lawyers: For Klajic: Jennifer Kilpatrick, (323) 852-1000. For the agency: Robert H. Clark, general counsel, (661) 297-9132.

A state appellate court has greatly reduced the amount of damages that San Diego County must pay to a landowner in an inverse condemnation case. The court reduced a jury's award of $646,000 by $187,000 and directed the trial court to reconsider other costs included in the award. The decision came in a Fourth District Court of Appeal, Division One, ruling that was only partially published. In 1988, Dana Ferrell purchased land in Lakeside, 90% of which was in a floodplain. Although the land was zoned for agricultural and residential uses, Ferrell planned to develop a construction material recycling center on the site. After Ferrell bought the property, his neighbor Reid Enniss began developing his own property by placing 800,000 cubic yards of fill dirt on the site to raise it above the floodplain. Enniss' construction increased the flow of water onto Ferrell's property. Enniss also did not grade his property according to approved plans and ended up grading the slope for a drainage channel on Ferrell's property. Ferrell then sued Enniss and the county. Enniss paid Ferrell $60,000 to drop the suit. But Ferrell's inverse condemnation claim against the county went to trial. The trial court found that the county was liable for approving and accepting for public use Enniss' drainage improvements that increased the flow of water onto Ferrell's property. However, a jury awarded Ferrell no damages. On appeal, the Fourth District ruled in a 1998 unpublished opinion that the jury should not have had the option of awarding zero damages, and the Fourth District sent the case back to the Superior Court. A second jury trial resulted in Ferrell winning an award of $646,000, including $189,000 for mitigation damages, $6,600 in ordinary costs, $1,890 in stipulated damages, $196,000 in prejudgment interest, and $252,000 for costs and expenses, including attorneys, appraisal and engineering fees. Ferrell appealed again, arguing that the trial court improperly excluded his appraisal expert and that he was due additional costs and attorney's fees under Code of Civil Procedure § 1036. The county also appealed, contending that the trial court should have granted its request for a "judgment notwithstanding verdict." The county also argued that the jury awarded Ferrell excessive prejudgment interest and excessive costs and attorneys fees. A unanimous three-judge appellate panel rejected Ferrell's appeal and accepted most of the county's arguments. In considering Ferrell's appeal, the court held that Superior Court Judge Thomas R. Murphy correctly rejected Ferrell's request for $12,200 in "costs, disbursements and expenses" for such things as mileage, postage, telephone charges, meals and parking. In an unpublished portion of the opinion, the appellate court ruled that Murphy properly excluded Ferrell's appraisal expert - and eliminated his fees - because the expert's opinion "was based on an improper factual assumption." Also in the unpublished part of the case, the court held that Ferrell's request for $17,000 in attorneys fees from the first trial was too late. In turning to the county's appeal, the court addressed the request for a "judgment notwithstanding the verdict" (JNOV). Most of this part of the ruling is in unpublished sections of the opinion. The jury had awarded Ferrell $189,000 for costs he incurred while unsuccessfully applying for a use permit to develop his construction material recycling plant. Ferrell said the legal, engineering and environmental specialists' costs were incurred while he tried to mitigate the damages caused by the county's inverse condemnation. But the appellate court said Ferrell's claim was bogus because he had intended to pursue the recycling facility all along. The use permit application would have allowed Ferrell to remedy the drainage problem created by Enniss, "but those features were merely incidental to the sole purpose of the application from its inception - to allow Ferrell to develop the property for use as a recycling center as he intended on, and even before, the date he brought the property," Justice Alex McDonald wrote in the unpublished part of the ruling. Because Ferrell did not prove that he suffered any economic loss or diminution of property value, the appellate court directed the trial court to award Ferrell $1 for nominal damages, plus the county's stipulated damages of $1,890. The appellate panel also directed to lower court to re-determine other costs and the prejudgment interest award. The Case: Dana K. Ferrell v. County of San Diego, No. D034864, 01 C.D.O.S. 5757, 2001 DJDAR 7029. Filed June 8, 2001, certified for partial publication July 9, 2001. The Lawyers: For Ferrell: Michael H. Fish, McKenna and Cuneo, (619) 595-8088. For the county, William A. Johnson Jr. and Timothy M. Barry, deputy county counsels, (619) 531-4847.

