A ruling in an endangered species case from Arizona demonstrates how sharply divided federal judges are regarding the legal protections afforded to rare animals and plants. In an extremely short opinion, a Ninth U.S. Circuit Court of Appeals panel ruled 2-1 that the Army Corps of Engineers was not obliged to consult with the U.S. Fish and Wildlife Service (USFWS) regarding the impacts of two proposed housing developments on the ferruginous pygmy owl. The court majority indicated that it was not convinced the owl was deserving of special protection, and that the Corps had no duty to consult with USFWS because the sites were not designated critical habitat. The decision drew an extremely sharp dissent from Judge Warren Ferguson, who said the ruling drives the owls “closer to extinction.” In 2001, the Corps of Engineers issued Clean Water Act § 404 permits for a 600-acre development in Marana, Arizona, and for a 440-acre project in Pinal County. The Corps determined that the housing subdivisions would have no effect on the ferruginous pygmy owl, and declined to consult with the Fish and Wildlife Service despite USFWS requests under Section 7 of the Endangered Species Act. The Defenders of Wildlife and the Center for Biological Diversity sued the Corps of Engineers, charging that the Corps had violated the Endangered Species Act and the Administrative Procedures Act. U.S. District Court Judge Cindy Jorgenson ruled for the Corps of Engineers. With a five-paragraph analysis, the Ninth Circuit upheld the lower court. Although the Fish and Wildlife Service can request Section 7 consultation, “ othing in the regulations mandates the action agency to enter into consultation after it receives such a request,” Judge John Noonan wrote for the two-judge majority. Noonan cited federal regulations from 1986 that say a federal agency (in this case, the Corps of Engineers) has “the ultimate duty” to ensure its actions do not jeopardize listed species or modify critical habitat. The federal agency also makes the final decision regarding consultation, the court ruled. Noonan also pointed out that one day after the district court ruled, the Ninth Circuit issued its decision in , 340 F.3d 835 (2003.) In , the Ninth Circuit ordered the Fish and Wildlife Service to reconsider its determination that the Arizona pygmy owl was a “distinct population segment” different from pygmy owls in Texas and Mexico and deserving of listing under the Endangered Species Act. In the case at hand, Noonan noted that the district court never followed up on the decision by setting aside the USFWS listing decision, that the Service has not set a timetable for reconsideration, and that “a listing rule that this court found to be arbitrary and capricious on August 19, 2003, is still alive in Arizona in April 2005 with no foreseeable termination in sight.” Although obviously disturbed that its 2003 decision appeared to be having little effect, the court said it was upholding Judge Jorgenson’s decision in the present case because it “rested on the firm foundation that no pygmy owls had been found to live within either project area.” The Pinal County project site had been designated as critical habitat, but the decision vacated the critical habitat designation and the Service has not since redesignated it, Noonan wrote. In his dissent, Judge Ferguson got right to the point: “In tersely affirming the District Court’s judgment, the majority ignores the plain language of the Endangered Species Act’s implementing regulations, trivializes the vital process of inter-agency consultation, and ultimately drives closer to extinctions the few existing Arizona pygmy owls. The Army Corps of Engineers’ decision to forego consultation with the Fish and Wildlife Service was both arbitrary and capricious given the Service’s persistent and persuasive objections to the two real estate developments at issue.” According to Ferguson, the threshold for requiring Section 7 consultation is low. Any activity that “may affect” a listed species or critical habitat triggers the formal consultation requirement. There was evidence that both projects may affect the pygmy owls and their habitat, Ferguson wrote. “It may be that further discussion and investigation could vindicate the Corps’ present position, but the Corps cannot be permitted to risk endangering the Arizona pygmy owl by foregoing any consultation with the service,” Ferguson wrote. The case “has no bearing” because the Arizona pygmy owl remains protected under the Endangered Species Act, wrote Ferguson. The Case: , No. 03-16884, 05 C.D.O.S. 6115, 2005 DJDAR 8375. Filed July 12, 2005. The Lawyers: For Defenders of Wildlife: Michael Senatore, (202) 682-9400. For Flowers: Todd Aagaard, U.S. Department of Justice, (202) 514-2217.

The U.S. Supreme Court’s controversial decision backing the use of eminent domain for economic development purposes is creating a backlash in California that could have significant ramifications for redevelopment. A state constitutional amendment to limit the use of eminent domain has been introduced in Sacramento with both Republicans and conservative Democrats as co-authors. Meanwhile, local redevelopment agencies are having to defend their practices from questioning by governing board members and the public. The proposed state constitutional amendment would prohibit the use of eminent domain for “private use.” The measure would require that property taken via eminent domain must remain in public ownership or be provided for utilities. If approved by state voters, the measure would end redevelopment agencies’ common practice of taking property via eminent domain — or at least under the threat of eminent domain — and then providing the property to a private entity for commercial, industrial or residential development. Supporters of the proposal hope to have hearings at the state Capitol this month, and to get the measure placed on the ballot either this November or in June 2006. The Supreme Court’s decision in “opened a new era when the rich and powerful can use government to seize the property of ordinary citizens for private gain,” state Sen. Tom McClintock (R-Thousand Oaks) said while introducing a proposed constitutional amendment. “It may now literally take the house of a person it doesn’t like and give it to a person that it does like.” California Redevelopment Association Executive Director John Shirey countered that the news media has “grossly misinterpreted” the ruling. “There is a belief out there that if a developer wants your house, he can knock on your door one day and take it away from you,” Shirey said. “The truth is the decision did not change California law. The truth is that California law has many protections for property owners.” State lawmakers and their staffs drafted the measure with assistance from property rights advocates at the Pacific Legal Foundation (PLF). Tim Sandefur, a PLF attorney, said his organization received inquiries from both conservative and liberal lawmakers after the Supreme Court issued its decision in late June. He characterized as part of “a fundamental drift away from the purpose of government.” The proposed legislation does not attempt to define “public use.” Instead, the key provision is this: “Property taken by eminent domain shall be owned and occupied by the condemnor or may be leased only to entities that are regulated by the Public Utilities Commission.” “We don’t put any limits there,” said John Stoos, chief consultant to McClintock. “Theoretically, if a city wanted to buy a hotel and run a hotel, it could. We would think that’s bad policy and would oppose it.” In , the court ruled 5-4 that the City of New London, Connecticut, could take private property from nine homeowners so that the property would be available for a large, mixed-use development (see , July 2005). Under the Fifth Amendment, the government may take private property for public use as long as the government provides just compensation. Justice John Paul Stevens wrote that there was “no basis for exempting economic development” from the broad definition of “public use.” The reaction was immediate and negative. Public opinion polls showed widespread opposition to the ruling. Lawmakers in at least half a dozen states proposed measures to limit use of eminent domain. In Washington, lawmakers in both houses of Congress introduced bills that would withhold federal funds from