Judy Corbett is executive director of the Local Government Commission, a nonprofit organization whose members include elected officials, and city and county staff members. The commission provides forums and technical assistance to assist local agencies in a variety of subject areas. In 1991, the commission, working with architects and planners, produced the Ahwahnee Principles for community and regional planning. The Ahwahnee Principles provide an alternative to what the authors see as decades of unnecessarily segregated land uses, inefficient development patterns, lack of public gathering spaces, and over-dependence on the automobile. Following adoption of the Ahwahnee Principles, the commission formed the Center for Livable Communities, which assists local public officials with land use and transportation planning. CP&DR What are your priorities for the year? Corbett: The livable communities concept remains high on the agenda. The major type of development is still sprawl and big boxes and strip development. There are still many obstacles to having resource-efficient development. The other issue is energy. … There is just enormous potential at the local level to address these issues. CP&DR: What sort of things can local governments do regarding the energy situation? Corbett: Everything from mobilizing building departments to require more energy-efficient buildings, solar panels, and photovoltaic systems where appropriate. Planners should be requiring narrower streets with trees, which lower the ambient air temperature by up to 10 degrees. We need to retrofit buildings. A welfare-to-work program to insulate homes gets at the social equity aspects of this. CP&DR: What is happening at the state Capitol these days that you are working on? Corbett: We're right in the middle of the energy stuff and we see so much potential for local government to address this stuff. We created something called the Community Energy Authority in 1983, and a lot of our members are interested in that again. They are in such a crisis mode that nobody really has time to sit back and think about what they are doing. They ask us for advice, but they needed it yesterday. We are working on a program with the California State Association of Counties and the League of California Cities and school districts to get photovoltaic cells on rooftops of public buildings. … We just need the funds to put together the package. CP&DR: Getting back to "livable communities." You mentioned that there are many obstacles. What are they and what can you do about them? Corbett: It is primarily local government that is standing in the way, even though they like the ideas in theory. Their ordinances require streets that are too wide and densities that are too low. Most developers want to speed through the process as quickly as possible and the minute they propose something different and they meet any resistance, they revert to the old way of doing things — and there you go, back to square one. There is still this tremendous resistance to neighborhood parks, pocket parks, which is amazing. You need them for a stronger sense of community, yet a lot of cities feel like it's better to just provide one large park. CP&DR: How do you get past the obstacles? Corbett: We're working right now with a group in Fresno called the Growth Alternatives Alliance that produced the "Landscape of Choice." We're working with that group to scout around the country, find ordinances and policies that have already been enacted that encourage livable communities. We are giving our members sample ordinances that are working elsewhere. CP&DR: Fresno has a reputation for low-density, suburban sprawl. Why would a group like the Growth Alternatives Alliance exist in Fresno? Corbett: The Packard Foundation was willing to fund it, number one. And number two, there is this incredible coalition where you have got the building industry and the environmentalists working together. That's a pretty rare situation. And they have done the groundwork of getting the policies of the Landscape of Choice already adopted. It's amazing that it's happening in Fresno because in the earlier years I went down there and gave so many talks on livable communities, and I didn't think anyone heard me. And, voila, they rise to the top of the heap in terms of actually moving ahead on this stuff. CP&DR: You returned to the Ahwahnee Hotel in March for the 10th anniversary of the Ahwahnee Principles. What was that like? Corbett: What we did was collect a lot of information from all of the people who had been there 10 years earlier, and see all of the accomplishments we have made. Many people who are in positions to influence local and state policy were there. CP&DR: Have you made progress? Corbett: No question about it. It's pretty amazing. We've gone further than we ever thought we would. Ten years ago, you only spent money on things that were "essential." You didn't spend money on improving your community. We had a woman there from Placerville who said she hadn't had any successes. Then she showed us pictures of all they have done with their parks and their restroom in downtown. It was all just beautifully done. It feels like we have rolled the ball up the hill. … We have convinced the banks that it is feasible. I think there is more acceptance in communities of mixed-use development. Older people and younger people are asking for this type of development. There really needs to be a market for it. CP&DR: Where do you think we're gonna be in another 10 years? Corbett: I think we're going to make so much progress in the next 10 years. That's my optimistic side. Every day, I see a new constituency getting on board with this concept. And the newest constituency that is just suddenly beginning to pop up and embrace this is the health community because our land use patterns have induced an unhealthy lifestyle, and this is just spreading across the country. … Planners can influence public health as much as doctors. They can affect air pollution, water pollution, the obesity rate that we are seeing in kids, who have to be driven everywhere. CP&DR: Is there one town you go to where you think, this is the way it ought to be done? Corbett: Well, I've been involved in the City of Davis's politics for ages. It's one of the best communities in the Valley. There are greenbelts throughout the city. Strip development has not been allowed, and the densities are high enough. It's a wonderful place to live. If I were to choose one city in Southern California, it would be Pasadena. They have done everything so well. CP&DR Managing Editor Paul Shigley interviewed Judy Corbett at her office in Sacramento.