Everybody knows there are lots of lots in California. And there's always been lots of controversy about what you can do with your lots. But now there's lots of controversy about the more basic question of what is a lot and what is not. Jurisdictions all over the state are dealing with the question of how to handle old parcels that don't meet current standards. Increasingly, however, localities are facing big property owners who are asserting something a little different – the idea that big chunks of land they have always owned in a block were really subdivided in the 19th century. The so-called "magic subdivision" issue has been around for the past decade or so, but it's heated up again in the last couple of months, as the Hearst Corp. has moved forward with an effort to assert that the famous 80,000-acre Hearst Ranch in San Luis Obispo County is actually made up of 279 lots that were subdivided in 1852. Hearst isn't interested in developing the new lots; the company's development proposal is concentrated on a tiny portion of the ranch along the ocean at San Simeon Point. But by legally affirming the existence of the lots by obtaining a "certificate of compliance," the company will be able to get more money from land trusts and government agencies that might buy either conservation easements or the property itself. Nevertheless, the Hearst gambit has galvanized environmentalists and local governments – especially on the Central Coast – in a renewed effort to prevent the validation of newfound subdivisions, which cannot only increase the value of property but also allow landowners to evade the Subdivision Map Act under some circumstances. Many land speculators who acquire property and obtain post-hoc validation of a subdivision then maximize property value by using a lot-line adjustment – which is exempt from the Map Act so long as the number of number of lots does not increase. Hearst has not tried the lot-line adjustment idea yet. But the high-profile nature of the case has led environmentalists and local governments to attack the magic subdivision issue in Sacramento – even attempting to put some kind of brake on the process in this legislative session. The Hearst scheme is the latest twist on a very old game in California – and, indeed, in the United States: If you want to make money easily, buy some land, subdivide it, and sell it off. This is a pretty basic rule of land economics, especially in a desirable place like California. As a commodity, lots are no different than oranges. You can sell one at a higher per-unit cost than you can sell a dozen. So land speculators have always been highly motivated to subdivide their property into smaller lots in order to make money. Thus, it is not surprising that subdividing property has been a basic planning policy question in California for many decades. The question used to be: What do we do with old, substandard lots – those dating from 1910s or 1920s — that don't meet today's requirements for community-building? Now the question is: Do very old lots – those dating from the 19th century — even exist? This is a fundamental question for the future of California planning because there is a big difference between the people who own tiny, substandard lots they can't use and the people who own large pieces of property which they now assert were subdivided long ago. The first group of property owners is not very powerful – they are generally unsophisticated "little guys" unlikely to put much pressure on counties or the state to create change. But the second group of property owners is powerful. They're not all Hearsts, but they are generally old-line property owners with enough resources to make their case in court. At the center of this whole controversy is that complicated and often arcane law, the Subdivision Map Act – a law that requires every local government in the state to regulate the subdivision of land by private property owners. The Map Act is one of planners' biggest sticks in dealing with developers. It gives local governments power over what the law calls the "design" of subdivisions and the "improvements" associated with those subdivisions. In practical terms, it gives local government planners leverage to demand exactions from developers. But that was not the intent of the Map Act. Originally, the Map Act was designed as