states or local governments that use eminent domain for private development. While in agreement with the decision, redevelopment supporters in California said the ruling would have little immediate effect because state law already limits the use of eminent domain for private development to instances in which the property being taken is blighted. But backers of SCA 15 and ACA 22 (La Malfa), identical measures seeking to restrict eminent domain, believe California’s current protections for property owners are inadequate. They point out that “blight” was loosely defined for many years, leading to redevelopment projects in wealthy communities and on undeveloped land. Stoos pointed as an example to Rancho Mirage, a wealthy retirement and resort town whose two redevelopment project areas cover nearly the entire desert city. “We don’t think we stop the good part of redevelopment,” Stoos said. “We’re not against renewing urban areas or doing redevelopment.” The measure’s backers believe that private developers should buy property on the free market, Stoos said. Four Democrats have signed on as supporters of SCA 15 and ACA 22, including Sen. Dean Florez (D-Shafter), who joined McClintock at a press conference introducing SCA 15. The proposed constitutional amendments need two-thirds approval by the Legislature to qualify for the ballot. If the Legislature does not approve either ACA 22 or SCA 15, an initiative is likely. Both sides appear to agree upon one thing: If a measure qualifies for the ballot, voters will probably approve it because of the emotional nature of the issues. “We see this as a direct attack on redevelopment,” said the CRA’s Shirey. “With the misinformation in the public, this thing could easily gain legs and move forward.” Shirey conceded that project areas exist that could not be created today under the 1993 redevelopment reforms. But, Shirey noted, eminent domain authority for redevelopment last only 12 years. The powers may be renewed, but today’s standards for determining blight apply, he said. Redevelopment backers contend that their efforts to improve the lot of poor, blighted neighborhoods are a fundamental purpose of government. And they lamented the potential loss of eminent domain as a tool. “To do significant redevelopment in built-out communities, you have to have the ability to acquire parcels,” said Jim Kennedy, executive director of the Contra Costa County Redevelopment Agency. One of the agency’s most successful projects is a transit-oriented development around the Pleasant Hill BART station: 2,300 housing units within a quarter mile of transit, plus 2 million square feet of commercial space (see , May 1994). “None of that would have been do-able without eminent domain,” Kennedy said. Although extensive development had been proposed around the BART station for years, nothing got built because infrastructure costs scared away private developers. The redevelopment project involved assembling about 250 parcels on 125 acres into 13 development sites. The redevelopment agency assembled 10 of the sites. The agency commenced eminent domain proceedings against about 40 holdout property owners. All but about 15 of those settled during negotiations. The final holdouts argued about price, not about land use, Kennedy said. A more recent and more modest Contra Costa redevelopment project in North Richmond replaced a handful of dilapidated single-family houses and some broken-down, housing authority-owned units with 54 new housing units, a neighborhood retail center and a public health clinic. The redevelopment agency used eminent domain to acquire two of the parcels from property owners who were holding out for higher prices. “It’s the prototype of an extremely blighted area,” Kennedy said of North Richmond. Without eminent domain to acquire property from the two holdout property owners, the project would not have been feasible, he said. In Sacramento, Traci Michel, a senior project manager with the city’s redevelopment agency, recalled a project that brought the first new grocery store in decades to the impoverished Oak Park neighborhood. That project would not have gone forward without the city using eminent domain to deal with one reluctant property owner, she said. “There are a lot of really great projects that needed the power of eminent domain — very successful projects that the community wants,” Michel said. How far the state legislation will get is uncertain. Authors introduced the bills just before the Legislature went on summer break. Leaders of either house could procedurally stall the bills fairly easily, although it appears that there will be hearings this month. Supporters believe that big-box retailers, who often benefit from redevelopment practices, will fight hard to kill the legislation. The League of California Cities has already begun rallying opposition, arguing that the proposed restrictions would harm job creation and affordable housing construction. The reaction to has not been limited to Sacramento and Washington. In San Diego County, Supervisors Bill Horn and Ron Roberts said Kelo “sets a dangerous precedent and goes beyond the accepted use of eminent domain for public benefit in the County of San Diego.” The Board of Supervisors voted unanimously to review all county eminent domain policies. “I want to make sure that this can’t happen — that the government can’t take property for economic benefit,” Horn said. “I think the county needs to take a strong stance on the property rights issue.” Los Angeles County supervisors are scheduled to consider eminent domain policy revisions this month. Supervisor Michael Antonovich denounced the use of eminent domain for economic development. In Riverside, the City Council gave preliminary approval to a formal policy of not taking owner-occupied, single-family residences by eminent domain in a controversial new redevelopment project area. Contacts: John Stoos, office of state Sen. Tom McClintock, (916) 651-4019. Tim Sandefur, Pacific Legal Foundation, (916) 718-8572. John Shirey, California Redevelopment Agency, (916) 448-8760. Jim Kennedy, Contra Costa Redevelopment Agency, (925) 335-7200. Bill Horn, San Diego County supervisor, (619) 531-5555.

A limit on the amount of trash that can be discharged into the Los Angeles River has been upheld by the Ninth U.S. Circuit Court of Appeals. The court rejected a challenge filed by 22 cities in Los Angeles County to a limit established by the Los Angeles Regional Water Quality Control Board. The federal Clean Water Act requires regulatory agencies to establish TMDLs (total maximum daily loads) for pollutants in “impaired” water bodies. In 1997, environmental groups sued the U.S. Environmental Protection Agency for not establishing TMDLs for the Los Angeles region. The lawsuit resulted in a consent decree in which the EPA agreed to set TMDLs for all significant sources of water pollution, including stormwater and urban runoff. One of the required TMDLs was for trash in the Los Angeles River watershed. The consent decree gave the regional board until March 2001 to submit a trash TMDL. After the regional board missed the deadline, EPA established its own trash TMDL in March 2002. Five months later, the regional board submitted a more comprehensive trash TMDL to the EPA. The EPA approved the regional board’s TMDL, which effectively superceded the federal version. Unhappy with the restrictions established by the regional board, the cities sued the EPA, arguing that the state regulations may not supercede the federal TMDL. A federal district court ruled for the EPA. On appeal, the Ninth Circuit upheld the lower court. The cities relied on the “constructive submission” doctrine. Under this argument, the state’s failure to meet the deadline triggered the EPA’s duty to prepare a TMDL and eliminated the state’s authority to act. The court disagreed, holding that the Clean Water Act provides for action at both the state and federal levels. “So long as the state does not attempt to adopt more lenient pollution control measures than those already in place under the Act, the Clean Water Act does not prohibit state action,” Judge William Canby Jr. wrote for the court. The decision was a disappointment to a number of jurisdictions fighting TMDLs that were prepared by regional boards after initial EPA action. The case is , No. 03-16309, 05 C.D.O.S. 5144, 2005 DJDAR 7066. It was filed June 15, 2005.