A Santa Monica law limiting occupancy of second units to relatives and domestic employees has been thrown out by the Second District Court of Appeal. The unanimous three-judge panel ruled that the city's second-unit ordinance violated privacy and equal protection rights. "Government may legitimately decide whether second units may be constructed in particular zones, but may not determine who may live in them," wrote Judge Paul Boland, a Los Angeles County Superior Court judge sitting by assignment. In 1982, the state Legislature approved a bill encouraging cities and counties to permit second units in single- and multi-family residential zones (Govt. Code § 65852) to help provide needed housing. Still, the City of Santa Monica prohibited second units. In 1996, a landowner in a wealthy part of town with single-family zoning sought approval to construct a second unit. Staff members advised the City Council that the city's existing ban was illegal and that an ordinance limiting occupancy to family members also would be susceptible to legal challenge. In late 1996, the council voted 4-3 to adopt an interim ordinance allowing second units for use by dependents and caregivers who could demonstrate a substantial hardship. The ordinance prohibited renting the units. The council made the decision after an outpouring of opposition to second units from single-family homeowners. The council later extended the interim ordinance for 18 months before reconsidering it in June 1998. The council at that time readopted the ordinance without the hardship requirement, and with regulations governing lot size, density, unit size, parcel coverage, parking and design standards. The council on a 5-2 vote made the ordinance permanent in May 1999. Meanwhile, the Coalition Advocating Legal Housing Options and Lou Moench, a former city planning commissioner, sued the city in September 1998. Los Angeles Superior Court Judge Robert O'Brien rejected the challenge without explanation. The Second District, Division Seven, overturned that decision. The appellate court held that the case was quite similar to the privacy issues in City of Santa Barbara v. Adamson (1980) 27 Ca.3d 123. In that case, the state Supreme Court invalidated an ordinance that prevented unrelated groups of more than five people from occupying a home in a single-family zone. The court determined that the "rule of five" had nothing to do with legitimate land use issues, such as noise, traffic and parking. "Unless we say that a second unit is not a part of one's home, personal decisions about who may live in the second unit are no less entitled to privacy protection than decisions about who may live together in the main residence," Justice Boland wrote. The court rejected the city's argument that Adamson was no longer precedent or was inapplicable. Boland cited Loder v. City of Glendale, (1997) 14 Cal.4th 846, which said that an intrusion on a resident's privacy is not justified by the government's interest in local zoning. Instead of regulating who can live in a second unit, the city could set limitations on the number of permits issued, the size and density of second units, and establish parking and other requirements, the court held. The housing advocates' equal protection arguments found support in College Area Renters & Landlord Assn. v. City of San Diego, (1996) 43 Ca.App.4th 677, in which the court invalidated an ordinance that distinguished between tenant-occupants, and owner-occupants in residential neighborhoods. "The City argues," wrote Boland, "that its objective is to preserve the ‘character and integrity of single family neighborhoods' and avoid an undue concentration of population and traffic. These are certainly legitimate goals, but it is difficult to see how the status of the occupier of a second unit — an unrelated renter versus a dependent or caregiver who is allowed to pay rent — bears any relationship to either one." The court also rejected Santa Monica's argument that its status as a charter city allowed it to avoid the state law regarding second units. "The Legislature has expressly declared housing to be a matter of statewide concern," Boland wrote. "Santa Monica is required to comply with § 65852.2, as it recognizes in the introductory words to its own ordinance." The Case: Coalition Advocating Legal Housing Options v. City of Santa Monica, No. B135879, 01 C.D.O.S. 2930, 2001 Daily Journal, D.A.R. 3589, filed March 13, 2001, ordered published April 11, 2001. The Lawyers: For the coalition: James Isaacs Jr., Isaacs, Clouse & Crose: (310) 458-3860. For the city: Cara Silver, deputy city attorney, (310) 458-8336.

An advertising company should have challenged Caltrans' mid-1970s cancellation of billboard permits many years ago, the First District Court of Appeal ruled in March. The court rejected the company's attempt to revive the permits on grounds that the permits were not properly canceled in the first place. Richard Traverso, who runs Adco Outdoor Advertising, is the successor in interest to four billboards along Highway 101 in San Mateo County. Permits had been awarded for the signs between the 1930s and 1972, but Caltrans canceled the permits during the mid-1970s. In November 1997, Traverso requested renewal of the one the permits, but Caltrans did not respond. He soon filed a lawsuit seeking to force Caltrans to renew all four permits, or to recover damages for inverse condemnation. (Traverso, in fact, filed about 20 lawsuits against Caltrans at the end of 1997 over old billboard permits.) San Mateo County Superior Court Judge Rosemary Pfeiffer dismissed this lawsuit, and the First District, Division Four, upheld that decision. At issue was the statute of limitations to challenge Caltrans decisions from the 1970s, the court held. Traverso argued that he was suing only over Caltrans' refusal to renew the permits in 1997, and that he was not seeking damages extending back to the earlier permit revocations. But the appellate court did not buy this argument. "No matter how Traverso tries to slice it, however, this case involves setting aside permit revocations that occurred over 25 years ago," Justice Laurence Kay wrote for the unanimous three-judge panel. " hile Traverso attempts to frame the issue in terms of Caltrans's alleged duty to renew or reissue the permits in 1997, he must overturn the original permit revocations." Traverso argued that because the permits were canceled without due process, the revocation never actually occurred. At worst, he argued, the permits have expired but are still renewable. Again, the court said no. Even if Traverso's predecessors in interest were wronged by the Caltrans action, the time to contest the decision was within three to five years, depending upon the claim, the court held. The people who owned the billboards prior to Traverso could have raised the due process claims at the proper time, the court held. "The permits were revoked as a matter of fact as alleged in the complaint, and they were revoked as a matter of law when the time for contesting the revocations passed," Kay wrote. There is no basis, the court continued, for Traverso's alternative argument that the permits expired and he has a right to have them reinstated. "If that were the rule, then there would be no statute of limitations for wrongful takings," Kay wrote. The only way to get past the statute of limitations is if the agency went well beyond its fundamental jurisdiction, the court held. In this case, "Caltrans unquestionably has the power to revoke billboard permits," the court ruled. The Case: Richard Traverso v. Department of Transportation, No. A087456, 01 C.D.O.S. 2278, filed March 20, 2001. The Lawyers: For Traverso: Terry Traktman, (707) 769-3090. For Caltrans: Brelend Gowan, deputy chief counsel, (916) 654-2630.