a consumer protection ordinance so that unsuspecting lot purchasers would be sure to wind up with property they could actually access and build on. All through the late 19th and early 20th Century, land speculators would simply subdivide property into small lots and sell it off – without setting aside property for roads or any other necessities of urban development. Often, neither subdivider nor buyer had ever seen the property before it was cut up and sold. If you want to see what this type of subdivision looks like on the ground, go to Clear Lake sometime. It's a vacation area where houses and lots are scattered willy-nilly across the landscape, often connected by informal, unpaved roads that technically trespass across somebody's property. It's often impossible to discern a logical pattern of subdivision. To the extent that the question of subdivided lots has been a policy issue in California, it has dealt with the question of antiquated lots and what to do about them. Some years ago, a report to the Senate Local Government Committee concluded that there were somewhere between 400,000 and 1 million "antiquated" lots in California that were undeveloped. The Hearst gambit, however, reminds us that there's another angle to the question of old subdivided lots – and that has to do with the question of whether subdivisions created before the Subdivision Map Act was first adopted in 1893 exist at all. Under the Subdivision Map Act, property owners can request local governments to issue "certificates of compliance" verifying that parcels met the legal requirements in place at the time the lot was created.Of course, it is still fuzzy what pre-1893 process for subdividing land should be considered legal. In many cases, property owners have argued that simply recording a plat map with the county is sufficient. Better still appears to be a federal patent establishing the lots. It is a federal patent from 1852 on which the Hearst Corp. is relying in attempting to split its ranch in 279 parcels. And once a property owner produces this kind of evidence, it is hard for the local government – or the Coastal Commission, in the case of coastal property such as Hearst Ranch – to say no. According to one recent Coastal Commission staff report, San Luis Obispo County has issued 363 certificates of compliance in the county's coastal zone during the last 20 years, and the Coastal Commission has a hard time simply tracking them all, much less reviewing them and putting restrictions on them. The Hearst Corp. appears to be using the "magic subdivision" approach as a way of establishing the highest possible property value. The company is negotiating with two national conservation groups about selling the conservation easements to them. For the conservation groups to buy the land, the land has to have a value – and that value is related to development potential, which, in turn, is related to the number of lots. Once the certificates of compliance are issued, Hearst Corp. will have an opportunity to employ yet another gambit to increase its property value by using the lot-line adjustment loophole in the Subdivision Map Act. Once it has established that its ranch is really 279 separate parcels, Hearst then could rearrange those parcels however it likes on the map – ensuring that they all have frontage along Highway 1 or the ocean, for example – to maximize their theoretical value. That would jack up the price that the conservation groups would eventually have to pay. It often seems as if we are in an "end game" situation in rural California. Large landowners who have held property for decades – sometimes centuries – are finally moving to dispose of their land, either into urban development or permanent conservation. Environmentalists and slow-growth activists often complain that big landowners sometimes feign a proposed development project (or, in the case of Hearst, development "potential") even when they intend all along to sell to the government or land conservancies. The result of this process obviously costs Californians a lot of money. This issue will move front and center in land conservation and development in California in the years ahead. Property owners have rights. Those include the right to get certificates of compliance, lot-line adjustments, and other legal means relating to subdivisions.

