A city that acquires land for two roads through eminent domain does not have to compensate the property owner for the growth-inducing impacts of the roads, the Fourth District Court of Appeal has ruled. In a case in which 50 cities joined an amicus brief supporting the City of Carlsbad, the appellate panel threw out $2.3 million worth of damages that a jury had granted to the owners of two nurseries. Those damages were based on the notion that the extension of Poinsettia Lane and Brigantine Drive — for which land was condemned — would speed residential development in the area, and that the growth pressure would shorten the nurseries' life spans. " he claimed shortened life expectancy and depreciation of nursery business assets and improvements is caused not by the construction and use of extended Poinsettia Lane and Brigantine Drive, but by the residential development on surrounding properties claimed to have been ‘accelerated' by that use," the court ruled. " s the city persuasively puts it, ‘growth inducement is simply not part of the design, construction and operation of the public project, which is the basis for compensable severance damages.'" In June 1998, Carlsbad filed eminent domain actions against the owners of two properties. Joseph and Barbara Rudvalis owned one parcel, on which they operated a wholesale orchid nursery. The other property was owned by William and Donna Baker; Pamela Koide leased that property month-to-month and ran a wholesale nursery. The nurseries were nonconforming uses on land that had been designated for residential development in the city's general plan since 1965. The city sought .05 acres of the Rudvalis property and 3.07 acres of the Baker's land to build two roads. After a trial, a jury awarded the Rudvalises $118,000 for physical damages to personal property, $745,000 in economic damages to personal property, and $640,000 in "economic damages to improvements pertaining to realty severance damages to improvements." The jury awarded Koide $153,000 for physical damages to personal property, $759,000 in economic damages to personal property, and $195,000 in economic damages to realty improvements. Furthermore, the court awarded litigation expenses of $346,000 to the Rudvalises and $264,000 to Koide. After the court refused the city's request for a new trial, the city appealed. The city did not contest the awards of $118,000 and $153,000 for physical damages. But it did appeal all of the economic damages and the litigation expenses. A three-judge panel of the Fourth District, Division One, overturned the lower court. The appellate court threw out the $2.3 million worth of economic damages to personal property and realty improvements, and the Fourth District directed the lower court to reconsider litigation expenses. The nursery owners and their experts contended that accelerated urbanization resulting from the new roads would shorten their businesses' remaining economic life by about six to eight years, so the city should compensate the owners for their potential losses. The city countered that compensation was not justified because the economic damages were not the direct result of the condemnatory act. Siding with the city, the Fourth District focused on "the causation element." Damages must be "based on conditions ‘caused by' or ‘resulting from' the project that are substantiated by competent, nonspeculative and nonconjectural evidence," Justice John O'Rourke wrote, citing the state Supreme Court's landmark eminent domain case , (1997) 16 Cal.4th 694 (see , September 1997.). In the Carlsbad case, the damages claimed by the nursery owners did not flow directly from the public project's construction and use. "Even if we were to assume the subject project attracted residential development to the area, such urbanization would occur and the defendants' asserted damages would be exactly the same if the road extension passed through adjoining property not owned by the defendants. In fact, much of the incoming development was not dependent on the Poinsettia extension." Furthermore, both the Rudvalises and Koide continued to operate the nurseries at the time of the trial — three years after the project's completion, the court pointed out. O'Rourke wrote that even if the court accepted the nursery owners' argument that the project caused the damage, the damage caused no injury because the nursery owners "have no legal right or vested interest in keeping the surrounding land free of incoming development or increased population." As for the damages to removable personal property, the court said the general rule is that such property is not compensable. "It is only where personal property is ‘damaged or destroyed by the physical appropriation of a portion of the owner's property' that such damage is compensable in eminent domain," O'Rourke wrote, citing , (1984) 156 Cal.App.3d 428. The nursery owners were not uprooted, the road did not encroach upon their buildings or assets, and the condemnation did not render relocation impossible, O'Rourke wrote. Plus, actual physical damages to assets such as plant stock were awarded separately. Moreover, lost future income from allegedly damaged property falls in the category of "goodwill," and the nursery owners had withdraw claims for goodwill damages prior to the trial, the court noted. The Case: , No. D039112, No. 03 C.D.O.S. 4950, 2003 DJDAR 6275. Filed June 10, 2003. The Lawyers: For Carlsbad: Ronald Ball, city attorney, (760) 434-2891. For Rudvalis: Gary Weisberg, Palmieri, Tyler, Wiener, Wilhelm & Waldron, (949) 851-9400.