o City of Ontario Senior Planner Albert Cruse pleaded guilty in March to soliciting a bribe from the builder of a drugstore. Cruse offered to set aside a design requirement in exchange for $7,000. o The trial of former Cathedral City Community Development Director Jaime Aguilera was scheduled to begin in late April. Aguilera was indicted by a Riverside County grand jury in March 2000 for allegedly accepting a $5,000 bribe from billboard developers Robert and Cindy Adams. Aguilera, who has pleaded not guilty, allegedly introduced Robert Adams to councilmembers and the city manager, and proposed an ordinance that would have allowed the Adams' billboards. Aguilera, a former planning director in Colton and Moorpark, resigned in June 2000. The Adamses, who also have pleaded not guilty, are awaiting trial. o San Diego City Councilwoman Valerie Stallings resigned from office and pleaded guilty to two misdemeanors in January. Federal investigators said Stallings accepted gifts from Padres owner John Moores at the same time she voted on a publicly funded stadium for the baseball team. o Last year, federal authorities wrapped up "Operation Rezone" in the Fresno area after 6 1/2 years. Sixteen local officials and developers were convicted in a scheme of payoffs for favorable zoning decisions. o San Bernardino County Supervisor Jerry Eaves continues to defend himself against multiple charges of criminal activity and willful misconduct while in office. A grand jury indicted him last year for accepting and not reporting gifts from people who had business before the county, including a real estate broker who handled a closed Kmart building that the county leased. The state has taken over prosecution of the case. o San Francisco Housing Authority Director Ronnie Davis resigned in March after an Ohio grand jury indicted him for allegedly taking $300,000 in illegal bonuses while working as chief financial officer for the housing authority in Cleveland. Two days after Davis was indicted, former San Francisco Housing Authority executive Patricia Williams was sentenced to five years in prison for selling federal housing vouchers. Two other housing officials were given to lesser sentences for bribery. o A lawsuit filed by an immigrant rights group alleges that Santa Ana Mayor Miguel Pulido last year approved funding for a redevelopment program that provided façade improvements for buildings owned by Pulido's business partner. Pulido has denied wrongdoing. o Los Angeles County Local Agency Formation Commission Executive officer Larry Calamine in February agreed not to accept private consulting jobs without the consent of county attorneys and the LAFCO board. Attention was focused on Calamine when the Los Angeles Times revealed that he has collected tens of thousands of dollars from developers for steering projects through the Los Angeles City Hall approval process. o In February, the San Francisco Chronicle revealed that Jacques Barzaghi, Oakland Mayor Jerry Brown's top aide, was paid $13,500 for feng shui advice by prominent developer John Protopappas. Barzaghi did not report the income until the Chronicle story appeared. No one has alleged Barzaghi lobbied on behalf of Protopappas, who is a Port of Oakland commissioner

Regulators with the U.S. Army Corps of Engineers (COE) traditionally have explained their agency's role in protecting the nation's waterways by saying it had authority over "anything bigger than a duck's butt." The reference was to a COE rule extending its permitting power, granted by Congress through the Clean Water Act, to any body of water used by migratory birds. If a duck could land on it, the agency had declared, then a COE permit was needed before it could be filled or drained. Earlier this year, the U.S. Supreme Court overturned the "duck's butt" standard, saying isolated ponds and wetlands not attached to navigable waters of the United States were beyond the COE's permitting authority (see CP&DR Legal Digest, February 2001). At first glance, the ruling appears to be a victory for builders and landowners who had chafed under the restriction. Closer examination suggests, however, that they may have lost more than they gained. The 1972 Clean Water Act and its amendments establish legislative protection for the nation's "navigable waters" — defined vaguely as "the waters of the United States, including the territorial seas." Under Section 404 of the Act, a COE permit is required before the "discharge of dredged or fill material" into those waters. COE regulations implementing the Act's provisions defined those waters to include "intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce." In 1986, the agency further clarified its reach by saying its Section 404 authority extended to any waters "which are or could be used as habitat" by endangered species, birds protected under migratory bird treaties, or other migratory birds that cross state lines. The agency also took jurisdiction over waters used to irrigate crops sold in interstate commerce. This expansive interpretation of congressional intent gave the federal agency authority over virtually every puddle, including flooded road ruts, seasonal ponds and vernal pools. Critics saw it as an intrusion of federal power into an arena more properly left to state and local authorities. These opponents got their chance to challenge the COE's sweeping interpretation when the agency denied a permit for a suburban Chicago landfill. The Solid Waste Agency of Northern Cook County (SWANCC) had proposed developing a regional landfill on the 533-acre site of a former sand and gravel mine. Abandoned since 1960, the pits and trenches had become filled with water, which attracted migrating birds. The SWANCC planned to fill 17 acres of the flooded pits, and so applied to the COE for a Section 404 permit. Initially, the COE decided it lacked jurisdiction. It reconsidered, however, later determining that use of the ponds by migratory birds provided a rationale for Section 404 authority. The agency eventually denied the permit, ruling that the applicants had not fully examined less environmentally damaging alternatives. SWANCC filed suit in federal court challenging COE's jurisdiction. The solid waste agency lost in 1998 in the Chicago district court, and lost an appeal in 1999. It appealed that decision to the U.S. Supreme Court, which ruled on January 9 that the COE had overstepped its authority (Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 99-1178). In a 5-4 ruling, the court's conservative majority declared that Congress had not intended to give the COE authority over isolated intrastate waters simply because they are used by migratory birds. Doing so, Chief Justice William Rehnquist wrote, "would result in a significant impingement of the state's traditional and primary power over land and water use." In dissent, Justice John Paul Stevens decried the majority's interpretation of the Clean Water Act as "miserly" and said the decision "needlessly weakens our principal safeguard against toxic water." Environmentalists agreed, condemning the ruling and saying it removed protection from as much as a quarter of the nation's waterways. Property-rights groups and business organizations, on the other hand, applauded. That enthusiasm may have been premature. The ruling did not affect the COE's Section 404 permitting authority over the vast majority of the nation's waters. As noted in a January 22 memo by Gary S. Guzy, general counsel for the U.S. Environmental Protection Agency, and Robert M. Anderson, chief counsel for the COE, the ruling left open the possibility that even isolated intrastate wetlands might fall under COE jurisdiction if some other connection with interstate commerce could be demonstrated. The ruling, they wrote, also did not preclude COE involvement in cases where use, degradation or destruction of isolated, intrastate and nonnavigable waters could affect other "waters of the United States." More significantly, though, the ruling deprived landowners of a useful tool for negotiating compliance with other federal regulations. Thanks to the widespread destruction of the nation's wetlands — more than half have been filled or drained nationally since the 19th century, with the loss estimated as high as 90% in California — those that remain have become enormously important to wildlife, especially endangered species. Although developers and farmers regarded as particularly annoying the COE's assertion of authority over ephemeral wetlands and seasonal ponds, the Section 404 permitting process actually represented a straightforward means of dealing with the likelihood that any body of water might harbor a protected species. Section 404 permits typically allowed applicants to negotiate conservation agreements for listed species with the COE, which had worked out a streamlined consultation process with the U.S. Fish & Wildlife Service under Section 7 of the Endangered Species Act. Landowners planning to fill or drain isolated wetlands will still have to conduct detailed studies of their property to ensure that the water in question falls outside COE scope, as well as to comply with the California Environmental Quality Act, the California Coastal Act, and the state Fish and Game Code — all of which protect wetlands and waterways in some fashion. In addition, they will have to apply to USFWS for an incidental take permit under Section 10 of the Endangered Species Act if the wetland they plan to alter harbors a listed species. That process is more complicated, takes longer (a year or more, compared with 30 to 60 days in a Section 7 process) and is fraught with greater uncertainty than the Section 7 process. In short, the "victory" at the Supreme Court may turn out to be a hollow one for many landowners, particularly in California. It may no longer matter whether a puddle is big enough to accommodate a duck's butt. But landowners will have even greater reason to worry that the puddle might harbor a fairy shrimp, red-legged frog or pupfish. Contacts: U.S. Army Corps of Engineers, South Pacific Division: 415-977-8004 U.S. Fish & Wildlife Service, Sacramento office: 916-414-6464 USFWS "Report to Congress on the Status and Trends of Wetlands in the Conterminous United States 1986 to 1997": http://wetlands.fws.gov/bha/SandT/SandTReport.html