A federal court has ruled that San Diego's adult business zoning ordinance violated the First Amendment because the city did not prove that there are enough sites available for adult businesses. The Ninth U.S. Circuit Court of Appeals ruled that the city's 1,000-foot buffer requirements are constitutional and that the city can treat adult businesses differently from other commercial operations. The city lost the case because it did not show that it provided "reasonable alternative avenues of communication." The controversy started in 1997, when George Isbell Jr. purchased a building with the intention of providing adult entertainment. San Diego's zoning requires 1,000-foot buffers between adult businesses and residential zones, churches, schools, public parks and other adult businesses. Isbell's building was 900 feet from a residential zone. He applied for a variance, arguing that the freeway separating his property from homes would dissipate any secondary effects. The city denied the variance, so Isbell, claiming that the city's ordinance violated the First Amendment and that the city's standards for variances violated the equal protection clause. Southern California District Court Judge Irma Gonzalez ruled for the city. The Ninth Circuit overturned a key portion of Gonzalez's decision. A zoning ordinance that requires separation of adult businesses was upheld by the U.S. Supreme Court in Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976) and has been upheld recently by the Ninth Circuit (see CP&DR Legal Digest, August 2000). The U.S. Supreme Court has further ruled that dispersal ordinances intended to control secondary effects of adult establishments, such as prostitution, are constitutional so long as they are "designed to serve a substantial government interest and allow for reasonable alternative avenues of communication." City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). In court, the city presented a list of 110 parcels totaling 92 acres where adult businesses could be located. Isbell argued that many of the sites were not economically suited to his business, so there were only three locations actually available. The court disagreed with both sides. The commercial feasibility of a site is not a factor, the court ruled, striking down Isbell's contention. The issue is whether a site is part of the actual real estate market for commercial enterprises in general. More importantly, the court ruled that the city's list of sites ignored the requirement for a 1,000-foot separation between adult businesses. "There is no question that, when this separation is taken into account, far fewer than 110 adult businesses could operate at the City-identified sites," Judge William Canby wrote. Because of the city's oversight, the court assumed that the city has 45 sites - the number of existing adult businesses in San Diego. Because there are 45 existing businesses and demand for at least one more - Isbell's application - the city does not have adequate sites for adult businesses, the court held. The city should have conducted a comprehensive analysis of the theoretically available acreage, the number of sites in relation to the city's population, community needs and the incidence of adult businesses in comparable towns, the court ruled. The court did not go so far as to strike down the 1,000-foot rule. The ordinance serves a substantial government interest - so long as adequate sites remain available, the court ruled. And the court ruled that the city's rejection of Isbell's variance application did not violate his equal protection rights. The Ninth Circuit returned the case to the district court for further proceedings. The Case: George Isbell Jr. v. City of San Diego, No. 99-55591, 01 C.D.O.S. 6436, 2001 DJDAR 7923. Filed July 31, 2001. The Lawyers: For Isbell, John Barriage, (858) 874-7692. For the city: Carra Lassman, deputy city attorney, (619) 533-5800.

The state Department of Conservation has sued the City of Elk Grove for approving a 295-acre commercial development on farmland at the edge of town. The year-old city approved the 3 million-square-foot Lent Ranch Marketplace project in late June. One month later, three environmental groups, including the Environmental Council of Sacramento, filed a lawsuit claiming that the city did not mitigate the loss of farmland and failed to address the safety of building a massive retail project near two large propone storage tanks. The Sacramento Bee reported that Westfield Corporation, an Australian shopping center developer that owns the Downtown Plaza in Sacramento, bankrolled the lawsuit. The state filed a lawsuit based on similar concerns in early August. State officials called the project "leapfrog development" that would encourage further urbanization of area farmland. Gov. Davis has signed a bill that limits the use of Marks Roos bonds. The bill, AB 457 (Canciamilla), requires that the local government entity with land use jurisdiction over a project must be part of any Marks Roos bond issue. The bill effectively outlaws the creation of "roving" joint powers authorities. Lawmakers have tried to block roving JPAs for several years, but developers took to creating mutual water companies for their projects. These water companies then joined with cities or other public agencies—often hundreds of miles away—to issue Marks Roos bonds to fund project infrastructure. However, as some developments failed, bonds have gone into default. In 1999, Davis vetoed AB 1511 (Flores) that would have barred mutual water companies from participating in roving JPAs. The Presidio Trust released a draft implementation plan and associated environmental impact statement for the 1,450-acre San Francisco park in late July. The plan focuses new development in the former Army base's northeast corner, near the Palace of Fine Arts and recently restored Crissy Field. The plan limits total structural space to 5.6 million square feet. The Presidio now has about 6 million square feet of structures; some of those buildings will be razed and others remodeled (see CP&DR Local Watch, March 2001). Environmentalists, civic leaders and neighborhood representatives quickly criticized the plan as one