A developer whose project was the subject of a California Environmental Quality Act lawsuit is not entitled to attorneys fees for helping a city defend the suit, the Fourth District Court of Appeal has ruled. The unanimous three-judge panel held that Lutheran High School Association of Orange County (LHS) did not meet the requirements of the private attorney general doctrine under Code of Civil Procedure § 1021.5. That law allows judges to award attorneys fees to a successful party a lawsuit that "has resulted in the enforcement of an important right affecting the public interest." However, no real party in interest — usually, as here, the project developer — has ever received fees under this doctrine in a CEQA case, the court said. In 1999, the City of Orange Planning Commission approved a conditional use permit and mitigated negative declaration for the high school, which has been on a 12.82-acre site on Santiago Boulevard for 30 years. The permit allowed the school to build a second story, allowing an enrollment increase from 682 to 950 students. The permit also allowed construction of a new gymnasium, erection of ball field lights, and expansion of the parking lot from 250 to 392 spaces. Jere Jobe, a neighbor, fought the project throughout the city's approval process, saying the larger high school would impact traffic, lower property values and create "special problems" for the neighborhood. Jobe demanded an EIR. After the City Council rejected Jobe's appeal of the Planning Commission decision, he filed a lawsuit against the city that attacked nearly all of the city's environmental findings and the environmental review process. Orange County Superior Court Judge Randell Wilkinson ruled for the city, saying Jobe had not presented "substantial evidence" support a "fair argument" that the project may have a significant environmental impact. The appellate court upheld that ruling in a lengthy — though unpublished — portion of its decision. The court ruled that Jobe's arguments regarding traffic, aesthetics, air quality, water quality and hazardous materials were based on his opinion, not on any evidence in the record. The court also ruled that it need not consider other arguments Jobe raised in his lawsuit because he did not raise them at the City Council level. The court upheld the city's process and the imposition of mitigation measures that were not identified in the mitigated negative declaration. In the published part of its opinion, the court dealt with the high school's appeal of a postjudgment order denying attorneys' fees. The high school argued that it advanced an important public right, namely education. The school argued that by privately educating students, the school was saving taxpayers money. The school also argued that because it is a nonprofit organization, it had no economic interest in the project. The court disagreed. The high school "certainly has a significant pecuniary interest in the physical expansion of the high school it owns and operates. The facilities are a significant asset of LHS." The court cited Woodland Hills Homeowners Organization v. Los Angeles Community College Dist., (1990) 218 Cal.App.3d 79, a suit over the leasing of surplus district property to a religious organization. The religious organization defended the suit alongside the district and prevailed. But the group did not receive attorneys' fees. "Where the result of the litigation is judicial approval of a challenged governmental action, the defense of which was in the pecuniary interest of the defendant litigating alongside the governmental entity, it is difficult to satisfy the requirements of Code of Civil Procedure §1021.5, i.e., that the defense by the private litigant was necessary and that the financial burden resulting from its defense is appropriately shifted to the plaintiff," the court concluded in Woodland Hills. The Fourth District added, "An award of attorney fees under Code of Civil Procedure § 1021.5 requires that the claimant show the cost of its legal victory transcended its personal interest. LHS made no such showing here." The Case: Jere A. Jobe v. City of Orange, Nos. G026974, G027732, 01 C.D.O.S. 2907, 2001 Daily Journal D.A.R. 3543. Filed April 10, 2001. The Lawyers: For Jobe: Michael K. Maher, Maher & Maher, (949) 721-7555. For the city: David DeBerry, city attorney, (714) 744-5580. For the high school: Ronald Van Blarcom, Van Blarcom, Leibold, McClendon & Mann, (714) 639-6700.