Ballot measures generated and placed before voters by a public agency are not exempt from environmental review, a unanimous state Supreme Court has ruled. In the closely watched case of Friends of Sierra Madre v. City of Sierra Madre, the court said a ballot measure sponsored by a public agency should be treated differently than a voter-backed initiative. "As the Attorney General suggests, the distinction between initiatives generated by a city council and voter-sponsored initiatives serves a significant governmental policy," Justice Marvin Baxter wrote for the court. "Voters who are advised that an initiative has been placed on the ballot by the city council will assume that the city council has done so only after itself making a study and thoroughly considering the potential environmental impact of the measure. For that reason a preelection EIR should be prepared and considered by the city council before the council decides to place a council-generated initiative on the ballot." The case marks the state Supreme Court's first CEQA decision since 1997, when the court ruled that de-listing an endangered species is not exempt from CEQA review (Mountain Lion Foundation v. Fish & Game Comm'n, 16 Cal.4th 105, see CP&DR Legal Digest, August 1997). Susan Brandt-Hawley, attorney for Friends of Sierra Madre, called the ruling a needed clarification because some public officials believed that all ballot measures — whether sponsored by the city or by voters —need not comply with the California Environmental Quality Act. But attorneys for the city contended that state's high court has reversed many years of case law. "I definitely do think the case broke new ground in a significant way because there had been a line of Court of Appeal cases that had held that the submission of measures to the voters was not subject to CEQA," said Michael Zischke, a lawyer for the City of Sierra Madre. "Several of those cases were about council-sponsored measures, in part Lee v. Lompoc and the City of Albany case." In Lee v. City of Lompoc, (1993) 14 Cal.App. 4th 1515 (see CP&DR Legal Digest, May 1993), an appellate court ruled that CEQA did not apply to a city-sponsored ballot measure to permit a shopping center development. The Lee court said CEQA would apply to the ultimate project if voters approved the zone change. Citizens for Responsible Government v. City of Albany, (1997) 56 Cal.App. 4th 1199 (see CP&DR Legal Digest September 1997), built on Lee. In that case, an appellate court ruled that the city's submission of a development agreement to voters was subject to CEQA, but that the city could place a zoning amendment on the ballot without CEQA review. Sanford Svetcov, the attorney who argued the City of Sierra Madre's case at the state supreme court, said the high court read the CEQA Guidelines narrowly and effectively reversed the Lee and Albany decisions. "For 20 or more years, cities and counties have been putting measures on the ballot without CEQA review," Svetcov said. "It's a procedural decision." But Brandt-Hawley said that while the Guidelines might be in dispute, it is clear that there is no statutory authority to exempt public agency-sponsored ballot measures from CEQA. "I think it was just a very logical decision," she said of the state Supreme Court's ruling. The Supreme Court held that Lee was different from the Sierra Madre case because, in fact, an EIR was prepared on the project before it went to the voters. But the Supreme Court specifically repudiated a basic holding of Lee, that how a matter reached voters — whether by city council sponsorship or by voter petition — was irrelevant for CEQA. The case at hand involves preservation of 29 old homes in Sierra Madre, a small city in the San Gabriel Valley. In 1987, the city established a Cultural Heritage Commission and a regulatory process for protecting structures of cultural and historic significance. In 1997, the city repealed its ordinance and made future listings on the city's Register of Historic Landmarks voluntary. However, properties already listed on the registry remained on the list. Later in1997, a group of property owners petitioned the city to remove their homes from the register. City planners said delisting would require a review of historic resources under CEQA at a cost of about $2,500 per property. Neither the city nor property owners were willing to pay for a review, so city staff members recommended placing the issue before voters as a way of avoiding CEQA. In April 1998, 63% of voters approved Measure I-97-1, which removed the 29 homes from the city's historic register. Friends of Sierra Madre filed suit, alleging that the city should have completed an EIR on each of the 29 properties and contending that the city violated the Elections Code by not adequately informing voters of city amendments to Measure I-97-1 made after the sample ballot was printed. A trial court rejected the CEQA arguments but ruled that the city had violated the Elections Code. Both sides appealed. The Second District Court of Appeal ruled that the city had not run afoul of the Elections Code but did violate CEQA. The appellate panel invalidated the election results (see CP&DR Legal Digest, January 2000). The state Supreme Court accepted the case, generating a great deal of attention. About 80 cities and several development groups filed amicus briefs on the city's side. Attorney General Bill Lockyer and historic preservation advocates submitted briefs supporting the Friends. The city contended that CEQA (Public Resources Code § 21000 et seq.) and the CEQA Guidelines adopted by the Resources Agency do not distinguish between ballot measures a public agency originates, and measures that a public agency places on the ballot as a ministerial action after citizens have submitted an adequate number of petition signatures. Friends contended that CEQA does indeed distinguish between the two types of ballot measures and that agency-sponsored measures are subject to CEQA review. The state Supreme Court accepted the Friends' argument. Part of the decision was based on 1998 revisions of the Guidelines, specifically the Guidelines' notice of Stein v. City of Santa Monica, (1980) 110 Cal.App.3d 458. In Stein, an appellate court held that CEQA did not apply when a city, acting ministerially, placed on the ballot a citizen initiative to amend the city charter. "The addition of the citation of Stein to Guidelines § 15378 (b)(3) is more indicative of the agency's intent with respect to initiative ballot measures, suggesting the agency intended that the exemption apply only in the Stein situation, i.e., when placing an initiative measure on the ballot was a ministerial act compelled by law," Justice Baxter wrote. The Guidelines, plus language in Public Resources Code § 21080, subdivision (b)(1), which expressly excepts "ministerial projects," create a clear distinction between voter-sponsored and city council-sponsored initiatives, Baxter wrote. The state high court ruled that the city did not violate the Elections Code, but that the ordinance approved by voters still must be thrown out. "Since the petition adequately alleges noncompliance , failure to comply is not disputed by respondents, and the record confirms noncompliance, the appropriate relief is invalidation of the ordinance," Baxter wrote. The Case Friends of Sierra Madre v. City of Sierra Madre, No. S085088, 01 C.D.O.S. 2523, 2001 Daily Journal D.A.R. 3150, filed March 29, 2001. The Lawyers: For Friends: Susan Brandt-Hawley, Brandt-Hawley & Zoia, (707) 938-3908. For the city: Sanford Svetcov, Milberg, Weiss, Bershad, Hynes & Lerach, (415) 288-4545.