that would generate too many visitors and employees, harming the natural resources and congesting streets. Some people also said the plan lacked adequate detail. Less than a month after the plan's release, the Presidio Trust signed an agreement with moviemaker George Lukas's Lucasfilm Ltd. to allow the company to develop a 23-acre office and movie production campus at the site of an abandoned hospital and annex. About 2,500 workers are forecast at the 900,000 square-foot-Lucasfilm campus, which Presidio Trust officials see as the park's financial backbone. The Presidio Trust Implementation Plan and the draft EIS are available at http://www.presidiotrust.gov/ptip . A person may not serve simultaneously on a school board and a city planning commission if boundaries for the school district and the city overlap, according to a state attorney general's opinion. National City Prosecuting Attorney George Eiser III said he raised the question when a local school board member applied for a planning commission appointment. Deputy Attorney General Gregory Gonot said that public offices are incompatible if there is a "clash of duties or loyalties." Such would be the case here. "What the school district considers to be in the best interests of the public with respect to its land use decisions may differ from that of the planning commission in its determination of whether the decisions are consistent with the city's general plan," Gonot wrote. Opinion No. 01-307 is available at http://caag.state.ca.us/opinions/published/01jul.htm . Fresno County and the cities of Fresno and Clovis in August approved a conceptual agreement that redirects urban growth in metropolitan Fresno. The pact provides the two cities with about 18,000 acres for urban expansion during the next two decades, with growth occurring in the cities' southeast ends before northward expansion could resume. For decades, both cities have marched north toward Madera County. The agreement ends several years of bickering and threatened litigation. Under the pact, both cities will share sales tax revenue from new growth areas with the county. The agreement appears to allow Clovis to pursue its 1993 general plan, which focuses growth in two urban centers in the southeast as the town of 68,000 doubles in population during the next 20 years. The agreement also roughly matches Fresno's proposed general plan, which emphasizes infill development, downtown redevelopment and higher densities as the city grows to nearly 800,000 people by 2025. (See CP&DR Local Watch, September 2000). Two water contracting coalitions and several individual water agencies have filed a lawsuit over East Bay Municipal Utility District's plan to divert water from the Sacramento River just south of Sacramento. East Bay MUD, the City of Sacramento and Sacramento County worked out the agreement less than a year ago after fighting for three decades over East Bay MUD's plan to take water from the American River. U.S. Sen. Dianne Feinstein and many environmentalists hailed the agreement. It would allow East Bay MUD to take up to 133,000-acre-feet of water from the Sacramento River during dry years, leaving the American River untouched. But in their lawsuit, other water agencies that rely on the Sacramento River and the Bay Delta argue that the diversion could decrease the amount of water available for farms and cities outside East Bay MUD, and could raise the salinity level of Delta water. The suit claims East Bay MUD and the U.S. Bureau of Reclamation did not prepare an adequate environmental impact report. Representatives of East Bay MUD said the suit was premature because a supplemental EIR is in the works. The suit was filed by the 32-agency San Luis and Delta Mendota Water Authority, the 27-member State Water Contractors, the Contra Costa Water District, Santa Clara Valley Water District, Kern County Water Agency and Westlands Water District. The Bay Area Discovery Museum has indefinitely postponed the groundbreaking of its planned expansion because of a lawsuit filed by the City of Sausalito. Although no injunction is in place, museum leaders said they did not want to move forward during litigation. The 10-year-old museum is located at Fort Baker, on the edge of San Francisco Bay just north of the Golden Gate Bridge. The expansion calls for 12,500 square feet of classrooms and a theater, plus a 2 1/2-acre outdoor exhibit about the Bay's environment. The city contends that the project amounts to unnecessary commercialization of Fort Baker, whose historic sites should be restored. The Sacramento Local Agency Formation Commission has determined that incorporation of Rancho Cordova is "marginally feasible." The study suggests the proposed city along Highway 50 east of Sacramento would have to impose additional taxes. The Rancho Cordova Incorporation Committee said the study confirmed that the community could make it on its own and discounted the need for higher taxes. County officials said the study did not account for the full impacts on the area if Rancho Cordova were to become Sacramento County's seventh city. Incorporation backers hope to place the issue before voters in March. Voters in Moreno Valley rejected a proposed $20 annual parcel tax to fund construction of a new library. Only 9.5% of registered voters in the Riverside County town of 142,000 people participated in the July 31 special election, according to the City Clerk's office. Thus, only 2,541 votes (55.6% of those cast) were enough to defeat the assessment. A San Francisco ballot measure that bars landlords from passing along the cost of capital improvements to tenants has been invalidated by San Francisco Superior Court Judge James Robertson Jr. The judge said that Proposition H, approved by voters in November 2000, violated landlords' rights to a fair return on their investments. The City of Sacramento, Union Pacific Railroad and the owners of the Sacramento Kings will jointly fund a $150,000 feasibility study of a basketball arena and entertainment center on an old rail yard next to downtown. The Kings currently play in Arco Arena, which was built 15 years ago in part to spur development in North Natomas, several miles north of downtown.