By percentage, Western Placer County's growth rate is about the fastest of any area in California. And the cities of Roseville, Lincoln and Rocklin — and Placer County itself — are planning for numerous large developments with tens of thousands of housing units. Placer County is located along the Interstate 80 corridor in metropolitan Sacramento. But unlike the region's other eastern growth corridor — El Dorado County along Highway 50 — Placer County has escaped major growth fights. Still, Placer County is faced with mounting traffic problems, air pollution and questions about water availability. Public opinion polls indicate area residents are concerned about traffic and sprawl, but "it hasn't turned into any real political movement" in Placer County, conceded Ed Pandolfino, Sierra Foothills Audubon Society conservation chairman. Jack Wallace, president of the Roseville Coalition of Neighborhood Associations, would like to see his city rein in growth. But Wallace, a former planning commissioner who lost a City Council bid last fall, said he cannot convince Roseville's newer residents about growth-related problems. Wallace and Pandolfino agreed that many of the newcomers are from the Bay Area and do not see western Placer County's growth as detrimental. So it appears to be full-speed-ahead for growth — one reason the Sacramento Area Council of Governments (SACOG) is pushing a regional anti-sprawl plan. Among the largest projects: • The west Roseville specific plan, which covers 3,100 acres west of town. Roseville intends to annex that territory and an adjacent 2,100 acres. Under a memorandum of understanding with the county, the city could permit 15,600 housing units on the 5,200 acres. The two sides have been in intense negotiations regarding tax sharing and mitigating development impacts, Placer County Planning Director Fred Yeager said. • The 1,800-acre Sunset Ranchos between Rocklin and Lincoln. Rocklin is planning to annex the land, where 4,200 housing units and 480 acres of commercial, office and industrial development are planned. • Placer Vineyards, a 5,000-acre, 14,000-house project in unincorporated territory near Roseville. An environmental impact report on the specific plan is due later this year. • An 1,800-acre California State University campus and new community proposed by Los Angeles-based developer Eli Broad for unincorporated land just north of Roseville. • An 1,100-acre Christian Brothers religious order university and campus community — all backed by Sacramento developer Angelo Tsakapoulos — for unincorporated territory west of Roseville. In addition, both Lincoln and Rocklin are updating their general plans. Lincoln is looking to grow northwest into new territory to accommodate a growth rate of more 5% annually through 2025. This level of growth in the cities has become business as usual. In 20 years, Roseville has grown from a city a 26,000 people centered around rail yards to a city of 90,000, and Hewlett Packard, with 4,500 workers, is by far the largest employer. With a huge Sun City development and less exclusive subdivisions, Lincoln — whose population has quintupled in two decades to more than 20,000 — has become a bedroom and retirement community. And Rocklin, whose population also has quintupled in 20 years (partly because of annexation), is filling with houses, apartments, offices and stores. By 2025, the three cities combined will be home to about 240,000 people, according to SACOG. However, the growth plans for unincorporated Placer County mark a departure. For 30 years, the county has directed growth to cities. But with its most recent general plan update, the county designated the Placer Vineyards site as an urban growth area because growth in nearby Sacramento County is making farming infeasible and because there is good access to roads, and water and sewer facilities, Yeager explained. Plus, Roseville has not wanted to annex the territory. The two university-based proposals are in the early planning stages. In July, the county returned the Christian Brothers' application as incomplete and inappropriate for the agricultural area, Yeager said. The other campus would start as a CSU Sacramento extension and evolve into a separate, 15,000-student campus; the neighboring new community would include a variety of development types. The site, though, is near the county garbage dump and is zoned for industry and agriculture. Yeager said he will seek direction from the Board of Supervisors before processing either proposal. Meanwhile, the 5,200 acres covered by the Roseville-county MOU represent the next frontier for that city. Plan details and an EIR are due in late summer, said Vance Jones, Roseville project planner. Before starting the planning process last year, the city conducted a feasibility analysis because the city had done earlier infrastructure modeling based on buildout within existing city boundaries — and did not take into account the MOU area. The analysis found, among other things, that the development could be a money-loser for the city and that a new source of water is needed. Still, city officials concluded that developers and the city could overcome the obstacles. Ray Giles, chairman of a citizens traffic task force that recently released a report urging congestion and safety upgrades, is not convinced. "It will generate traffic congestion, not so much in that area, but in the existing portions of Roseville," Giles said. The Christian Brothers' proposal concerns both slow-growth advocates and the city. Community activist Wallace contended the university plan is a ploy to get local government officials to open the area for development. Jones said the proposal conflicts with the city's desire not to sprawl all the way to Sutter County. "It's exactly this kind of thing that got us thinking about a western buffer," Jones said. But during a recent presentation to the Roseville Chamber of Commerce, Tsakapoulos planning consultant Tom Lumbrazo boasted of the 6,000-student university's social benefits and said the site would not remain in the "middle of nowhere" for long. In Lincoln, development outlined in the 1987 general plan occurred faster than expected, Community Development Director Rod Campbell said. Del Webb has built about half of its 6,800-unit Sun City Lincoln Hills retirement community, and development is proceeding at the 3,400-unit Twelve Bridges and 2,900-unit Lincoln Crossings projects. "We've kind of become this mix of retirees and very young families," Campbell said. The influx has helped downtown, where eateries, stores and offices thrive. But traffic routinely jams on Highway 65, which remains the two-lane main street through downtown. A bypass around downtown is planned and $170 million is programmed, but construction is at least four years away. Still, Campbell, who has been with the city 23 years, hears few complaints about growth. The last growth protest was a late-80's initiative that sought to block the city's southward expansion. The initiative lost 5-to-1. Contacts: Fred Yeager, Placer County, (530) 886-3000. Vance Jones, City of Roseville, (916) 774-5276. Rod Campbell, City of Lincoln, (916) 645-3320. Jack Wallace, Roseville Coalition of Neighborhood Associations, (916) 782-5924. Ray Giles, Roseville traffic task force, (916) 781-3458.