The railroad has been a force in American urbanism since the Iron Horse first pushed its way across the Western prairies and mountain ranges. Many Western towns, including Laramie and Cheyenne in Wyoming, were founded by the Union Pacific Railroad during the late 1860s on its drive to complete the Transcontinental Railroad. In other cases, small towns like Omaha, Nebraska, became big cities almost overnight, when thousands of men who worked for the railroad poured into town, followed by the people who made their living (honorably or otherwise) by inducing the railroad men to part with their money. In present-day California, rail continues to be an urbanizing force. The difference, of course, is that we are building new commuter-rail systems in already developed areas, rather than laying track across miles of wilderness. Perhaps it seems overblown to compare the projects being built in anticipation of the latest expansion of BART to the railroad towns. It is true that so-called "transit-oriented developments" are less spectacular than the sudden growth of railroad towns in the 19th Century, with their tent cities, gamblers, make-shift banks and brothels. In the Bay Area of the early 21st Century, however, the rapid transit system is stimulating new investment in neglected or unglamorous places. And, what is new, the investment is now happening even before the train comes to town. One recent beneficiary of BART-inspired investment is the city of San Bruno, a bedroom community of 42,000 people in San Mateo County just north of San Francisco International Airport. BART plans to complete a new station within a year just south of Interstate 380 and El Camino Real on the site of the Tanforan Park Shopping Center. The stop for BART, which serves San Francisco and the East Bay, will be within walking distance of an existing station for Caltrain station, which serves the Peninsula and South Bay. For years, the immediate area has been in something like suspended animation; much of the area has been occupied by the Navy's Western Division Naval Facilities Engineering Command (EFA West) which consists of little more than wooden barracks rehabbed as office buildings. A 27-acre Marine Corps Reserve Training Center lies directly north, and is not part of the plan. In 1997, after the Navy decided to close EFA West, the city drafted specific plan calling for a mixed-use district on the 20-acre site. Last spring, the U.S. General Services Administration auctioned off the property for about $20 million to a partnership of The Martin Group and REGIS Homes of Northern California, both of San Francisco. The resulting project is The Crossing (named for the meeting of the freeway and El Camino Real), a $200 million master plan for 300,000 square feet of office space, a 500-room hotel, 400 dwelling units (of which nearly half are assisted-living units for seniors), and a two-acre park. Twenty acres of land is a big opportunity in San Mateo County, and it is not surprising that two well-heeled developers pounced on the property. The urban design of the former naval site is awkward, however. The site is hemmed in by the freeway to the south, and on the east by the somewhat unsightly strip condition of El Camino Real � a ragtag collection of spa dealers, automotive shops and the like. South of El Camino Real is the enormous asphalt parking lot of the Tanforan mall, a condition which discourages people from walking in the area. To the north is a large brick-and-concrete Marine Corps building. For better or for worse, The Crossing needs to be an inward-looking, self-contained area. The intent of the developers is to make The Crossing echo the urban design of the Bay Area, according to Martin Group partner David Cropper: streetside parking (but few surface parking lots), wide sidewalks and a continuous street-wall of buildings. In addition, the developers are providing three types of housing: walk-up or "stoop-style" townhouses, loft units above retail, and assisted-living units. In short, the developers want something akin to a miniature San Francisco or Oakland. The resulting plan by the San Francisco office of St. Louis-based Hellmuth, Obata + Kassabaum (HOK) Inc. reflects the constraints of both the manmade and natural world. To the east, the developers and architects have created a large, formalized public plaza or square; the open space accommodates two, parallel, 40-foot water easements. A pair of identical office buildings serve as bookends for the park. The office buildings look pleasantly symmetrical in plan but may seem oppressively similar when built. In addition, a number of mature pine trees exist on the site, which the architects were careful to preserve by aligning an "esplanade" in a north-south direction down the center of the plan. North of the esplanade is a block of row housing, with its own interior courtyard. Designed with walk-up stairs, the row housing strives to be classic, urban stoop housing. Opposite the row housing is a neighborhood-serving retail strip, which helps hide a multi-story parking structure for the seven-story hotel to the east. If the rest of the plan is turning its back to the freeway, the hotel is an unabashed freeway building. The loft units are located in the commercial building fronting on El Camino Real, while the senior units are off by themselves, just west of the Marine Corps property. In all, the plan is impressive evidence of the high degree to which mainstream developers have embraced urbanity and genuine mixed-use � undoubtedly because these are elements that are easily marketable to Bay Area professionals. If the plan is admirable for envisioning a "full service" community with urbane values, it is also a little frustrating because the site is so small and the project does not link to the rest of town. Unlike the open spaces traversed by 19th Century locomotives, the urban spaces of the present-day Bay Area are constrained by major roadways and other conditions that can get in the way of creating a larger, pedestrian-oriented city. The most positive thing to say is that this project is energetic, introduces mixed-use planning notions to the area, and it wants to expand. Happily, the possibility of future growth lies to the north, where the Marine Corps facility will someday be demolished and replaced with new development. The Crossing will have its fullest bloom when new investment � with similar design values, I hope � arrives and enlarges the pedestrian realm of San Bruno.