An appellate court has thrown out a mitigated negative declaration that the City of Los Angeles approved for a 21-lot subdivision in the Sunland area. The court ruled that project opponents had made a fair argument that the project may have a significant impact on wildlife and traffic. In 1999, California Home Development LLC applied for a tentative tract map to subdivide 17 acres on Wheatland Avenue into 28 residential lots. The area is a semi-rural one in which many residents have horses. The city had approved a similar 28-lot subdivision in 1990 — California Home called it the “same project” — but the 1990 version was never built. Various city advisory and planning panels approved the project (reducing it to 23 lots) and a mitigated negative declaration. Under the California Environmental Quality Act (CEQA), a mitigated negative declaration states that a project, as revised prior to an agency’s consideration, will not harm the environment, and, therefore, no environmental impact report is required. Ultimately, the City Council in mid-2000 adopted the mitigated negative declaration and approved the 23-lot subdivision. Area resident Maria Mejia sued, arguing that the city violated CEQA. A trial court in July 2001 ruled for Mejia and ordered the city to set aside project approval because the city failed to give proper notice that it intended to adopt a mitigated negative declaration. The city started over. It prepared a new initial study that identified several potentially significant environmental impacts, but found that those impacts could be mitigated. At a March 2002 hearing, an advisory agency was not satisfied and told the planning department to reconsider impacts to, among other things, wildlife, traffic, drainage and trees. The planning department then prepared another initial study and proposed mitigated negative declaration in May 2002 — only to draft yet another initial study and mitigated negative declaration for a 21-lot subdivision. In late 2002, the advisory agency approved a mitigated negative declaration with two modified conditions, and the tentative tract map. On appeal, the Planning Commission and the City Council upheld the tract map and mitigated negative declaration, although the City Council added 10 more conditions. Mejia sued again, but this time she lost at the trial court. On appeal, a unanimous three-judge panel of the Second District Court of Appeal overruled the lower court. The appellate panel first found that the administrative record prepared by the city was incomplete because it contained no documents from the period before the 2001 trial court decision overturning project approval. Mejia had sought to have some of the missing documents added to the record, but she did not get far with the Superior Court. Among the documents Mejia wanted the court to review — and which the Second District was willing to consider — was a biotic assessment prepared in 1989. The assessment stated that the proposed subdivision site was “relatively rich in animal life,” including some rare birds. The site also provided a small mammal movement corridor. “One should expect that any urbanization on the site will have negative impacts on most animal numbers,” the study said. The city did not prepare a new biotic assessment for the latest subdivision proposals. Instead, the city’s initial study concluded “the project will not impact areas containing significant ecological resources.” Based on the 1989 assessment and the testimony of residents who have observed golden eagles, other resident and migratory birds, and various mammals and reptiles, the court found that a fair argument could be made that the proposed development may impact wildlife. “The mitigation measures set forth in the mitigated negative declaration as conditions of project approval were not designed to mitigate significant impacts on wildlife because the city did not acknowledge any potentially significant impact on animal wildlife,” Justice Walter Croskey wrote for the Second District. Regarding potential impacts to traffic, the city relied heavily on its own thresholds of significance. Under that policy, a single-family home development of fewer than 40 units is considered to have an insignificant impact on traffic. However, the court ruled that a project’s falling below a threshold of significance “does not relieve a public agency of the duty to consider the evidence under the fair argument standard.” In this case, that evidence included testimony from residents regarding conflicts between motorists, equestrians and pedestrians — all of whom share Wheatland Avenue. “In light of the public comments and absent more careful consideration by city engineers and planners,” Croskey wrote, “the evidence supports a fair argument that the increased traffic on Wheatland Avenue as a result of the project would be substantial considering the users of the road.” The court overturned the project approval and ordered preparation of an EIR. The Case: , No. B174453, 05 C.D.O.S. 5264, 2005 DJDAR 7181. Filed May 27, 2005. Ordered published June 16, 2005. The Lawyers: For Mejia: Maria Mejia for herself. For the city: Jack Brown, assistant city attorney, (213) 978-8177. For California Home Development: L. Douglas Brown, (310) 277-7747.

Although it was overshadowed by higher-profile cases, a California water controversy decided in late June by the U.S. Supreme Court might have been the most closely watched case by California farmers, water districts and environmentalists. The case, , concerned the ability of farmers who get water from an irrigation district to sue the Bureau of Reclamation over water delivery cutbacks. The Supreme Court unanimously ruled that individual farmers could not sue the federal government in such instances. The decision relieved environmentalists, who feared that permitting individual lawsuits over Bureau of Reclamation water decisions would lead to widespread litigation and possibly push the Bureau away from allocating more water for the environment. The farmers in this case are in the Westlands Water District, the nation’s largest irrigation district. It delivers more than 1 million-acre feet of water to a 600,000-acre district along Interstate 5 in Fresno and Kings counties. In 1992, Congress passed the Central Valley Project Improvement Act, which forced the Bureau of Reclamation to dedicate some water from the Central Valley Project to fish and wildlife habitat. The following year, the Bureau announced a 50% reduction in deliveries to water districts south of the Sacramento-San Joaquin River Delta, primarily to aid endangered Chinook salmon. Westlands and other water districts sued the Bureau, but the sides settled two years later as part of negotiations that led to creation of the Cal-Fed Bay Delta program. About two dozen landowners and water uses in Westlands, however, wanted to continue the litigation. They argued that they had a right to the water that the Bureau was withholding, and they requested $32 million in compensation. The farmers contended that, although they were not parties to the water delivery contract between the Bureau and the Westlands district, they were “third party beneficiaries” who could sue to enforce the contract’s provisions. A federal district court and the Ninth U.S. Circuit Court of Appeals ruled that sovereign immunity barred the farmers’ lawsuit. Essentially, the federal government can decide who may sue it, and the farmers were not eligible. The Supreme Court accepted the farmers’ case apparently because the decision conflicted with a 1984 case, , 749 F.2d 1571, in which farmers in a State of Washington irrigation district were allowed to sue the federal government. At the high court, the farmers argued that a waiver from sovereign immunity contained in the Reclamation Reform Act of 1982 (43 U.S.C. § 390uu) permitted their lawsuit. That section permits lawsuits seeking adjudication of rights contained in any contract signed under federal reclamation law. In a unanimous opinion written by Justice Clarence Thomas, the high court said that the Westlands farmers were misreading § 390uu. “Section 390uu grants consent ‘to join the United States as a necessary party defendant in any suit to adjudicate’ certain rights under a federal reclamation contract,” Thomas wrote. “This language is best interpreted to grant consent to join the United States in an action between other parties — for example, two water districts, or a water district and its members — when the action requires construction of a reclamation contract and joinder of the United States is necessary. It does not permit a plaintiff to sue the United States alone.” “The statute does not waive immunity from suits directly against the United State,” Thomas concluded. After the Supreme Court issued the ruling, the farmers involved said they might seek compensation in the U.S. Court of Federal Claims — a possibility that the Supreme Court justices themselves raised during oral argument. The Case: , No. 03-1566, 05 C.D.O.S. 5484, 2005 DJDAR 7505. Filed June 23, 2005. The Lawyers: For Orff: William Smiland, Smiland, Khachigian & Chester, (213) 891-1010. For the U.S.: Jeffrey Minear, assistant U.S. solicitor general, (202) 514-2217. For Westlands Water District: Stuart Somach, Somach, Simmons & Dunn, (916) 446-7979.