There is a certain kind of excitement — my guess is it is uniquely American — when cities reach a moment of transition, such as when a small city gets its first high-rise building. On the other end of the urban life cycle, another moment occurs when an aging downtown blooms with second-hand stores and ethnic delicatessens amid retirement homes and tattoo parlors. Suburbia, too, has its moments of excitement and transition, even if the idea might make some urban loft dwellers snigger in their cappuccinos. That sense of arrival may be triggered by the arrival of a "town center," or a shopping street with old-fashioned-looking architecture built all at once by a single developer. Another prestige play for a growing suburb is development of a cultural center, which is often a live-performance theater combined with galleries and community spaces that support the arts. Rancho Cucamonga — a fast-growing, young community in San Bernardino County with a population of 177,000 — has "gone one better" by combining a town center with a cultural center into a single project. No doubt, such a project is a barn door for snobs who want to sneer down their noses at suburban presumption, which is not my aim. As I mentioned in the June 2003 Places column, even a phony street can grow up to become a real city district given the right kind of aging. Just as buildings can "learn" and undergo modification over time, so too can cities learn — if very slowly. Victoria Gardens does not promise to be a masterpiece. The town center is of the crypto-New Urbanist type, which copies the moves of better designers without fully understanding them. The cultural center, for its part, has suburban soccer mom written all over it. Still, the addition of a cultural center, however bland its offerings may turn out to be, is preferable to the typical town center project that is devoted entirely to retail. Even for suburbanites, there is more to life than shopping. The idea of creating a "synergy" between the mall, which brings in the crowds, and a cultural center, which provides an alternative to consumption-as-entertainment, is worthwhile. Also interesting is that the cultural center, construction of which follows the retail space by about a year, is to be directly subsidized by the shopping center. It is entirely appropriate for retail to generate something more than sales tax revenues. Both facilities — retail and cultural — can reinforce each other and help create a more genuine and varied sense of public life between them than retail or theater by themselves. The site plan of Victoria Gardens is mostly competent if uninspiring. It provides the beginnings of a coherent set of streets and spaces. Even if Victoria Gardens does not really challenge the suburban paradigm of parking in front of the store, at least much of the parking is tucked out of the way, and the pride of place is given to open space and streetscape. One obvious problem is that the scale is too big, which I suspect is a reflection of designing the largest retail stores for big box retailers. It is clear that the open space, especially the park-like spaces at the center of the plan, have been determined by the size of the retail buildings. This is an almost equally bad error; actually, it is the same error reflected into open space. I estimate the largest buildings are about 400 to 500 feet long, which is equal to a long city block, such as those in downtown Los Angeles. Fortunately, the length of the green space appears to be lined with a row of retail storefronts, and presumably those storefronts will open directly onto the green space. This is a plus because glass storefronts are pleasant for pedestrians and retailers can activate an otherwise static space. Ideally, some of these retailers will be small, food-court type merchants. To make the town square more inviting, the developer should add plentiful trees and tents shade — an extremely desirable feature for public space in hot, arid San Bernardino County. Merchants should also fill the town square with café-style tables with umbrellas. Keep in mind that the old Farmers Market in Los Angeles created an environment that has been popular for six decades, despite very few upgrades and a complete lack of landscaping, by providing a simple combination of food, shade and places to sit. The open space has further problems: Again, the central green space, which seems inspired by Beaux-Art plans, goes from nowhere to nowhere. There is no reason to walk on it. Further, even though the plan suggests a corridor, it is in fact unwalkable, unless pedestrians are willing to jaywalk across the street and push their way through the landscaped median: As far as I can tell, no crosswalk or signal are provided through the center of the plan! Also dubious is the design of the cultural center's fan-shaped courtyard, which opens invitingly into… the parking lot. However well intended as a "friendly" space, the courtyard is actually a dead space that needs a Lawrence Halprin fountain or a Richard Serra sculpture or some other large, interesting object to activate it. And without meaning to seem arch, the facade of the cultural center tries too hard to be interesting, as if a theater and a library needed to advertise themselves like a party store. Serenity, not anxious attention-seeking, should be the key here to sound a note of timelessness amid the gaudy, transient images of the shopping center. Despite those design flaws, the project is a step forward for Rancho Cucamonga because it gives the city a public realm that offers more than shopping. Rancho Cucamonga is trying to become something more than a bedroom community, and it is doing so by providing for a more public way of life. Without irony or snobbism, I look forward to seeing a sense of community manifesting in these buildings and spaces.

In response to a new state law that mandates the easier regulatory processing of second units, cities and counties across California have been revising their regulations. Most jurisdictions are relaxing their rules, although some cities and counties appear to be adding performance standards that could discourage second-unit development. Many cities and counties are allowing larger second units — commonly called granny units or granny flats — than the jurisdictions used to permit. In general, the local governments are still requiring setbacks and off-street parking. Some cities and counties are requiring affordability deed restrictions, and some places insist that the property owner occupy either the principal house or the accessory dwelling. Few planners anticipate a rush to build second units, although there appears to be more demand in some rural areas than in the suburbs or central cities. Still, local officials are chafing at what they see as a loss of local control. "The state took away the ability to have local input," said Mark Deming, principal planner for Santa Cruz County. To comply with state law, a revised county ordinance for second units "basically makes the process a building permit process," he said. The law that spurred the ordinance revisions is AB 1866 (Wright), which the Legislature approved in 2002 (see , October 2002). The law requires ministerial review of applications for second units on land zoned for single- or multi-family residential development. Backers of the legislation contended it was necessary because many local governments subjected second-unit applications to lengthy, discretionary reviews and imposed expensive conditions. Supporters said the process could be difficult enough to discourage applicants. The law gave