Redevelopment of closed military bases in the City of Alameda is moving forward thanks to the settlement of a lawsuit filed by affordable housing advocates and environmentalists. The settlement clears the way for a 600-unit housing development and a 1.3-million-square-foot business park at the former U.S. Navy Fleet Industrial Supply Center. Meanwhile, the city is in the process of choosing a master developer for about one-third the 2,600-acre former Alameda Naval Air Station, which is next to the closed supply center at the northwest end of the island city. City officials, planners and civic activists agree that the closed military bases offer the city both great opportunities and enormous challenges. The closed bases provide the nearly built-out city with its last chances for large-scale development — and on a waterfront site with spectacular views of San Francisco Bay. However, the sites contains a great deal of contamination left from the Navy, and there are concerns about how to handle the traffic that development will generate. The Naval Air Station closed in 1997. At its peak, the base employed 14,000 civilians and service personnel. Since the closure, the City Council (the official base reuse board) has leased 2.7 million square feet of former Navy buildings to about 90 private companies. Approximately 2,000 people now work on the closed base, according to city Development Services Director Doug Yount. Just prior to the base's closure, the city adopted a 20-year plan for the site, which is now known as Alameda Point. Although short on specifics, the plan calls for a wide range of uses, including single-family and multi-family homes, retail businesses, offices, light industry, a public marina, a golf resort, parks and a wildlife refuge. "It is truly a mixed-use, urban infill development," Yount said. What form that development will take depends a great deal on the master development agreement proposed for 770 acres of the Naval Air Station. After receiving proposals from seven developers, the city has whittled the finalists to three heavyweights — Catellus Development, Centrex/Shea Homes/Shea Properties and Harbor Bay/Lennar. All three have pitched variations on a New Urbanist-style development. City officials hope to select one master developer this summer for what could be up to $1 billion worth of development, Yount said. Naturally, reuse of the base has be a controversial topic in a town where growth battles date to the 1970s, when voters approved a ballot measure that prohibits replacement of single-family homes with multi-family structures. Complicating things is the fact that activity at the base has been below peak levels since the mid-1990s. "You have a lot of folks who forget what it was like when the base was here. We used to have 14,000 people working and living at that base," Yount said. "People have gotten used to having it quiet." Traffic remains a major concern because the city relies on various bridges and tubes to connect to the mainland cities of Oakland and San Leandro. Yount contends the city needs to get as creative as possible with light rail, a tram, ferries and even hovercraft service. "It may seem like a crazy idea," he said, "but what's your alternative? Build another bridge?" Patrick LaCava, an Alameda resident and restaurant owner who has followed the city's planning process, said he is confident city officials can figure out how to handle traffic from Alameda Point. His bigger concern is seeing the right mix of housing and retail development that will bring people to the area. "It's got the greatest views around, and it would be wonderful to make better use of those," LaCava said of the site. City residents, he added are "spending our money elsewhere. We go to Berkeley or Walnut Creek, and we'd much rather spend the money on the island." The full extent of contamination at Alameda Point remains unknown. Yount estimates there is at least $100 million worth of remediation necessary. The Navy is responsible for the cleanup. Dave Berger, assistant city manager for community and economic development, said the property is now "worth less than nothing" because of the contamination and need to build new infrastructure. "We've told the developer that this is not for the squeamish," Yount said. However, city officials worked past contamination concerns at the 215-acre Fleet Industrial Supply Center (FISC) adjacent to the closed Naval Air Station. Last year, the Department of Toxic Substances Control approved a "dirty transfer" of the site from the Navy to the city, meaning that full remediation was not required prior to transfer, as it usually is. At issue are about 12 acres tainted with PCBs, cadmium, petroleum wastes and other toxic materials that will cost at least $3.5 million to remediate, according to the state. The Navy is still responsible for the cleanup and is planning to begin work later this year, said Jeff Bond, the city's development manager. In May of 2000, the city approved a mixed-use project on the 215-acre site, for which Catellus is the developer. The project called for about 540 dwelling units, a 1.3 million-square-foot office and research and development park, five parks of various sizes, a waterfront promenade and an elementary school site. But two advocacy groups quickly filed a lawsuit alleging the city violated the California Environmental Quality Act. Alameda