Much of the history of architecture consists of architects making copies of notable buildings, and planners making copies of town plans, all while altering the originals to fit the situation at hand. Thus, Roman temples become Midwestern banks, the Palladian villas of Vicenza, Italy, become the Colonial buildings of the Eastern Seaboard, and a French monastery designed by Le Corbusier becomes the Sunkist building in the San Fernando Valley. It goes without saying, perhaps, that the copy is not always an improvement on the original. A particularly striking example of architectural transformation — and one in which something is definitely gained — is Sailhouse, a 90-unit residential infill project in Corona del Mar, an upscale neighborhood in the Orange County city of Newport Beach. The developer is John Laing Homes. The acknowledged basis of this design is the well-known Rosemary Beach, a residential community in the Florida panhandle designed by Andres Duany and Elizabeth Plater-Zyberk. Far from a literal copy of Rosemary Beach, architect Mark Scheurer of Scheurer Arhcitects actually borrowed only the basic arrangement of the block: the fronts of the homes face a pedestrians-only walkway, while the houses back onto a service alley for parking, deliveries and trash collection (although the architects are quick to point out that they designed the alleys to be usable open space, as well). The architects also borrowed the St. Augustine style of housing found at Rosemary Beach, which consists of updated versions of the historic, 17th century stucco houses built by Spanish settlers, which were later taken over and enlarged with wooden second stories by English settlers. What is notable, however, is what the designers did not borrow from Duany and Plater-Zyberk. They did not borrow, fortunately, the convoluted street plan of Rosemary Beach, which was designed to keep through-traffic out of quiet residential streets, many of which end in archetypally suburban cul-de-sacs. (There is little that is traditional in this plan formulated by the self-proclaimed inventors of Traditional Neighborhood Design, but let it pass.) Unlike Rosemary Beach, which is "leapfrog" development, the Corona del Mar project is essentially urban infill, in which the short streets in the northern (upper) portion of the plan line up with the existing pattern of surrounding residential streets. The short streets consist of small-lot, single-family homes, while the larger units on the curving, east-west street are triplexes designed to look like single-family dwellings. Sailhouse, therefore, gets better marks in both urban design and sustainability than Rosemary Beach. Beyond those elements in the Floridian project that Sailhouse did not include, the project introduces its own new ideas, which actually make it quite different from the Duany original: Unlike Rosemary Beach, where the housing stands at street level, the houses at Sailhouse sit atop eight-foot "podiums." The decision to elevate the housing partly reflected both the land economics of this small-lot site plan, and partly the developer's desire to preserve the views of homeowners on a sloping site. In essence, the developer and the architect have created a two-level way of life, with housing (and much of domestic life) on elevated pedestrian "paseos" while cars and garages trash at street level, eight feet lower than the paseos. In this transformation, the pedestrian paseo, which was already a pleasant pubic space, becomes something like a linear courtyard, where children can move freely without fear of wandering into traffic. As in Rosemary Beach, each of the single-family streets ends in a cul-de-sac. The difference at Sailhouse, however, is that the cul-de-sac is designed as a small courtyard or outdoor room. (Each of these courtyards, block after block, has a unique design.) It is easy to imagine block parties, with a barbecue in one yard and an inflatable swimming pool in another. With their front yards and living rooms facing the paseo, people can expand the square-footage of the party simply by opening their front gate, which makes the front yard temporarily into a public space. Or they can maintain privacy by keeping the front yard gate closed. Sailhouse is not gated, and visitors can climb a set of stairs to enter the elevated blocks freely, which is desirable. (If the same scheme were to be built in a more urban area, conceivably a key-card system or some other type of security arrangement could protect the housing, even if such a scheme would involve a loss of sociability.) The