cities and counties a July 1 deadline. The League of California Cities and the California State Association of Counties lobbied against AB 1866, but only partly because of the second-unit provisions. The bill also mandated that local governments grant almost any application for a housing development density bonus. But it is the prohibition on discretionary review of second units that has received most of the attention. "I just have to express my continued amazement at the amount of attention that part of the bill has received," said Marc Brown, co-director of the California Housing Law Project and an AB 1866 backer. The density bonus provision is more important, he contended. Still, many planning departments have spent months working on second-unit ordinance revisions. A sampling: • The City of Berkeley dropped its requirement for a use permit for second units, which were permitted only in single-family residential zones. Accessory dwellings of 300 to 500 square feet are now allowed by right in nearly all residential zoning districts, as long as the units meet setback and height restrictions that apply to the main house. Proposed second units that do not meet the performance standards could still be approved via an administrative review process, said Senior Planner Janet Homrighausen. City officials hope the new rules, which were adopted in July, will encourage owners of single-family houses on lots zoned for multi-family development (the city has many of these) to build second units. The revised ordinance does mandate that the owner reside in one of the units, which is a new requirement. Berkeley has received about two dozen applications for second units during the last seven years. "We can't really predict how many more applications we will have, but I would expect it to rise," Homrighausen said. • The City of Livermore relaxed its regulations to allow second units of up to 1,200 square feet. The units may be one or two stories and are allowed only in single-family zoning districts. Setback and lot-coverage standards apply. • The Town of Moraga did away with its discretionary review process, but an ordinance adopted in May still requires the city to notify neighbors of a second-unit application. The second units are permitted in any residential zoning district and may be up to 750 square feet. Second units must be at least 500 feet apart, are not allowed on slopes of more than 20%, and they are subject to a number of design standards. "We have not shut the public out of the process. They just have to comment on these objective standards," said Planning Director Lori Salamack. Although the planning director will decide second-unit applications, anyone can appeal to the Planning Commission "to allow for human error," she explained. Salamack expects to see most second-unit construction occur with development of new homes, as the city has potential for large-lot residential development. The city will impose conditions on second units that accompany new houses, she said. • Santa Cruz County eliminated its discretionary review process for second units, which included public notification and a zoning administrator hearing. But because the process is now ministerial and the county cannot consider site-specific conditions, a county ordinance adopted in June includes more standards, said Deming. Inside the county's urban services line, second units are now restricted to 640-square-feet and one story. Outside of the urban services line, second units of up to 1,200 square feet are allowed, depending upon the lot size. Second-unit occupancy is limited to a family member, a moderate-income senior renter or a low-income, non-senior renter. The county processed "a few hundred" second-unit applications under the old system, said Deming, who has already seen increased activity. "We had them lined up at the counter as of July first," he said. • The City of Sierra Madre is considering scrapping its ordinance that requires second units to be attached to the primary house and that requires the second unit occupant to be a relative of the primary unit owner. Under the new ordinance a unit of up to 400 square feet could be attached or detached, and could be rented to anyone. However, the city is would require that second units have a deed restriction limiting them to very low- or low-income rents. The second units would be allowed only in single-family residential zones. The idea is to accommodate one or two people in an efficiency-style unit, said Sierra Madre Community Development Director Kent Christiansen. "We certainly don't want these units turning into family units. We didn't want two full houses on a single-family lot. We truly want these to be an accessory unit," he said. Sierra Madre has a number of "guest houses," which have no kitchen. Christiansen said he expects to see applications for converting those guest houses into separate living units, although he was unsure how the city would handle retrofits. • Ventura County revised its ordinance to allow larger second units. Under regulations adopted in May, the county will permit units of up to 900 square feet on parcels of more than 10,000 square feet, and second units of up to 1,200 square feet on lots larger than 5 acres. The county also amended its ordinance to permit second units on nonconforming lots of at least 20,000 square feet. In general, second-unit ordinances reflect local political values, said Jeff Goldman, a principal at Cotton/Bridges Associates in Sacramento. Concern is often greatest in built-out urban and suburban areas, he said. "Some people see second units as anathema — second units are going to ruin the single-family nature of our neighborhood," Goldman related. But Goldman said concerns about second units overwhelming a neighborhood are unfounded. "I don't see a groundswell of consumer demand to create second units," he said. Second units are likely to play only a minor role in resolving California's housing shortage, he said. Housing advocate Brown is tracking local government compliance with AB 1866. He and other housing lobbyists are behind AB 1160 (Steinberg), which would bar cities and counties from imposing unreasonable standards on second units. That bill has stalled for the year, but Brown believes that some cities and counties are inadvertently making the case for AB 1160 by adding strict standards to second-unit ordinances. Contacts: Marc Brown, California Housing Law Project, (916) 739-6293. Kurt Christiansen, City of Sierra Madre, (626) 355-7135. Mark Deming, Santa Cruz County, (858) 454-2580. Jeff Goldman, Cotton/Bridges Associates, (916) 649-0196. Janet Homrighausen, City of Berkeley, (510) 981-7480. Lori Salamack, Town of Moraga, (925) 376-5200.