County Superior Court Judge Richard Hodge urged the parties to settle, which they did in March. Under the settlement, the city and Catellus agreed to provide an additional 60 units of very low- and low-income housing, and agreed to earmark more of the already approved moderate-income housing for people with incomes of 100% of median or less. Additionally, the city agreed that 25% of all housing developed in the overall base redevelopment will be affordable. Getting affordable housing concessions has been particularly tricky because of popular sentiment against development of lower-cost units, said Tom Matthews, chairman of Renewed Hope, a housing advocacy group that sued the city. He and others urged the city to refurbish 590 units of shuttered military housing on the FISC site for poor people. "We were not successful in convincing the city not to tear down those units and replace them with $400,000 and $500,000 homes," he lamented. But Matthews, a former housing official for the city, understands the politics. "Like most communities, everybody talks about it as a great thing for the community. But when it comes time to approve a particular project on a certain site, nothing gets approved." Assistant City Manager Berger, however, said the old Navy apartments in question would have cost $83,000 per unit to bring up to code, a cost that did not include needed infrastructure improvements. He said the city's commitment to affordable housing can be seen in the lawsuit settlement. The settlement also calls for additional soils testing at the FISC site, with results to be made public, said Eve Bach, an economist and planner for Arc Ecology, one of the plaintiffs. Although the settlement does not require more cleanup, "I guess we feel confident that if there is a problem there, they won't be able to sweep it under the rug," Bach said. The lawsuit delayed development by about nine months, said Bond, the city's development manager. Officials are now piecing together a financing package to fund demolition of old military buildings and construction of backbone infrastructure at the FISC site. Housing construction could begin by about the first of the year, he said. The timing of business park development depends partly on the economy. While the city is closely involved with development of the FISC site, it wants a private company to handle redevelopment of the much larger Naval Air Station site. A city the size of Alameda does not have the staff, capital and expertise to serve as executive developer of such a large project, said Assistant City Manager Berger. City officials are pleased to have received interest from large developers who are pursuing the project. "We want it to be spectacular, but it's not going to have anything that is out of character with the community," Bond said. That means houses with million-dollar views will be part of the project — and waterfront amusement parks will not. The city figures the 770 acres can accommodate about 1,300 houses, 750 multi-family units, 3.2 million square feet of offices and businesses, 900,000 square feet of light industry, 100,000 square feet of retail uses, a marina with 900 boat slips, and 144 acres of parks and public open space. Elsewhere on the closed Naval Air Station, city officials have set aside a large portion called the "Northwest Territories," for which they are in the early stages of planning a golf course and resort, said Berger. Because the Northwest Territories are in the Tidelands Trust, the property must remain in the city's possession, and it can only be developed with recreational amenities, visitor-serving commerce, and maritime-related facilities. Another 574 acre along the bay has been set aside as a wildlife refuge for the California least tern, an endangered bird that breeds on the site. Contacts: Doug Yount, Alameda development services director, (510) 749-5810. Dave Berger, Alameda assistant city manager, (510) 749-5920. Tom Matthews, chairman, Renewed Hope, (510) 231-3991. Eve Bach, economist/planner, Arc Ecology, (415) 495-1786. Alameda Point redevelopment website: www.alameda-point.com

The new U.S. Census figures tell us that California is growing, which we knew. But the Census also reveals that California is changing in ways we may not have recognized – and that may mean that we no longer have the luxury of planning our communities the way we used to. According to figures released in late March, the state's population increased by more than 4 million people during the 1990s, reaching 33.9 million. That's less than the 6-million-person increase of the 1980s, but it maintains the state's longstanding trend of rapid population growth. California has reliably added about a half-million people annually for the past 60 years. But it is not the growth per se that is altering California anymore. We as a state are fundamentally changing as well — and that's because we are becoming a more mature and much more ethnically diverse state. This is not exactly news, as the same trends turned up in the 1990 Census. But the 2000 Census figures drove home the point in ways no one could deny. The fact that we are a mature and diverse state is reinforced by two underlying forces. These two trends are: 1. We are becoming an Hispanic state far faster than anyone predicted. 