The Ninth Circuit Court of Appeals has upheld a lower court's ruling against the Mohave Valley Irrigation & Drainage District in a water rights battle against the Interior Department. At dispute was an allegedly ambiguous contract regarding the western Arizona district's Colorado River water rights. According to a 1968 contract between the two agencies, the district is entitled to 41,000 acre-feet of water annually from the Colorado River system. But the Interior Department reduced the district's water allotment, saying that landowners within the district who hold present perfected rights (PPRs) were also receiving Colorado River water. Rights to water from the Colorado River system that have existed since June 25, 1929 are considered PPRs by the Supreme Court. Arizona v. California, 376 U.S. 340 (1964). The water district contends the 1968 contract is ambiguous because it does not address PPRs. However, Interior argued that PPRs were recognized by the Supreme Court in Arizona v California, before the district and Interior entered into the contract. And Interior maintained it can fulfill its contractual obligation if it calculates the district's allotment by subtracting water provided to holders of PPRs located in the District from the amount stated in the contract. In mid-April, the Ninth Circuit ruled that the contract between the district and Interior was not ambiguous because the contract defines "water delivered" as "all water pumped by the District or by any other person, firm, or Corporation, from wells located within or outside the District for use within the District or from wells located within the District for use outside the District." The contract does not make an exception for water delivered to PPR holders, the court held. The case is Mohave Valley Irrigation & Drainage District v. Gale A. Norton, No. 99-16927, 2001 Daily Journal D.A.R. 3578.

A bill that is intended to put teeth in the state's housing element law is providing a major battleground between housing advocates and local government officials. The measure, SB 910 (Dunn), would let judges fine a city or county for not adopting a housing element that satisfies the state Department of Housing and Community Development . The bill also would withhold highway money from noncompliant jurisdictions. The League of California Cities, the California State Association of Counties and scores of individual jurisdictions have voiced their strong opposition. "It switches land use authority to the state," protested Daniel Carrigg, a League lobbyist. He said SB 910 is the type of measure likely to get approved because it shifts the blame for affordable housing woes to local government and it costs the state nothing. But the Job-Center Housing Coalition has made passage of SB 910 a priority this year, and housing advocates have vowed to fight hard for it because so many cities have refused to accommodate affordable housing. In April, HCD released its annual housing element compliance report, which said that about 40% of cities and counties do not have valid housing plans. The Senate Housing and Community Development Committee, of which Sen. Joe Dunn (D-Santa Ana) is chairman, passed the bill in early April, but Dunn amended the legislation three weeks later. However, the opposition remains in place. Dilapidated courthouses throughout California would receive state-funded overhauls if a recommendation by the Task Force on Trial Court Facilities is heeded. The recommendation is the result of a study released in April by the Administrative Office of the Courts. The study found 451 courthouses were "functionally and physically deficient." Among the recommended improvements are security and safety upgrades, increased accessibility for the disabled, expanded jury assembly space, overcrowding relief, and major building system repairs including ventilation and air conditioning replacement. The task force called on the state — rather than counties, which have traditionally funded courthouse projects — to assume the cost of the needed improvements. The state drives the need for new facilities and can ensure uniformity of access to all facilities, the report said. Costs for the repairs are estimated at $140 million annually over 20 years, according to the report. The task force is expected to issue a final report to the Legislature by October 1. The Legislature would need to approve any transfer of financial responsibility from the counties to the state. The report is available at www.courtinfo.ca.gov The Sacramento City Council unanimously approved a 32-story, mixed-use structure for an empty downtown site that has long been an eyesore. The J Street building across from Cesar Chavez Plaza will be comprised of about 250,000 square feet of office and retail space topped by 10 floors of upscale apartments. Retail stores will front the sidewalk. Under the deal approved in April, the city will provide $16.7 million in subsidies for the Metro Place project. The city will deed its one-half interest in the property to the developer, First Key LLC, the city will offer a $7.2 million tax rebate, and the city will build a parking garage for the structure. Los Angeles County supervisors have upheld a Regional Planning Commission decision to deny permits for a large gravel quarry on Bureau of Land Management property near Santa Clarita. During the late-April vote, supervisors said they would consider alternatives that had fewer environmental impacts. The City of Santa Clarita spent $1 million on its campaign against the gravel mine proposal and bussed hundreds of protesters to several supervisors' meetings in downtown Los Angeles. City officials and area residents said the proposed quarry would be incompatible with the many houses that have been built in the area in recent years (see CP&DR Local Watch, January 2001). Cisco Systems has pulled back on plans to build new campuses around the Bay Area. The San Jose-based maker of computer hardware has canceled its search for an expansion site in Sonoma County but said it would maintain its 600-employee facility in Petaluma. Cisco also removed its application for a major complex in the East Bay city of Dublin from the city's fast-track approval process. Cisco has announced it will lay off about 8,500 people nationwide, and company officials concede they have had to re-evaluate their facility expansion plans. The company continues to move forward planning for a 6.6-million-square-foot campus in South San Jose, although the pace of development might slow. Federal officials announced in April that they have earmarked $1 million from the North American Wetlands Conservation Act for wetlands restoration in the Tulare Basin. The funds, combined with nearly $12 million from the U.S. Fish & Wildlife Service, the Semitropic Water District in Kern County and private landowners, will fund about 2,700 acres of land purchases and another 20,000 acres of habitat enhancement in the southern San Joaquin Valley. About 99 % of historic wetlands in the basin have been lost to farming or urban development. A federal judge has approved an agreement between environmental groups and the Bureau of Land Management regarding 11.5 million acres of BLM land in southern California deserts from Mono County to the Mexican border. Among other things, the plan requires the BLM to revise plans for protecting 24 endangered species and to ban grazing on habitat for the desert tortoise. The agreement — which has been praised by environmentalists but blasted by ranchers and off-road vehicle users — is also likely to curb some mining. The agreement was finalized about one month before the U.S. Fish & Wildlife Service issued a report in April that said the Army's proposal to expand Fort Irwin's tank training facilities near Baker could wipe out a population of desert tortoises and nearly eliminate the endangered Lane Mountain milk vetch plant. The Army said it is doing its own study. Congressional approval is needed before the BLM transfers the 131,000 acres in question to the Army. Correction. The attorney who argued the California Environmental Quality Act case for the City of Sierra Madre at the state Supreme Court was misidentified in the March issue. Sanford Svetcov of Milberg, Weiss, Bershad, Hynes & Lerach represented the city. See page 7 for the court's decision in the case.