Not often does a case already decided by the state Court of Appeal return to the same court for an interpretation of who won. However, the Fifth District Court of Appeal has issued a second ruling on a California Environmental Quality Act (CEQA) case from Merced County, making it perfectly clear that environmentalists won and the county lost. The case stems from Calaveras Materials’ proposal for a 450-acre gravel quarry on farmland next to the Merced River. Environmentalists led by the group Protect Our Water (POW) sued, arguing that the environmental impact report was defective. In a ruling issued two years ago, the Fifth District overturned the project approval because, the court said bluntly, Merced County’s administrative record was such a mess that the justices could not even find CEQA essential documents. ( , 110 Cal.App4th 362; see , September 2003.) When the case returned to Merced County Superior Court, POW attorney Rose Zoia requested attorney fees under Code of Civil Procedure § 1021.5. In an early 2004 ruling, Superior Court Judge William Ivey ordered the county to set aside its approval of the project as required by the Fifth District. But Judge Ivey found that the appellate court’s decision did not require the county to set aside the EIR, and he refused to award attorney fees to POW. The case returned to the Fifth District, where POW argued that it was entitled to fees because it was the prevailing party in the litigation and because its victory resulted in a significant benefit to the public — namely, the preparation of an adequate record of environmental review. The Fifth District agreed with POW. “Reduced to basics, the county was the loser,” Justice Nickolas Dibiaso wrote for the court. “POW sought an order setting aside the county’s approval of the project. Our opinion directed exactly that result. POW also sought an order setting aside the county’s certification of the EIR. Although this court did not direct that result because we did not reach the merits on appeal, and although the trial court concluded that our opinion did not require such a result, we did state that the administrative record as it stood was inadequate to support the certification. This was tantamount to a determination that the certification could not stand on the then current record.” The county pointed out that POW took it upon itself to prepare the administrative record. Thus, the county argued, POW should not benefit from the inadequate record. The court had little patience for this contention, however. “We unequivocally stated in our opinion and during oral argument that the county, not POW, bore the primary responsibility for the inadequate record,” Dibiaso wrote. “Although our opinion and comments at argument included complaints about the poor organization and lack of index in the record — for which POW was to blame — we stated explicitly that the critical inadequacy of the record was more fundamental than organizational.” As for a public benefit, the court noted that it published its 2003 opinion and that the decision should have prompted the county to improve its methods of creating and managing CEQA records. Hence, there was “no reasonable basis” for denying POW’s request for attorney fees. The Fifth District sent the case back to Superior Court with the direction to award the attorney fees. The Case: , No. F044896, 05 C.D.O.S. 5422, 2005 DJDAR 7395. Filed May 25, 2005. Modified and ordered published June 21, 2005. The Lawyers: For POW: Rose Zoia, (707) 526-5894. For the county: James Fincher, deputy county counsel, (209) 385-7564. For Calaveras Materials: William Gnass, Mason, Robbins, Gnass & Browning, (209) 383-9334.

Development activity in San Bernardino County’s high desert is as hot as a mid-summer afternoon. With miles of wide-open spaces, the Victor Valley has become an affordable housing relief valve for Southern California. The area’s four incorporated cities and half a dozen unincorporated communities will see about 7,500 new housing units this year alone, according to Joseph Brady, a land broker and industry analyst. Leading the way is Victorville, a city that may cross the 100,000 population line this year. In 2002, the City of Victorville issued about 1,000 permits for new houses. That figure doubled in 2003 and increased to about 2,700 in 2004. During the first six months of this year, Victorville issued 1,137 permits for new single-family homes. Meanwhile, the cities of Hesperia, Apple Valley and Adelanto are on track to add more than 1,000 new houses apiece. That adds up to a regional growth rate approaching 6%. Victorville Mayor Mike Rothschild sees the trend continuing. He expects the area’s population, now at approximately 400,000, to reach 1 million within 10 to 15 years. “We’re probably going to be at it for the next five to six years,” Rothschild said of his city’s extremely rapid growth. “We’re not limited in any way like the Los Angeles Basin is. We’ve got room to grow, and it’s mostly pristine land.” A large percentage of the new residents are families seeking refuge from high housing prices in the Los Angeles Basin and Orange County. The median price for single-family houses in the high desert was $290,000 in June, according to the California Association of Realtors. That sounds inexpensive compared with the statewide median of $542,000. But consider that houses in the Victor Valley were selling for less than $100,000 only four years ago. Only two years, about two-thirds of Victor Valley residents could afford to buy a house. Now, only about one-third can. Inland Empire economics guru John Husing says that the Victor Valley is one of Southern California’s “hot zones,” which he describes as an area in the first stage of the suburban growth cycle. As close-in cities build out and prices continue to rise, these hot zones burst onto the scene, even though they were previously considered to be located too far out. Essentially, this is part of California’s “drive-until-you-qualify” phenomenon, in which houses get progressively less expensive the farther they are from job centers. In 2004, the Victor Valley had only 0.65 jobs for every housing unit, according to Husing, or about half of what is needed for a true balance of jobs and housing. Brady said that 60,000 people a day commute “down the hill” to the Los Angeles Basin. The City of Victorville, however, has long been the San Bernardino high desert’s economic center, and long-term economic growth has been a city priority since the Pentagon closed George Air Force Base. The 1992 base closure cost Victorville about 5,000 military jobs and nearly 1,000 civilian jobs. Less than a year after George closed, Victorville annexed the site and a new redevelopment agency took possession of a 5,000-acre base with 13,000-foot-long runways, which are long enough to land even the largest airplanes. George closed at the same time that a number of other air bases in Southern California shuttered or were marked for closure. At the time, the Southern California Association of Governments concluded that George was the most unlikely of the closed bases to become a commercial airfield. Victorville officials were not deterred. Although Adelanto fought to keep the base, eventually the four cities worked together to create a joint redevelopment agency (the Victor Valley Economic Development Authority), which Victorville essentially runs. The redevelopment project extends for eight miles around the former base. The redevelopment agency recast George as the Southern California Logistics Airport and tried to position it as a major center for the shipping industry. Although very little happened at the Southern California Logistics Airport for nearly a decade, the action has picked up in recent years. Now, the airport has 60 tenants with 1,900 jobs in 2.5 million square feet of space — and more jobs appear to be on the way. The city has been acquiring right-of-way for a three-mile long railroad spur that will connect the airport with the Burlington Northern and Sante Fe Railway Company line. Construction on the rail line, a $25 million redevelopment project, is expected to start later this year. City officials are trying to convince BNSF to build a major, multi-modal yard at the airport. Nothing is final yet. Victorville officials contend the rail facilities would turn their