2. Most of our population growth is still in coastal areas. Individually, these two trends are important enough. The first is obvious, but the depth and extent of it is just becoming clear. The second is counter-intuitive — not something that even planning experts usually realize. Together, they paint a powerful portrait of the California that is emerging today. And they call into question many traditional land use planning practices in California. Most of California's planning laws and practices — ranging from the General Plan to the California Environmental Quality Act — assume that California operates under what might be called the "suburban growth" model of urban development. Planning is necessary because new suburban communities are created to accommodate a growing population. But in most cases, this isn't true anymore. What the two Census trends suggest, more than anything else, is that the suburban era is over in California. Let's take those two trends one at a time. 1. We are becoming an Hispanic state far faster than anyone predicted. The news media did a good job of reporting the rapid Hispanic population growth. Today, more than one-third of the state's population is Hispanic. But even the news reports did not truly convey the extent of the Hispanic switch. Here's the best way to let it sink in: Almost 80% of the state's net population growth was Hispanic. Between 1990 and 2000, California grew by approximately 4.1 million people. The Hispanic population grew by 3.2 million people. Some parts of the state are bucking this trend. As the accompanying map shows, in virtually all of the foothill and High Sierra counties, the percentage increase in Hispanic population is far below the overall population growth — indeed, in most of these counties Hispanic growth as a percentage of overall growth is only half the statewide average or less. And "Hispanicization" of the population is moving more slowly than the statewide average in big chunks of the state — principally the Bay Area and adjacent Central Valley counties such as Sacramento and San Joaquin. But in Southern California, the trend is overwhelming, as it is throughout most of the San Joaquin Valley. And the shift in population is occurring fastest in a few isolated and sparsely populated counties, including Modoc, Trinity, Glenn, and Inyo counties. On the municipal level, this trend is accelerating remarkably throughout the state — especially in Southern California, but elsewhere as well. In many cases, older, mature cities that are not growing are changing dramatically. For example: o In the college town of Berkeley, the city's population remained constant at approximately 103,000 people. But the Hispanic population grew from 1,300 to 10,000 people. o In Inglewood, an historically African American community near Los Angeles International Airport, the population grew by only 3,000, to 112,000. But the Hispanic population increased by 9,500, and Hispanics now represent almost a majority in the city. o Even in cities that long ago gained Hispanic majorities, the Hispanic population growth is still remarkable. For example, in Bell Gardens, a poor suburb of Los Angeles, the population was already 90% Hispanic in 1990. But the 2000 Census revealed that Hispanics now make up 96% of the population. The Hispanic population grew by 4,000, while the non-Hispanic population dropped by 2,400. o In a number of cities, the Hispanic population rose even though the overall population went down. One case in point was Marina, a Monterey County community hard-hit by the closure of Fort Ord. Overall population dropped from 26,400 to 25,100. But the Hispanic population doubled to 5,800 and now represents more than 20% of the population. There were a few exceptions. Some Sacramento suburban communities that are rapidly becoming more middle-class shed Hispanic population and added non-Hispanic population. In most cases, however, even the exceptions to the Hispanic trend prove the rule of California's new ethnic diversity. Many cities that increased in population but lost Hispanic population — Rosemead, Walnut, San Gabriel — are actually turning over from a Hispanic/white mixture to a largely Asian population. 2. Most of our population growth is still in coastal areas. This one's counter-intuitive but true — and the truth carries important implications. We constantly hear about rapid growth in California's inland areas, especially the Central Valley and the Inland Empire. The percentage of growth in these areas is enormous — and the potential impact on the environment and agriculture is considerable. But the fact of the matter is that the state's coastal areas are still adding more people than the inland areas. Some of percentages are not as great because the population base is already large. But the raw numbers are staggering. For example, the population increase in the four Southern California coastal counties — Ventura, Los Angeles, Orange, and San Diego — totaled almost 1.5 million people during the 1990s, or almost 40% of the state's growth. The population increase of the nine Bay Area counties was about three-quarters of a million people, or about 15% of the growth. Together, these 13 urban counties — all touching either the coast or the bay, and most already very crowded — added 2.2 million people, or 54% of the state's population growth. Los Angeles and Orange counties alone added more people than the entire Central Valley. The Valley added only slightly