alleys are also cul-de-sacs. Because they are narrow and blocked at the end turning around a vehicle is difficult, unless you can head the car into an open garage first. This is a smart security measure, but it probably complicates deliveries and trash collection; those vehicles are obliged to back out the full length of the block. My concerns about Sailhouse primarily regard the elevation of the housing. The question here, and I do not think it is entirely academic, is whether this is the best possible urbanism. A narrow, didactic type of theorist might hold that removing housing, and, hence, some pedestrian activity from the street, subtracts from the vitality of the street. I wonder if the streets might not feel a little lonely when residents lack the ability to glance over a fence to see somebody watering their lawn, scolding their husband or carrying papers to the trash. For better or for worse, however, if we try to alter the scheme, we lose its advantages. We could lower the elevated courtyard until it was only a few feet above the sidewalk, and hence more "transparent" to passers-by, but then the parking would have to be undergrounded, and the street-level front facades of the housing would become a row of ugly tunnels leading into subterranean darkness. And, although the paseos encourage walking, I wonder how pedestrian-friendly the streets will be. Maybe the presence of shopping one block away from Sailhouse will encourage people to walk and bicycle on the public streets. Those questions aside, Sailhouse is an example of a designer choosing a good model and actually improving it. The project is the most recent example of the reinvention of courtyard housing in the name of density. As an urban housing type, the elevated paseo is an example worthy of further study and experimentation.

The Port of Oakland is scheduled to begin work late this month on a $260 million dredging project that will expand the port's capabilities and cement the facility's position as the cargo shipping center for Northern California. The project is only one of many the port district is pursuing that could eventually bring more than 10,000 industrial, retail, service and white-collar jobs to Oakland. A new intermodal terminal is set to open this fall, providing much improved rail access to ships. The port district is also scheduled this month to select a developer for 60 acres of waterfront along the Oakland Estuary. Two heavyweight developers submitted proposals for mixed-use projects along the water. Additional commercial development of the Port District's Jack London Square is also in the planning stages. The projects are part of the transformation of Oakland's waterfront. While San Francisco's waterfront is a mix of industry, offices, tourist-oriented retail offerings and public parks, Oakland's waterfront is dominated by industry. The Port of Oakland handles about 98% of goods shipped into and out of the Bay Area. But the port district also owns about 600 acres east of the port itself that many people believe could be key to the city's economic future. Two years ago, the port district adopted an Estuary Plan for its holdings along the estuary that separates Oakland and Alameda. The area now contains offices, restaurants and shops at Jack London Square, numerous industrial users, and a mix of artists lofts, warehouses and other businesses. The plan reinforces Jack London Square's orientation as a regional attraction and community gathering place, and it protects many industrial uses. But it also calls for extensive mixed-use development and a string of parks connected by bikeways � all of which is intended to connect the waterfront and downtown Oakland, which are separated by the I-880 Freeway. The port's Board of Directors took a step toward implementing the Estuary Plan in April when it voted to work with a private partnership (composed of Cargill and local developers Ellis Partners and James Falaschi) on further development of Jack London Square. The port and the private developers continue to negotiate but are close to reaching an agreement, said Steve Hanson, the port's project manager for Jack London Square. The project will replace surface parking lots, a failing mall that has already been demolished, and vacant lots with 300,000 square feet of offices, 90,000 square feet of retail shops and a 250-room hotel. Although Jack London Square gets a reported 6 million visitors a year, the knock is that it has no real connection to the water. The Jack London Square Phase II project aims to change that. "We intend to