city into a major “inland port” that handles freight coming into, and going out of, the ports at Long Beach and Los Angeles, where floor space is very limited. The 6,000-acre airport and the surrounding 25,000 acres are designated for commercial and industrial use. The city anticipates development of up to 60 million square feet of commercial and industrial space — and 30,000 jobs — over the next 10 years. Rothschild believes that although low real estate prices started the Victor Valley’s growth surge, the promise of new jobs is continuing the boom. “Now they see the jobs coming in. It’s not pie in the sky stuff,” Rothschild asserted. “We’re not interested in being a residential community. We’re interested in being the hub of the Victor Valley.” Brady, whose Bradco Companies sells land and tracks the market closely, said Victorville and the Economic Development Authority deserve credit for putting $55 million worth of improvements into the former base. “The base is the jewel that’s going to drive growth for 10 to 15 years,” Brady predicted. Already, the city has a five-year-old, 800,000-square-foot Goodyear warehouse and shipping facility. Distribution centers for ConAgra Foods and Nutro Pet Products are under construction. Not surprisingly, the city’s rapid population growth has already spurred extensive retail development. In fact, a new auto mall has opened on the site of the former Roy Rogers/Dale Evans Museum. While the museum is gone, other pieces of high desert history may be restored. In June, a citizen task force began work on a plan for revitalizing Old Town, which has struggled for years with high vacancy rates and deferred building maintenance. The city has hired Moore Iacofano Goltsman to help prepare the plan. In July, the city broke ground on a $27 million project to expand city hall from 41,000 square feet to 107,000 square feet. Maintaining adequate infrastructure is a concern. The city has proposed raising impact fees by 140% to about $9,500 per unit. Carlos Rodriquez, of the Building Industry Association’s Baldy View Chapter, said his organization recognizes the need for more revenue, but would like to see the increase phased in over two years. That request is under discussion at city hall. So far, negative reaction to the rapid growth has centered, not surprisingly, on traffic congestion.

A referendum of a $200 million agreement between the City of Rohnert Park and an Indian tribe planning to build a large casino has been blocked from the ballot. The First District Court of Appeal upheld a lower court ruling that the Rohnert Park City Council’s approval of the agreement was an administrative act not subject to referendum. Referendum supporters argued that the City Council made a policy decision that committed the city to a course of action that was counter to the city’s general plan. However, the court ruled that a policy decision is not necessarily the same thing as a legislative decision — which would be subject to referendum. In this case, the court said, the city made policy, but only by a contractual agreement with the tribe and not by any legislative act that would require the tribe or any other party to take a particular action. The appellate court decision was the latest in a string of losses for opponents of the casino and resort, proposed for 360 acres of unincorporated land west of Rohnert Park. In October 2003, the City Council approved an agreement with the Federated Indians of Graton Rancheria, whose sovereign status Congress restored three years earlier. The act of Congress permitted the tribe to select land in Marin and Sonoma counties for its reservation. The Graton Rancheria chose the site outside Rohnert Park and soon announced plans to partner with Station Casinos of Las Vegas on a large casino, resort and performing arts center. The tribe also started talking with local governments. The Sonoma County Board of Supervisors turned down $120 million from the tribe because the money came with the condition that the board not oppose the proposed casino, which still needs both federal and state clearance. However, Rohnert Park was willing to accept a no-opposition clause as part of its memorandum of understanding with the tribe that would pay the city $140 million over 20 years, and would provide $60 million to community nonprofit organizations and the Cotati-Rohnert Park School District. The land in question is located outside the city’s sphere of influence and its urban growth boundary, meaning it is not subject to the city’s regulatory authority. The council’s approval of the deal came despite the vocal protest of hundreds of people. The deal resulted in recall efforts against Councilmembers Armando Flores and Amie Spradlin. However, they retained their offices during a special election in August 2004. In addition to the recall, casino opponents went the referendum route. Local pastor Chip Worthington and other members of a committee gathered signatures on a referendum petition; however, the city refused to place the matter on the ballot. Opponents then sued the city, arguing that the MOU was a legislative policy decision that effectively amended the city’s general plan. The city countered that the memorandum of understanding was no different from any other contract. The MOU’s approval was merely an administrative act, the city argued, and administrative acts are not subject to voter referendum. Sonoma County Superior Court Judge Laurence Sawyer ruled for the city. The casino opponents appealed, and a unanimous three-judge panel of the First District Court of Appeal, Division One, upheld the lower court. The First District conceded that the City Council may have made a policy decision by approving the MOU. But that “does not make the act legislative in nature,” Presiding Justice James Marchiano wrote for the court. “By definition, a legislative act necessarily involves more than a mere statement of policy. It carries the implication of an ability to compel compliance.” “When an action requires the consent of the governmental entity and another party, the action is contractual or administrative,” Marchiano continued. “The give and take involved when a governmental entity negotiates an agreement with a sovereign Indian tribe is not legislation, but is a process requiring the consent of both contracting parties.” Ultimately, the court pointed out, the federal government — not a local government — decides the location of tribal land and whether it may be used for a casino. “Whether a local government approves or chooses to voice its disapproval is not legislation and therefore is not subject to referendum,” the court ruled. The fact that the Interior Department has not yet taken the land into trust for the tribe, and the fact that the tribe still lacks a compact with the state, do not alter the character of the city’s action, the court ruled. “The tribe’s political decision to blunt preemptively opposition from neighbors does not convert the resulting MOU process into local legislation,” Marchiano wrote. As for the general plan, casino opponents argued that the MOU conflicted with the land’s designation as open space. The MOU calls for the tribe to pay for road widening and installation of a traffic signal. However, both sides agreed that, although the site is within the city’s planning area, it is outside both the city’s 20-year urban growth boundary and the city’s sphere of influence. Sonoma County has land use regulatory authority. Moreover, “the MOU expressly provides that the city is not required to extend any infrastructure and that if future improvements are necessary, additional reviews and approvals may be required,” Marchiano concluded. “In light of the location of the proposed project and the preliminary status of the actions contemplated by the MOU, no inconsistency with the general plan is shown.” After the court ruled, Station Casinos maintained that the casino was only two years from opening. However, the project has not yet received either federal or state clearance, and an environmental impact statement has been delayed for months. The Case: , No. A107547, 05 C.D.O.S. 5865, 2005 DJDAR 8057. Filed June 30, 2005. The Lawyers: For Worthington: John Douglas Moore, Henn, Etzel & Moore, (510) 893-6300. For the city: Michelle Kenyon, McDonough, Holland & Allen, (510) 273-8780.