An appellate court has reinstated a Santa Monica Rent Control Board lawsuit against a landlord that a trial court had dismissed as a SLAPP suit. The lawsuit was the board's legitimate attempt to get a judicial determination that the landlord was violating local rent control laws, the Second District Court of Appeal ruled. The litigation pitted two longtime nemesis — the rent control board and property rights attorney Rosario Perry, who in this case was sued as the property owner's manager and who was the defendants' lawyer. The lawsuit revolved around the rent charged for two units in a four-unit apartment building on Pearl Street. In July 1999, the property owner — at that time Robert Hackamack — filed a notice that he intended to withdraw the property from the rental market. He did so as of August 30, 1999, and he evicted the tenants from units A and C, which were rent-controlled apartments. He and his mother were listed as the occupants of the other two units and they paid no rent. In September 2000, Hackamack filed a notice with the rent control board stating his intention to restore the property to the rental market. Under state law and city ordinance, Hackamack could charge no more for the initial re-rental of units A and C than if the units had been continually rented. The board notified Hackamack that the maximum allowable rent was $467 per month for each unit. Rental agreements indicated that as of November 1, 2000, each unit was rented for $467 a month. In February 2001, Pearl Street LLC — the legal entity that had assumed property ownership — filed a "vacancy unit registration" with the board for unit C and stated that rent would rise to $1,750 per month. In May, the landowner went through the same process for unit A, raising the rent to $1,661 per month. The rent control board then filed a lawsuit alleging that the first re-rental periods were shams. The board contended that no one ever occupied unit C, and that Hackamack's mother — the listed tenant in Unit A for three months — was not a legitimate tenant and did not pay rent. Thus, the board contended the landlord could not charge more than $467 per month for rent. The defendants countered that the litigation was a SLAPP — a strategic lawsuit against public participation. They contended the lawsuit was an attempt to punish them for filing documents with the board and exercising their rights under rent control law. Los Angeles County Superior Court Judge Lorna Parnell ruled that the litigation was indeed a SLAPP suit. She dismissed the case and awarded the defendants attorneys' fees and court costs. The city appealed, and a three-judge panel of the Second District overturned the lower court. At issue was whether the city's lawsuit "arose from" the property owners' constitutionally protected activities. Lawsuits that arise from protected activities are considered SLAPP suits because they chill the exercise First Amendment rights. The Second District noted that the state Supreme Court in , (2002) 29 Cal.4th 69 (see , October 2002) ruled that "arising from" does not mean the same thing as "in response to." And that is where the Santa Monica case turned. "Here, defendants claim their protected activity is the filing of paperwork, with the board, to restore units A and C to the rental market, and to assert that an initial ‘first re-rental' of such units had occurred prior to the tenancies commencing on February 1, and May 11, 2001, respectively," Justice H. Walter Croskey wrote for the court. "But defendants were not sued for their conduct in exercising such constitutional rights. They were sued by the board to compel their compliance with the provisions of rent control law. "Thus, while this suit may have been ‘triggered by' defendants' submission of such documents to the board, it is not true that this suit is based on the filing of such papers," Croskey continued. "Rather, the suit is based on activity that preceded the filing of the papers. This suit is based on the board's claim that defendants are charging an illegal rent for units A and C. … If we were to accept defendants' argument, then they could preclude any judicial review of their violation of the rent control law, no matter how egregious, by simply filing a SLAPP motion in response to any board complaint." The court also rejected the argument that the rent control board was attempting to enforce portions of the rent control ordinance that had been stricken down in earlier litigation. The court reversed the order awarding attorneys' fees and legal costs, and it sent the case back to the trial court for further proceedings. The Case: , No. B157751, 03 C.D.O.S. 5444, 2033 DJDAR 6867. Filed June 20, 2003. The Lawyers: For the city: Doris Ganga, (310) 458-8781. For Pearl Street: Rosario Perry, (310) 394-9831.

A Santa Barbara County property owner has been allowed to pursue a lawsuit alleging that the county violated his rights of free speech, equal protection and due process by giving him a hard time with proposed developments. The Ninth Circuit Court of Appeals upheld a district court decision, which threw out five of the landowners' claims because they were filed too late. However, the Ninth Circuit overturned the lower court with regard to two claims that were not filed too late. The lower court had ruled that they were unripe takings claims, but the appellate panel characterized them as "separate claims supported by allegations of discrete constitutional violations." The appellate panel directed the district court to review the merits of those two claims. The lawsuit was filed by Patrick Nesbitt, who owns property along the coast near Carpinteria. Nesbitt has sought to develop his property in a number of ways and has received 11 county permits since acquiring the property in 1994. The litigation apparently stems from conflicts between Nesbitt and the county over the size of a residence he wants to construct and a polo field. The county has proposed numerous conditions on the residence, has told Nesbitt to apply for a major conditional use permit for the polo field, and has threatened to levy $25,000-per-day fines if he plays polo without obtaining the permit. Nesbitt claimed that the more he spoke out in public forums, including to local newspapers, about the county, the county increased conditions and restrictions on his property and delayed permitting — thereby violating his First Amendment rights. He also argued that his right to equal protection of the law was violated because the county did not impose the same conditions on similarly situated property owners. And he contended his right to due process had been violated because the county subjected his plans to a local review committee and because biased decision-makers had been motivated by retaliation. Nesbitt cited a number of actions by the county to support his position. However, all but two of the actions occurred more than a year before he filed his lawsuit, and the statute of limitations was one year, according to both the district court and the Ninth Circuit. Two contentions, however, were not barred by the statute of limitations: That the county wrongly required Nesbitt to apply for a major conditional use permit and then failed to act on the application, and that the county attached discriminatory conditions to his residential building permit. The district court determined these two contentions were "as applied" takings claims, and the court ruled that they were not ripe for court review because the county had not rendered final decisions. But the appellate court disagreed. "If, as Nesbitt alleged, the county's requirements, conditions, delays and fees were imposed in retaliation for his exercise of his First Amendment rights to publicly criticize the county and to access the courts, Nesbitt suffered harm thereby and did not have to await further action by the county," the court ruled. The same theory applies to Nesbitt's equal protection and due process claims, the court ruled. " is challenge is to the procedure he had to endure to get those permits. Even if the county relented today and issued all of the permits Nesbitt has applied for, he still would have been injured by the treatment he allegedly received and which caused him harm." The Case: , No. 01-57218, 03 C.D.O.S. 5504, 2003 DJDAR 6974. Filed June 25, 2003. The Lawyers: For Carpinteria Valley Farms (Nesbitt): A. Barry Cappello, Cappello & McCann, (805) 564-2444. For the county: David Pettit, Caldwell, Leslie, Newcombe & Pettit, (213) 629-9040.