create a project that will enhance public access to the waterfront, pedestrian uses, alternative transit and expand neighborhood, city and regional-serving retail," said Hal Ellis, one of the partners in the $200 million development. "It will enhance Jack London Square," added the port's Hanson. "We don't think Jack London Square has the density that it really needs. There's just not enough retail synergy." Farther east lies 60 acres where the Estuary Plan envisions extensive mixed-use development along the Embarcadero. Two teams have submitted proposals for the "Oak-to-Ninth District," and the port's Board of Directors could select a developer as early as this month. Shorenstein Co. and Interland Corp. submitted one proposal to the port district, while a partnership of Signature Properties and Reynolds & Brown submitted a competing plan. The four companies are among the Bay Area's biggest developers, demonstrating the site's potential. The Signature/Reynolds & Brown proposal calls for low- and mid-rise development. It emphasizes condominium development and a large retail complex similar to Seattle's Pike Place Market. The Shorenstein/Interland plan contains a tower of up to 24 stories. There would be extensive office space, public plazas and links to the Lake Merritt district next to downtown. "We feel we can create a famous destination address," said Richard Reisman, an Interland vice president. Shorenstein/Interland propose realigning the Embarcadero so that it matches the rest of the Oakland street grid and does not feel like an isolated loop, Reisman said. That helps tie the project to the rest of town, he said. "So many cities have brought themselves up by their bootstraps by revitalization of their waterfront, and then extending that revitalization further into town," Reisman said. Oakland waterfront activist Sandra Threlfall said the port district appears to be on the right track. She said the ideal development along the waterfront would phase from industrial at one end, to commercial, to mixed-use, to residential, to nonprofit facilities, to parks. Threlfall, who chairs the Waterfront Coalition, a collection of environmental and civic groups, said she had no confidence the port district would do the right thing for the community when she became active seven years ago. "I am very confident in the port today, and I believe they have come an incredible distance in seven years," Threlfall said. Threlfall said developers should build a waterfront that serves locals first. A thriving waterfront district that matches the community will naturally draw tourists, she argued. And she cautioned against glitzy buildings. "Let's not try to compete with San Francisco. We are our own place," Threlfall said. How exactly the port district's development plans jibe with the City of Oakland's view of the waterfront is uncertain. Mayor Jerry Brown has spoken about increasing public access to the waterfront. The port has allowed the city to extend its land use jurisdiction to the waterfront, so projects on port property will need city approval. There is a potential for conflict over tax revenue from some port district properties that lie within a city redevelopment zone. (City officials did not return telephone calls.) Of course, the port's shipping facilities remain its economic centerpiece. In July, the port district signed an agreement with the Army Corps of Engineers that amounted to the final approval for the dredging project. The port now has 42-foot-deep channels, and the project will deepen those to 50 feet, allowing the port to accommodate the largest container ships and prevent the port from losing business to facilities in Canada and Mexico. The project will take about five years and also will require annual funding allocations from Congress, said port spokesman Harold Jones. The port and the federal government are sharing equally the $260 million project. Port officials estimate the project will lead to the creation of 8,000 direct and indirect jobs, a 50% increase over current job levels. Maybe as important as the channel deepening is the intermodal terminal that is nearing completion on the former Oakland Army Base. The project provides direct rail access to shipping terminals, making handling more efficient and expanding capacities, Jones said. The rail line runs 11 miles to a large rail yard in Richmond. Contacts: Steve Hanson, Port of Oakland, (510) 627-1218. Sandra Threlfall, Waterfront Coalition, (510) 339-9233. Richard Reisman, Interland Corp., (650) 574-9200. Port of Oakland website: www.portofoakland.com