The City of Oceanside, which has enjoyed a renaissance in recent years, is preparing for a major civic improvement: rehabilitation of a 465-acre former sand quarry for parkland and public buildings. However, financing for the project — estimated to cost more than $100 million over 25 years — is far from certain. So far, about $25 million in tax revenue has been identified to pay for it. Those funds would come from a proposed commercial development on about 10% of the former quarry site. And, although an advisory committee has been at work for two years, the project must face a City Council vote. The project is known as El Corazon (Spanish for “the heart”) and has proceeded in fits and starts during the past decade in the northern San Diego County community. For 60 years, the El Corazon site was a sand and gravel mine. Holes were created in the ground, and parts of the property sunk. About 40 acres are still too unstable to allow buildings on them and will become athletic fields, according to George McNeil, vice chairman of a committee that recently created a master plan for the property. Despite the quarry’s history, the property has promise. The former mine operator gave the city the land in 1994. Garrison Creek runs along the undisturbed northern and western edge of the property and has created a lake. The City Council approved a “ vision program” for the 465 acres in 1997, but the program got caught up in an unsuccessful proposal for a hotel and golf course proposed for a portion of the property. Developer Douglas Manchester also proposed a second hotel in the city’s downtown. Manchester’s projects collapsed after the Coastal Commission rejected the proposed downtown hotel in 2002 (see , October 2003). The planning process began again two years ago, after city voters narrowly rejected a ballot initiative that would have turned the entire parcel into parkland. A portion of the site is currently used for the city’s green waste recycling. The waste is helping to replace the soil at the site, which is so denuded from mining activity that “weeds have trouble growing,” said McNeil. The 15-member, council-appointed committee is scheduled to present the draft master plan to the City Council this month. “They worked really hard to reach a consensus,” Mike Blessing, deputy city manager, said of the committee members. “I think it’s a plan that has success written all over it,” said Councilwoman Shari Mackin, a member of the El Corazon planning committee until she was elected to the council this year. But approval of the plan, if it comes, is far from the end of the process. The council would still need to rezone the land, do environmental review and come up with funding. Oceanside itself is undergoing a rebirth. For years, it had a reputation as a tough town with a high crime rate, in part due to its close proximity to the Camp Pendleton Marine Corps base. But in recent years, the city of 175,000 has been buoyed by job growth and a strong housing market that has some of the least-expensive coastal housing in the region. Several new residential, commercial and mixed-use projects are also under construction in the city’s revitalizing downtown core (see , November 2000). McNeil and committee Chairman Hugh LaBounty said the current plan differs for the earlier vision program in its level of detail and greater citizen involvement. The first plan was a list of specific uses for the site. With the new plan, McNeil said, “we have specific recommendations for almost every inch.” The plan would create the city’s largest park, with 363 acres of parkland and open space. The new park would provide athletic facilities in a city that has grown by 15,000 people during the past few years. McNeil said the city needs more park and recreation areas away from the city’s coastline. “You can’t play softball or soccer on the beach,” he said. Another 47 acres would be devoted to public facilities such as a senior center, a community center, an aquatics center and a library. A commercial development on 55 acres in the southeastern corner of the site would help fund the public projects. “We had enough acreage so that everybody got everything they wanted,” said committee member Joan Bockman, who previously was a member of the city’s Planning Commission. Well, not everybody. Some people in the city were pushing for a golf course that would cover most of the property’s useable land. But an analysis prepared at the committee’s request concluded that a city-owned golf course would not be economically feasible. The committee’s proposal calls for stores, restaurants and two hotels. The area around El Corazon is entirely built out, and the first hotel is expected to serve business clients at a nearby industrial park. The stores and restaurants would be within walking distance of nearby residential neighborhoods, McNeil said. The expectation is that the city would lease property to a commercial developer. The committee recommends that the city dedicate tax revenue from the commercial development to El Corazon park and public facility development. The city could potentially issue a bond to speed up public development, with tax revenue from the associated commercial project paying off the bond. The city got the idea for the finance plan from the nearby City of Escondido, which leased land for development of a shopping center to raise money for the building of Kit Carson Park. “We always thought that kind of model was what we were striving for,” said Diane Nygaard, a committee member. McNeil described the development as “useable” for local residents and not a tourist destination. “I don’t think (people) will want to get off Interstate 5 to see it,” he said. “They’ll want to get off Interstate 5 to use it.” The topography of the site, which consists of a variety of elevations, means the project will not end up as a flat, suburban park, according to Bockman. She envisions meandering drives with roundabouts, small parking areas, sculptures and native plants such as oak trees, Torrey pines and sycamores. One hundred and fifty acres around the creek would be left in a natural state. Construction on a senior center on the property is expected to begin soon, regardless of the council’s actions this month. Contacts: Michael Blessing, Oceanside deputy city manager, (760) 435-3069. Shari Mackin, Oceanside city council member, (760) 435-3029. Project website: www.elcorazon.ci.oceanside.ca.us

California appears to be headed slowly away from the carbon age. Gov. Arnold Schwarzenegger has set a goal of reducing air emissions that contribute to global climate change by 80% over the next 45 years. The California Energy Commission has directed private utilities to provide 20% of their electricity from renewable sources by 2017. However, the experience at the Altamont Pass Wind Resource Area — California’s oldest and one of the world’s largest wind farms — suggests that the move to renewable energy sources could have consequences. The approximately 5,000 windmills in the Altamont Pass area, which separates the East Bay from the San Joaquin Valley, kill between 880 and 1,300 raptors every year, including as many as 116 golden eagles, according to an Energy Commission study released in 2004. Golden eagles are protected by both federal and state law. “It’s the worst place in North America to put a wind farm, in terms of bids of prey,” said Jeff Miller, Bay Area wildlands coordinator for the Center for Biological Diversity. The site is on the raptor migration route, it serves as a golden eagle nesting ground and it provides wintertime habitat for a number of species. In 2003, 20-year use permits issued by Alameda County for various Altamont wind facilities started coming up for renewal. The eastern county Board of Zoning Adjustments — the only regulatory body for the wind farm — added some conditions aimed at reducing avian fatalities. Environmentalists, however, were not satisfied and appealed to the Board of Supervisors. It was obvious that environmentalists and the power generators were far apart. So the county put together a 