RIVERSIDE COUNTY SUPERVISORS have approved two-thirds of the closely watched Riverside County Integrated Program (RCIP). In June, supervisors approved a new general plan and a multi-species conservation plan for the western third of the county. The final sticking point in the general plan concerned limits on development of farmland. In an attempt to slow urban sprawl, the plan prohibits major amendments for five years. Owners of agricultural land protested, so supervisors agreed to allow landowners to develop up to 7% of their farmland over 2 1/2 years. The habitat plan proposes to add 153,000 acres to an inventory of 350,000 acres already owned by the public. The half million acres is planned as permanent habitat for 146 species of plants and animals. The plan appears to have angered both landowners and environmentalists, and a court challenge of some sort appears likely. Implementation of the habitat plan will cost an estimated $1.5 billion over the next 25 years. In addition to state and federal funding, impact fees in the neighborhood of $1,000 per housing unit and $5,000 per acre of commercial development will pay for implementation. Full implementation will also require the 14 cities within the habitat plan area to adopt the plan. State Resources Secretary Mary Nichols and Department of Fish and Game Director Robert Hight both endorsed the conservation plan. "You are absolutely on the forefront in dealing with species and development," Hight told the Board of Supervisors. The RCIP is perhaps the most ambitious — and, at $32 million, definitely the most expensive — local planning effort in California history (see , January 2002, February 2000). Starting in 1999, county officials went to work on a new general plan, the habitat plan and a transportation plan all at the same time. The transportation plan will not be completed for about another year, according to county spokesman Ray Smith. ******** A FEDERAL JUDGE has thrown out the U.S. Fish and Wildlife Service's critical habitat determination for the Alameda whipsnake. Judge Anthony Ishii of the district court in Fresno agreed with the Home Builders Association of Northern California that the USFWS used a flawed methodology for assessing the economic impacts of the determination. Ishii also ruled that the agency failed to identify specific areas that have "essential biological features" critical to the snake's survival. In October 2000, the federal agency designated 405,000 acres in Alameda and Contra Costa counties as critical habitat for the whipsnake (see , December 2000). That huge designation and others, which builders are challenging on similar grounds, came in response to environmental groups' lawsuits over agency delays in designating critical habitat. Interestingly, Judge Ishii concluded that a critical habitat designation does not necessarily provide a species with more protection than a listing under the Endangered Species Act — an argument advanced by both the Clinton and second Bush administrations. The case is , No. CV F 01-5722. ******** RESIDENTS OF HACIENDA HEIGHTS, along Highway 60 a few miles east of Los Angeles, have rejected incorporation. During the June election, Measure HH lost 62.5% to 37.4%. A 1992 vote on incorporation was much closer. Cityhood proponents presented many of the same arguments that they did 11 years ago: More local control over taxes and services, and greater regional clout. Opponents contended a city would be an unnecessary layer of government and that the city would not have enough money to sustain itself. But there was also an ethnic tinge to the election. Hacienda Heights' 53,000 residents are fairly evenly divided Latino, Chinese and white. The Chinese community supported incorporation, leading to mutterings about an "Asian takeover." ******** CITY OF IRVINE VOTERS delivered a mixed signal about light rail during the June election. Voters rejected an ordinance (Measure A) supporting the proposed CenterLine project from Santa Ana to Irvine. But they also voted down a proposal (Measure B) that would have eliminated all references to light rail in the city's general plan. Both votes were 52% to 48%. Without a shovel of dirt being turned, the CenterLine route has already been shortened from a proposed 28 miles to 11.4 miles. The Irvine election now further throws into doubt what would be Orange County's first light rail service. ******** VOTERS IN THE VENTURA COUNTY city of Santa Paula approved a 32-acre extension of the city's growth boundary during a June election. Measure A received 56% voter approval. Balloting on the change to the growth boundary was required by the Save Agriculture and Open Space initiative that Santa Paula voters approved in 2000. Developer Scott Anderson wants to build about 70 single-family houses on the 32-acre site. ******** NAPA COUNTY VOTERS will decide on a stream setback ordinance that county supervisors approved earlier this year, as a referendum has qualified for the March 2004 ballot. The ordinance would prohibit non-residential development and new vineyards within 25 to 150 feet of streams, depending on the landscape and size of the waterway (see , May 2003). The measure has divided the county's wine industry. ******** CONTRA COSTA COUNTY VOTERS could decide on a measure that would prohibit expansion of the county's urban growth boundary without voter approval. County supervisors in June ordered staff members to prepare a measure for the March 2004 ballot. In 1990, voters approved an urban growth boundary, but supervisors can change it with a 4/5ths vote. In 2000, supervisors constricted the boundary. ******** IN A BLOW AGAINST BIG-BOX STORES, Contra Costa County has adopted an ordinance that prohibits stores larger than 90,000 square feet from devoting more than 5% of floor space to non-taxable items, such as groceries. Contra Costa County is probably the largest jurisdiction in California to approve one of these restrictions, which have been gaining popularity nationwide. Supervisors called the ordinance "good planning." Wal-Mart, a target of the ordinance, opposes the measure and appears ready to pursue a referendum. Grocery store labor unions are the ordinance's strongest supporters. ******** TWO LAWSUITS challenging the Sunrise Douglas Community Plan, which covers 6,000 acres in the new City of Rancho Cordova, were dismissed by Sacramento County Superior Court judges. In May, Judge Lloyd Connelly rejected Legal Services of Northern California's lawsuit, which alleged that Sacramento County — which approved the plan — had not lived up to an earlier agreement to provide approximately 1,000 acres of multi-family housing development. The county conceded the plan was about 60 acres shy on multi-family land, but officials promised to devote some commercial property to housing. The county's response satisfied Connelly. In June, Judge Raymond Cadei rejected a lawsuit from environmentalists and neighbors over the plan's environmental impact report. That lawsuit centered on impacts to the groundwater table. The community plan envisions up to 22,000 housing units on 6,000 acres of pastureland east of Sacramento on the Highway 50 corridor (see , August 2002). The plan area is entirely within Rancho Cordova, which residents voted to incorporate after the county adopted the plan. The plan appears to have the support of the new city, but the City Council recently indicated it wants to establish an assessment district that could cost new residents about $250 a year to pay for police. ******** A BILL THAT SOUGHT TO PROHIBIT developers from preparing their own environmental impact reports died in June. Both the Assembly appropriations and natural resources committees had passed AB 406, but author Hannah-Beth Jackson (D-Santa Barbara) could not muster 41 votes on the Assembly floor. The housing industry and business interests lobbied against the bill. About 160 cities and counties allow applicants to prepare their own environmental documents. The measure would have prohibited a project application from submitting environmental review documents and would have specifically required lead agencies or consultants hired by lead agencies to complete environmental reviews. The bill also would have prohibited applicants from imposing confidentiality on its consultants once the environmental review process had begun. The bill was a response to the review of the Newhall Ranch project, where the developer was alleged to have ordered its consultant not to reveal information about rare species on the site and to have blocked regulatory agencies' access to the property (see , March 2003). ******** OPPONENTS OF A PROPOSED 3,500-acre industrial and commercial development in south Sutter County have won a lawsuit contesting the project's environmental impact report. Sutter County Superior Court Judge H. Ted Hanson ruled that the county did not adequately address sewage disposal or traffic. Hanson did not even reach the multitude of concerns about endangered species. Sutter County supervisors adopted the South Sutter Specific Plan in 2002 (see , November 2002). The specific plan area is one-third of an area the county considers a 100-year industrial/commercial reserve in the vicinity of the Sacramento International Airport. However, a variety of regulatory agencies and species advocates disliked the plan. ******** A NEVADA COUNTY grand jury report urges the Board of Supervisors and county staff members to work with developers on building multi-family housing projects. The grand jury found that only 300 affordable housing units had been built in the unincorporated area (which has about 70% of Nevada County's 92,000 residents) since 1993. "In spite of the fact that the BOS claims to place a high priority on achieving affordable housing goals, no real action has taken place," the county grand jury report states. "Clearly, the BOS needs to retrain its focus on the development of multi-family housing units." The grand jury found that the county's emphasis on "workforce housing" for median income families was misplaced and that the county should instead focus on housing for very-low and low-income people. The grand jury recommended overhauling zoning ordinances and streamlining review to encourage such housing.