Expanding the capacity of the nation's aviation system has quickly risen toward the top of the Bush administration's transportation priorities. Both Transportation Secretary Norman Mineta and Federal Aviation Administration chief Jane Garvey have spoken about the need to build more runways during the next decade, and they have suggested that speeding federal environmental reviews is one way to hurry along construction. The Bush administration's advocacy is welcome news for proponents of San Francisco and Los Angeles airport expansion and construction of a new airport at the former El Toro Marine Corps base in Orange County — all projects with major regional implications. However, analysts caution that the federal government's ability to force runway construction is limited. And they say that local political pressures — not federal environmental regulations — are usually responsible for stalled or canceled airport projects. Bush administration officials say the nation needs more runways to accommodate a projected increase in passenger air travel of nearly 50% between 2000 and 2010, and even greater growth in air cargo. The economy increasingly relies on aviation to move goods, workers and consumers efficiently, they say. During a speech in late March to the American Association of Airport Executives, Mineta emphasized the need to expand aviation infrastructure. He said that implementing existing expansion plans at the nation's busiest airports, including SFO and LAX "will substantially increase the capacity of the national airport system." Mineta said the FAA will propose environmental streamlining measures to Congress. "We are also working on a number of initiatives of our own to expedite and streamline environmental reviews for airport improvement projects without legislation," he said. "For example, the FAA has proposed establishing a team for each new EIS for a major runway enhancement project at large hub primary airports." San Francisco is among the airports to receive one of these EIS teams. Mineta continued, "We are working on an initiative to streamline environmental requirements for all airport projects within the current structure of environmental laws. This includes expansion of the projects that are exempted, using a shorter environmental assessment form, and limits on EIS size." Details will be worked out this summer. The pronouncements sounded good the airport executives group, which has complained that review processes drag on too long. Using the same reasoning, U.S. Sen Kay Bailey Hutchison (R-Texas) has introduced legislation (S. 633) that would require federal, state and local agencies to perform all reviews required by the National Environmental Policy Act concurrently, and require the Transportation Department to set a date certain for completion of environmental studies. Whether the implementation of federal environmental regulations — and even the regulations themselves — needs to change is a growing debate, with environmental group and business interests digging in their heels on opposite sides. However, David Luberoff, Associate Director of the A. Alfred Taubman Center for State and Local Government at Harvard, said he could think of only two recent airport projects that were halted at the federal level — a third airport for Chicago and a new airport at the former Homestead Air Force base in South Florida. And the south Chicago proposal appears to be getting back on track. "This is not the first administration that has tried to push on building more airport capacity. The question is to what extent are the obstacles federal, and to what extent are the obstacles local?" said Luberoff, an infrastructure policy expert. Increasing airport capacity was a major priority during the later half of the Reagan administration and during the first Bush administration. Yet the only new airport to come from that era was in Denver, Luberoff said. The Denver airport was built primarily because city officials selected a site far from town and because the local economy was so weak at the time that many people agreed on building the airport to stimulate commerce, he said. The only existing airports to add substantial capacity in recent years are in cities such as Atlanta and Dallas, where the business community dominates the political scene, Luberoff observed. California has a very different political environment. "If you think about what is preventing a new airport at El Toro or expansion at LAX, it is intense local opposition. There is no local political consensus for the project," Luberoff said. Michael Dardia, a research fellow at the Public Policy Institute of California, agreed that the federal government's role is limited. The proposal to build new SFO runways in the bay, for example, remains primarily a local issue. Washington can provide carrots for projects, Dardia said. It could pay for the inevitable cleanup of pollution at El Toro, grease the base reuse process with cash, or provide grants to insulate homes near the site, he said. "If the federal government was really on board, it certainly could throw money at it. But these are wealthy communities so that might not have as much influence," Dardia said. Federal officials "are not really in a position to force the community to accept this as an airfield. This is an issue that the FAA is wrestling with in general." Federal officials could also use sticks in the airport capacity debate, such as boosting landing fees for certain times of day at SFO to force airlines to use Oakland or San Jose airports. A trial balloon for such an idea was floated in April. What will happen with California's airports is far from certain. The debate over building runways for SFO in the bay — the only place to put new runways — rages on. Legislation is advancing (SB 244, Speier) that would essentially give San Mateo County supervisors veto power over the project. The airport is in San Mateo County, and it is those supervisors' constituents who the most vocal project opponents. In April, SFO released a report it commissioned by Charles Rivers Associates that found there are no real options for increasing Bay Area aviation capacity besides expanding SFO. Four hundred miles to the south, the Southern California Association of Governments in April adopted a Regional Transportation Plan that spreads airport growth across the region. The plan calls for half as much expansion as the City of Los Angeles has planned for LAX, and a quadrupling of Ontario airport's usage. The plan also assumes an El Toro airport would be about half the size of the current LAX by 2025. Los Angeles officials vowed to push ahead with their $12 billion expansion anyway. El Toro remains mired in litigation and political bickering. A fourth ballot measure regarding El Toro's future is likely to appear this November. Contacts: David Luberoff, A. Alfred Taubman Center for State and Local Government, (617) 495-1346. Michael Dardia, Public Policy Institute of California, (415) 291-4416. U.S. Department of Transportation: www.dot.gov American Association of Airport Executives: www.airportnet.org Southern California Association of Governments, Regional Transportation Plan: www.scag-rtp.govconnect.org