30-member “wind power working group” to negotiate. In July, the Board of Supervisors gave its tentative approval to a package of nine measures aimed at reducing bird deaths over time while also keeping the wind farm in business. Supervisors appear to be walking a middle ground, not requiring as much as environmentalists would like but going further than the windmill operators wanted. The Board of Supervisors is scheduled to formalize the new permit conditions in September, according to county Planning Director Chris Bazar. The measures approved by supervisors require windmill operators to replace smaller, older models with fewer larger turbines that produce roughly seven to ten times the electricity than an old turbine can. The replacement project — known as “repowering” — would be phased in over 13 years. Additionally, the county will require that operators immediately shut down about 100 of the most dangerous windmills and that operations shut off everything for two months each winter. The wintertime shut down would grow to 3 1/2 months within five years. Additionally, supervisors called for extensive scientific study funded by the industry. Some of that information would have been useful two decades ago, when the county first approved the wind farm. “There was not any significant environmental review back then,” Bazar conceded. “There wasn’t any sense of these issues that eventually arose. The idea that birds would fly into turbines — no one seemed to anticipate that.” Now, there is no denying that birds will fly into the blades of a windmill. Birds have also gotten electrocuted on power lines and been harmed by windmill operators’ poor rodent management practices. Still, the industry insists on perspective. While as many as 4,700 birds of all species die at the Altamont wind farm every year (the upper figure in the Energy Commission’s 2004 study), that hardly compares to the hundreds of millions of birds that die annually in collisions with buildings, cars and communications towers, according to the American Wind Energy Association. The average pet cat kills more birds than the average Altamont windmill, according to the industry group. While those statistics may be true, Altamont is sensitive because of the types of birds killed — including golden eagles, red-tailed hawks, American kestrels and burrowing owls. Golden eagles, for example, are protected by the federal Bald and Golden Eagle Protection Act, and they are a “fully protected” species under state Fish and Game Code. Environmentalists argue that windmill owners break the law every time a turbine kills one of these protected birds. Wildlife regulatory agencies recognize that the bird kills occur and have urged mitigation measures, but they have not sought prosecution of any wind energy company. Partly because of the regulatory agencies’ position, the Center for Biological Diversity (CBD) sued all wind power companies at Altamont last year under the state unfair competition law. The lawsuit, , Alameda County Superior Court case No. RG04183113, got snared by Proposition 64, however. That ballot measure, approved by voters one day after CBD filed its lawsuit, restricts lawsuits under the unfair competition law. In March, Judge Ronald Sabraw ruled that CBD could seek an injunction against the companies, but could not request restitution or civil penalties. While the wildlife agencies have remained in the background, the attorney general’s office recently urged the Board of Supervisors to adopt the recommendations contained in the Energy Commission’s 500-page study from 2004. These recommendations, backed by environmentalists, call for removing about 300 of the worst offending turbines, an immediate start to the 3 1/2-month wintertime shut down, and other measures aimed at reducing bird fatalities by 85% within six years. The fact that the county is willing to do less than urged by the Energy Commission and the attorney general is “disturbing,” said Elizabeth Murdock, executive director of the Golden Gate Audubon Society. The proposed mitigations may not even cut bird deaths in half, she said. The county’s Bazar, though, defended the mitigations as “a really state-of-the-art set of solutions” that will be unique for the industry. Industry representatives argued that the measures requested by environmentalists and the state would put them out of business — an argument that the attorney general’s office dismissed because the windmill operators have not provided financial information. Bazar said that the county takes the financial health of the wind power operators seriously. Failure of the wind farm would place urban development pressure on a part of the county that many people consider to be valuable open space. James Walker, a director of enXco, which owns windmills at Altamont, told the that the mitigations “pushed the envelope” but that he appreciated the certainty they bring to the industry. What just about everyone agrees upon is that “repowering” appears to be the long-term answer. A 1998 study said that about 900 larger and more efficient turbines could produce as much electricity as the 5,000 smaller turbines at Altamont. Furthermore, studies suggest that the taller and slower-moving large turbines are safer for birds. “Repowering looks very promising,” said Murdock. But she cautioned that the science is evolving and no one can predict for certain how birds will behave around new wind facilities. The county has committed to completing an environmental impact report on repowering in three years, Bazar said. The EIR will look at the whole Altamont wind farm, he said, and provide certainty to operators who must invest about $1 million for each new large wind turbine. The mitigations backed by county supervisors call for repowering the entire wind farm by 2017. As California tries to encourage the development of renewable energy, implications of the Altamont experience are unclear. Dozens of wind farms are proposed across California. And, in June, the Bureau of Land Management released an environmental study that found wind farm development to be acceptable on federal lands, including 72,000 acres in California that appear to be prime areas for wind power. The American Wind Industry Association recognizes that the deaths of so many rare and inspiring birds at Altamont has been a black eye for the industry. But, said association spokeswoman Christine Real de Azua, “it’s really an anomaly. If you look at other equally large wind power projects developed at the same time in the Palm Springs area and the Tehachapi area, they don’t have the same problem at all.” Miller, of the CBD, said that bird kills are a problem at other wind farms, but the problem is far smaller than at Altamont. “The lesson is, take a good look at bird use of an area, and don’t put in a wind farm where there are a lot of birds,” he said. Murdock said the Audubon Society is concerned about global warming and, therefore, likes wind power. But picking the right location for wind farms, and studying the impacts of those projects, is critical, she said. “If we had known then what we know now in terms of Altamont’s significance for golden eagles and other birds, it would have never gotten built where it did,” Murdock said. Contacts: Jeff Miller, Center for Biological Diversity, (510) 499-9185. Elizabeth Murdock, Golden Gate Audubon Society, (510) 843-9912. Chris Bazar, Alameda County Planning Department, (510) 670-5400. California Energy Commission study of bird mortality at Altamont Pass: www.energy.ca.gov/pier/final_project_reports/500-04-052.html American Wind Energy Association: www.awea.org