An administrative hearing that the City of Beverly Hills conducted for an adult business permit renewal violated the business's right to due process, the Second District Court of Appeal has ruled. The problem was that a city attorney — who earlier had contended that the business failed to submit a complete permit renewal application — also advised the hearing officer who considered the business's appeal of the decision to deny the renewal application. The same person cannot serve both a prosecutory and an adjudicatory function, the court held. Showgirls of Beverly Hills is an adult cabaret in Beverly Hills. Knowing that the city required their permit to be renewed every two years, the owners of Showgirls, Nightlife Partners, sought a permit renewal in early 2001. Nightlife Partners submitted an application in February of that year, but Assistant City Attorney Terence Boga contended that the application was incomplete. An attorney with Richards, Watson & Gershon who has also helped defend the city in an ongoing federal lawsuit over adult business regulation filed by Nightlife Partners, Boga said the cabaret owners were required to submit all documents, such as site plans and letters of justification, required for a new permit application. Nightlife Partners countered that neither the municipal code nor the application form required the documents. In April, the city's finance director sent Nightlife Partners a letter denying the renewal application. The letter said the application was incomplete and that even if the application had been complete, the city would have denied it because the cabaret failed to comply with the city's design and performance standards. Nightlife Partners filed an administrative appeal, which was heard in June by David Holmquist, an attorney and the city's risk manager. At the outset, Holmquist announced that he had never before presided over such a hearing and that Boga would be advising him. Throughout the hearing, the two men sat side by side, and they conferred from time to time. Nightlife Partners unsuccessfully objected to the fact that the hearing officer was a city official and to Boga's role. In September, Holmquist issued a decision denying the appeal. With no further administrative process remaining, Nightlife Partners sued, alleging that the hearing and procedures were unfair and that they violated the cabaret owners' due process rights. Los Angeles County Superior Court Judge Cesar Sarmiento ruled that Boga's participation in the hearing had constituted "actual bias" and that the city had violated Nightlife Partners' due process rights. Judge Sarmiento ordered the city to provide the cabaret owners with a new hearing. The city appealed and a unanimous three-judge panel of the Second District, Division Three, upheld the lower court. According to the appellate court, the issue was not whether there was actual bias, but whether the hearing met minimum constitutional standards of due process. The court said the hearing failed to meet those standards, which are essentially the same for an administrative hearing as for a judicial proceeding. "Just as in a judicial proceeding, due process in an administrative hearing also demands an of fairness and the absence of even a of outside influence on the adjudication," Justice Walter Croskey wrote for the Second District. The state Administrative Procedure Act (which does not apply to local hearings), the Model State Administrative Procedure Act, various other state administrative procedure acts and the federal Administrative Procedure Act all separate the prosecutory function from the adjudicatory function, the court noted. " prosecutor, by definition, is a partisan advocate for a particular position or point of view. Such a role is inconsistent with the objectivity expected of administrative decision-makers. Accordingly, to permit an advocate for one party to act as the legal advisor for the decision-maker creates a substantial risk that the advice given to the decision-maker will be skewed, particularly when the prosecutor serves as the decision-maker's advisor in the same or a related proceeding," Croskey wrote. "Boga had been city's advocate in connection with the decision to deny the application," Croskey continued. "Thus, Boga's presence as Holmquist's advisor was the equivalent of trial counsel acting as an appellate court's advisor during the appellate court's review of the propriety of a lower court's judgment in favor of that counsel's client." The city cited a number of cases in its defense, but the court held that those cases did not apply because in none of them did an attorney act as both a partisan advocate and an advisor to the neutral decision-maker. In addition to upholding the lower court, the Second District also ordered that the new hearing not be conducted by Holmquist or by any person who has advocated for the city in this case or the related federal litigation and that the hearing officer not be advised by anyone who has defended the city in the lawsuits. The Case: , No. B161436, 03 C.D.O.S. 3510, 2003 DJDAR 4445. Filed April 24, 2003. The Lawyers: For Nightlife Partners: Roger Jon Diamond, (310) 399-3259. For the city: Laurence Wiener, Richards, Watson & Gershon, (213) 626-8484.