more people than the Bay Area (850,000 versus 760,000). Perhaps the most dramatic way to show this is to compare the growth in the South Bay and East Bay counties with the adjacent Central Valley counties that are becoming bedroom suburbs. All of these counties were among the top 15 for population increases during the 1990s, and the Central Valley counties grew at a faster percentage rate. But the Bay Area counties added far more residents. People in Sacramento, for example, are always talking about spillover from Silicon Valley — sometimes in a good way (good jobs) and sometimes in a bad way (worse traffic). In fact, Santa Clara County and Sacramento County added almost exactly the same number of people during the 1990s — between 180,000 and 185,000. The difference, of course, was that in Santa Clara County, the new residents tended to double up and live in garages; whereas, they were much more likely to gobble up starter homes in Sacramento County. Even more remarkable is the fact that the East Bay counties added much more population than their Central Valley counterparts. Everybody knows about the commute spillover across Altamont Pass on Interstate 580. The common assumption is that this is occurring because Alameda and Contra Costa counties are either "filling up" or "shutting down," or both. There is no question that the Central Valley counties are growing fast. Stanislaus and San Joaquin counties together added about 160,000 people during the 1990s. What is remarkable, however, is that this was the same population increase as was experienced in Alameda County alone. And Contra Costa County added almost as many (145,000). In fact, the three East/South Bay counties added more people than did the three Central Valley counties — Stanislaus, San Joaquin, and Sacramento — most affected by Bay Area spillover. The Bay Area counties added about 500,000 people; the three Central Valley counties added about 340,000. There is no question that a large percentage population gain appears more startling. Traffic congestion might get worse quickly, and the threat to natural lands becomes obvious. But in the end it is the other trends — the rapid increase in Hispanic population and the continued population growth in mature areas — that will shape California most dramatically. Indeed, in some cases these two trends converge to give us a glimpse of what California is really like today. It is a society that is multi-ethnic and becoming more ethnically mixed, yet at the same time it appears persistently segregated. A mapping analysis of Census trends back to 1940 by Phil Ethington of the University of Southern California reveals a surprising trend: Despite the enormous increase in Hispanic population in Los Angeles County during the last 20 years, the basic geographical distribution of Hispanic ethnicity was set by 1980. Since then, the predominantly Hispanic communities — mostly east and southeast of downtown Los Angeles — have not spread but, rather, have deepened. Hispanic areas are not much more widespread than they were in 1980, but they are much more Hispanic. If these trends continue for another decade or two, something will have to give. The rapid population growth — mostly of Hispanics — may spill over dramatically into predominantly white suburbs. Or existing urban areas will continue to "densify" until they are far more crowded than they are today. In either case, the future of California may not lie in the Central Valley after all, but in the rapidly changing older suburbs along the coast. And that requires us, more than ever before, to re-examine our planning tools and planning practices. Building on raw land or farm fields is still important, of course. But managing change in urban communities — the main focus of planning in the Northeast and Midwest for decades — must become the focus of planning in California as well.

The California Supreme Court has dropped its review of a business tax case from San Diego after deciding the court should not hear the case after all. The action means that the Fourth District Court of Appeal decision that exempted a tax on residential rentals from Proposition 218 remains in effect. However, the opinion will go unpublished. Last year, the Fourth District ruled that the City of San Diego's tax on rental residences was not subject to Proposition 218, the Right to Vote on Taxes Act of 1996 (see CP&DR Legal Digest, August 2000). The city assessed a business tax on all residential properties that are rented. The court held that Proposition 218 only applies to taxes imposed as an incident of property ownership. The San Diego tax is a general tax based on use of the property, the court held. The property owners contended that Proposition 218, which was intended to close Proposition 13 loopholes, applied to any taxes relating to property ownership. At the time, the ruling appeared to conflict with a Los Angeles case, in which the Second Appellate District struck down a tax levied on apartment owners to fund a slum-abatement program. The state Supreme Court reversed that decision in January. Apartment Association of Los Angeles v. City of Los Angeles, No. S082645 (see CP&DR Legal Digest, February 2001, October. 1999). The case that was dismissed is Edward Teyssier v. City of San Diego, No. S090271, C.A. 4th Div. No. D033171/D033622.

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.