A convergence of money, technology and landscape has given rise to a project that is both understated and remarkable. However, the set of forces, circumstances and personalities behind the Letterman Digital Arts Center in San Francisco is unlikely to be matched in the Bay Area or anywhere else. One unique circumstance is the presence of a former military base – the Presidio – that lies entirely within the boundaries of San Francisco, offering an opportunity for large-scale development in a city that is both “built out” and hostile to major projects. Unlike most military bases, which are barren stretches of contaminated soil, the Presidio is a park-like place with hundreds of historic buildings. Another hard-to-repeat factor is the role of filmmaker and special-effects entrepreneur George Lucas, who leased the Letterman site from the Presidio Trust to build an 865,000-square-foot complex for Lucasfilm Ltd. and its Industrial Light & Magic and LucasArts divisions. By itself, the act of bringing 1,500 high-paying technology jobs to a city would elevate Lucas to hero status. The creative mind behind Yoda and Obi-Wan Kenobi went several steps further, however, to “green” the Letterman complex, which opened in July. Beyond the gadgets and renewable materials that characterize the new film and technology studio, the green factor here is a park designed by Lawrence Halprin, the octogenarian master who is probably the most important landscape designer in San Francisco since the Olmsteads. Lucas’s most remarkable act, however, has been to donate 17-acres of his Halprin-designed landscape as a public park. Given this level of largesse, Lucas might have been forgiven if he had opted for a self-glorifying building, such as a Frank Gehry-type explosion of gesticulating metal, with his name spelled out in halogen lights. The architectural historian Vincent Scully has written about a kind of nervousness or restlessness in recent American architecture, as if buildings were impatient to be noticed. The recent ascendancy of sculptural, gesture buildings has only accelerated this trend. Something very different has happened at Letterman, however. The design by the San Francisco office of Gensler Architects and DKS Inc. is restrained and peaceful; it has what critics in past ages called “repose”—a largely forgotten quality in 21st century California. The Letterman Digital Arts Center is a set of low-rise buildings in a vaguely historical style intended to complement the Presidio’s genuinely historical buildings. The new buildings have steep pitched roofs and terra cotta tile. Some buildings have flat plaster walls and deeply punched windows; others have walls in red brick panels. Lucas has been so undemonstrative, in fact, that he decided against putting his name on the thing, deferring instead to the memory of an unsightly military hospital that previously occupied the spot. Some people have been critical of the total size of the Lucas project. They would do well to remember that the hospital was an undistinguished building that was 10 stories tall. Keep in mind that this act of park donation was anything but passive. It was not a matter of Lucas taking an existing clump of grass and saying, “Oh, you take it.” This park is actually an earthworks built atop an enormous, sub-surface garage for 1,500 cars. Going underground was Lucas’ idea of keeping the site clear of cars, and the execution may have added $10 million to the $100 million total cost of the compound. (The City actually waived an additional 1,000 parking spaces normally required under zoning because of the high rate of transit use expected from Lucas employees.) More remarkable still is the relationship of the public park to the LucasArt buildings. Most film studios in Burbank, by way of contrast, have the look of armed camps, and the Pixar studio in Emeryville is surrounded by an imposing wall. Here, there is little apparent divide between the park and the buildings, where the security apparatus is kept mostly inside. Lucas’ decision to hire Halprin for what could be the designer’s last major project in the Bay Area is particularly moving. Halprin is one of the very few landscape architects who are universally known outside the profession. It would be impossible here to overemphasize his influence on American urbanism and the notion of creating parks and fountains out of streets and other non-traditional turf. As a modernist, Halprin prefers abstraction over literalism. This quality of abstraction, combined with a deep appreciation for materials, has allowed him to evoke something like the feeling of nature and natural forces, particularly in places, like busy city streets, where creating the illusion of nature is impossible. One of Halprin’s best-known masterworks is a series of three linked fountains and courtyards stretched along an eight-block route in downtown Portland. Cities, after all, are only interventions on a natural landscape, and Halprin seems intent on reminding us of forces that continue to operate beneath the concrete and asphalt. While not as spectacular as the Portland scheme – the Letterman site does not call for demonstrative gestures – Halprin has managed to bring a lot of broken rock and waterworks, including a new stream and lagoon, into his new park. As landscape designer for the entire LucasFilm complex, Halprin also insisted that architects preserve the sight lines both to the Golden Gate Bridge and the Palace of Fine Arts, Bernard Maybeck’s early masterpiece, which has its own reflecting pool. Oddly, the designs of Halprin, who is possibly the most influential landscape architect in America of the past 50 years, seem to be endangered. Skyline Park, a project in Denver from the 1960s, was recently demolished. Portland, in contrast, created the Lawrence Halprin Park Conservancy to refurbish the landscape designer’s projects in that city. Portland deserves praise. But the big roses go to the guy who paid for a Halprin park out of his own pocket and then gave it to the public. Lucas, a filmmaker who seems intent on surpassing himself with each project, has trumped himself with the park in the Presidio.

The Los Angeles County Board of Supervisors has voted 3-2 to appeal a Superior Court judge’s decision upholding stormwater regulations adopted by the Los Angeles Regional Water Quality Control Board. In a complex ruling issued in March, Judge Victoria Chaney affirmed the regulations, which require local governments and developers to implement measures that clean up and slow down storm water runoff. Like an appeals court that upheld similar regulations in San Diego (see , January 2005), Judge Chaney ruled that the regional board could impose controls beyond the Clean Water Act’s “maximum extent practicable” standard and the state Porter-Cologne Act’s “reasonably achievable” standard. Chaney also ruled that the regional board did not have to provide exceptions for jurisdictions that cannot meet the runoff standards through “best management practices.” Chaney further rejected arguments that the regional board should have prepared an environmental impact report, that the regulations improperly intrude on local land use authority, that the board could not limit grading during the rainy season, and that the regional board should have considered economic impacts. Supervisors Michael Antonovich, Yvonne Braithwaite Burke and Don Knabe voted to appeal; Supervisors Gloria Molina and Zev Yaroslavsky voted against appealing. Environmentalists called the appeal a waste of money. County attorneys said they only want to ensure that regulatory programs are proven and cost-effective. The case is , Los Angeles County Superior Court Case No. BS 080548. Interestingly, Judge Chaney ruled in May that local governments may seek state reimbursement for complying with stormwater runoff regulations. Local governments say the stormwater requirements will cost billions of dollars. Local governments in 2001 submitted four test requests for reimbursement to the Commission on State Mandates. The Commission rejected the requests, citing a 1984 state law (Government Code § 17516) that exempts state and regional water quality regulations from a requirement that the state pay for mandated local programs. Chaney ruled that the 1984 law violated a post-Proposition 13 state constitutional amendment that prohibits the state from shifting costs to local governments. Chaney did not order the Commission to award the claims, only to reconsider them. The decision in , No. BS 089769 is on appeal.