The City of West Hollywood had the authority under the Vehicle Code to turn a through road into a cul-de-sac to accommodate a development, the Second District Court of Appeal has ruled. The court rejected project opponents' contention that the city had to prove that the street was no longer needed for vehicular traffic. In the mid-1990s, the city adopted the Sunset Specific Plan for a portion of Sunset Boulevard known as the Sunset Strip. The city certified a master environmental impact report on the plan in 1996. Sunset Millennium Associates proposed a major project on the south side of Sunset Boulevard, within the specific plan area. The development — on which work has since begun — includes a 10-story hotel, 159,000 square feet of office space, 155,000 square feet of retail development, and two auditoriums for live theater. The city determined the project, though larger than envisioned by the specific plan, would not have any additional significant environmental effects, so the city did not issue a new environmental document. Project opponents sued over the city's environmental review of the project, a development agreement between the city and Sunset Millennium, and the city's decision to create a cul-de-sac on Alta Loma Road. Los Angeles County Judge David Yaffe ruled for the city, and a three-judge panel of the Second District, Division Five, affirmed the decision. The appellate court published only the portion of its opinion addressing the creation of a cul-de-sac. The proposed development involves blocking off Alta Loma Road, a side street off Sunset Boulevard. City officials, relying on § 21101, subdivision (f), of the Vehicle Code found that Alta Loma is not a regionally significant traffic corridor and approved the creation of a cul-de-sac. Project opponents argued that Vehicle Code § 21101, subdivision (a)(1), required the city to find that it no longer needed Alta Loma for vehicular traffic before the city blocked the street. Area residents have complained that the road closure would worsen traffic along Sunset Boulevard and impede emergency vehicle access. However, the appellate court ruled that the two subdivisions of the statute are independent. " ehicle Code § 21101, subdivision (a)(1), grants authority only for a complete closure of a street to all vehicular traffic," Presiding Justice Paul Turner wrote for the court. "It is undisputed the present case involves the creation of a cul-de-sac, not the complete closure of a street to vehicular traffic. The street remains open to vehicular traffic and no residence or business on Alta Loma Road is directly or indirectly inaccessible." "The city has not closed to traffic a major street running through one or more adjacent cities," Turner continued. "It has created a cul-de-sac on a one-block-long residential street situated entirely within its borders. There was no evidence placing a cul-de-sac on Alta Loma Road would interfere with the delivery of emergency services or otherwise adversely affect the public health and safety." In the unpublished portions of the its decision, the court upheld the city's reliance on the master EIR for the Sunset Millennium project. The court ruled that opponents failed to show substantial evidence — not just a fair argument — of significant potential traffic impacts. The court also upheld the development agreement, saying the city did not surrender its policy power by freezing regulations for the developer. The court said a $5.2 million fee it accepted from the developer was voluntarily paid and never challenged by the developer. Project opponents had contended the fee amounted to a bribe paid to the city treasury. The Case: Save the Sunset Strip Coalition v. City of West Hollywood, No. B143615, 01 C.D.O.S. 2236, 2001 Daily Journal D.A.R. 2827, filed March 20, 2001. The Lawyers: For the coalition: Joel Moskowitz, Moskowitz, Brestoff, Winson & Blinderman, (310) 373-9790. For the city: Gregory Kunert, Richards, Watson & Gershon, (213) 626-8484. For the developer: James Arnone, Latham & Watkins

A billboard company jumped the gun when it claimed two of its proposed signs were "deemed approved" because of delays by the City of Los Angeles, the Second District Court of Appeal has ruled. The unanimous three-judge panel upheld a trial court's dismissal of a lawsuit filed by Eller Media Company. In April, May and June of 1999, Eller filed three applications for permits to construct three separate billboards in Los Angeles. The third application received approval, but the first two were referred to the city's Community Redevelopment Agency because the sites are in the Hollywood Redevelopment Plan area. When the CRA had not made a decision on the applications by October 25, 1999, Eller filed a lawsuit claiming that the applications were "deemed approved" under the Permit Streamlining Act (PSA). Los Angeles County Superior Court Judge Dzintra Janavs dismissed the lawsuit, and Eller appealed. The Second District explained that the Permit Streamlining Act (Gov. Code § 65920 et seq.) limits the time for final approval or rejection of applications based on the environmental review process. A public agency must decide on a project within 180 days of certification of an environmental impact report, or within 60 days of adoption of a negative declaration or the determination of CEQA exemption. But Eller did not wait for environmental determinations before filing the lawsuit. Prior to Judge Janavs's ruling, the CRA issued initial studies for both billboard applications. The CRA recommended a supplemental EIR be prepared for a sign proposed on Sunset Boulevard, and a mitigated negative declaration, with project modifications, for a sign proposed on Cahuenga Boulevard. "Until the Supplemental EIR was prepared for the Sunset sign, or the Mitigated Negative Declaration issued for the Cahuenga sign, the time for approval or disapproval pursuant to the PSA did not begin to run," Judge Norman Epstein wrote for the court. "Appellant therefore cannot state a cause of action establishing a right to have its applications deemed approved pursuant to § 65956, subdivision (b)." The court also rejected Eller's contention that the city's failure to prepare initial studies within a time required by CEQA Guidelines also supported the "deemed approved" claim. Epstein wrote: "Allegations that the CEQA determinations were not performed in a timely manner are not sufficient to state a cause of action for ‘deemed approval' of the applications." The Case: Eller Media Company v. City of Los Angeles, No. B142004, 01 C.D.O.S. 2324, 2001 Daily Journal D.A.R. 2903, filed March 21, 2001. The Lawyers: For Eller: Richard Hamlin, (310) 822-2676. For the city: John Cotti, deputy city attorney, (213) 847-0564.