A Southern California housing developer that has aggressively fought a wide variety of government fees in recent years has lost a building permit and plan review fee case at the Fourth District Court of Appeal. In a terse opinion, the unanimous three-judge appellate panel ruled that Barratt American's claims were either time-barred or attempted to rely on the wrong statutes. At issue were building permit and plan review fees that the City of Rancho Cucamonga levied for a 123-unit subdivision developed by Barratt American. In May 2002, Barratt American filed a petition for writ of mandate and a complaint against the city challenging the fees and fee schedule, and seeking a refund of $143,000 for fees paid since June 2000. The fees were based on Rancho Cucamonga's fee schedule, which calls for a building permit fee of $555 for work valued at up to $100,000 and an additional fee of $2.50 for every $1,000 in building value. The plan review fees are a percentage of building permit fees. Barratt American argued that Article 13B, §§ 1.5 and 8, subdivisions (b) and (c), of the state constitution compelled the city to complete an annual audit of fees and determine whether they exceed the reasonable cost of providing services. Barratt American also pointed to Government Code § 66016, which bars local agencies from levying fees that exceed the cost of providing service. The developer further argued that the fees were arbitrarily based on the value of construction and not on the city's cost of providing service. San Bernardino County Superior Court Judge Joseph Johnston ruled for the city. Barratt American appealed and the Fourth District upheld the lower court. According to the appellate court, Article 13B addresses governmental expenditures — not taxation, revenues or planning fees. Barratt American should have filed a validation action under § 66016 within 180 days of the fee schedule's adoption, the court ruled. Barratt American did file its lawsuit with 180 days of the city's re-adoption of the fee ordinance in January 2002; however, the court ruled that the fees could not be challenged now because the city only re-adopted existing fees. The city did not increase fees or levy new ones. Barratt American asked the court, under Proposition 62, to penalize the city for collecting and retaining illegal "special taxes." But the appellate court ruled that building permit and plan check fees are not "special taxes," that the developer's remedy lied in § 66016 and that it was too late to seek relief under that statute. Barratt American also asked for a refund under Government Code §§ 66020 and 66021, arguing that the fees were either entirely refundable as "special taxes" or were partially refundable as excessive fees. The court, though, pointed out that the cited statutes apply to development impact fees. "Barratt's effort to extend the scope of §§ 66020 and 66021 contradicts the whole statutory scheme in which development fees are treated differently than building permit and plan review fees. A fee does not become a development fee because a developer pays it," Justice Barton Gaut wrote for the court. More importantly, the court held that the developer had waived its right to recover the money. "Barratt did not act under compulsion; it had other alternatives," Gaut wrote. "It could have built its development elsewhere. It could have challenged the fee ordinance before proceeding. It could have tried to negotiate with the city. But, having accepted the benefits of the permit, it has no right to a refund." The Case: , No. E032578, 2003 DJDAR 6311. Filed May 28, 2003. Ordered published June 10, 2003. The Lawyers: For Barratt American: Walter McNeill, (530) 222-8992. For the city: James Markman, Richards, Watson & Gershon, (714) 990-0901.

Stanislaus County, the City of Patterson, and a North Carolina-based developer have teamed together on a business park that all parties hope will bring employment to an area that has seen rapid housing development but minimal job growth. Construction could begin as soon as this summer on the first 10-acre portion of the West Patterson Business Park. But officials are taking a long-term view of the project, which they believe could eventually serve as an employment center for up to 15,000 people. "We're probably looking at buildout at anywhere from 20 to 40 years," said Patterson Planning Director Rod Simpson. The long view is probably a good one to have, as Tracy, a city about 20 miles closer to the Bay Area than Patterson, has worked for years with modest success to lure businesses over the Altamont Pass to the Central Valley (see , November 2001). And near Tracy, the City of Lathrop and San Joaquin County have planned hundreds of acres of industrial and official parks. In 1999, Stanislaus County undertook an industrial and business park study of the Interstate 5 corridor. The study considered five sites and concluded that about 475 acres of industrially zoned land between Patterson and the freeway, which lies west of town, was the best site because of where it is located in the county, traffic circulation and proximity to city services. Following the study, Keystone Pacific revealed its desire to build a business park on 224 acres of farmland it owns just north of the area already zoned for industrial development. Keystone also plans a 950-unit housing project in the vicinity. So the city, the county and Keystone Pacific went to work on a master development plan for 820 acres, an infrastructure financing strategy, and a development agreement for Keystone Pacific's 224-acre site. The development agreement that was approved in January by the city and in April by the county spells out the responsibilities of all three parties. The deal is complicated but the basics are these: The city will extend water and sewer services to the area, the county will provide $1.5 million in road improvements, and the developer will build at least 60,000 square feet of flexible space on a speculative basis. Besides the deal with Keystone Pacific, the project also involves a great deal of cooperation between the city and the county, which has received the blessing of the Stanislaus County Local Agency Formation Commission (LAFCO). The 820-acre industrial park is outside the city limits. The site will remain unincorporated for a time, even though the city will provide services. Normally, LAFCO would require the city to annex the territory receiving the water and sewer services, said Executive Officer Fran Sutton-Berardi. But because the city and county have worked together and have agreements on the project, LAFCO was willing to allow an "out-of-boundary" agreement. Simpson expects it could be at least 10 years before the city annexes the industrial park. The LAFCO also increased the city's sphere of influence to cover the Keystone site and a neighboring 119-acre parcel. And the agency approved the city's annexation of Keystone Pacific's planned 950-home Patterson Garden's housing development and an adjacent sports park. The residential portions are important because residential development is helping fund infrastructure that will extend to the industrial area, according to Simpson. Both the residential projects and the industrial project will participate in a Mello-Roos or similar financing district. Keystone Pacific is responsible for building storm drainage facilities. Because the master plan area is within the city's new sphere of influence but still outside the city limits, the county is providing the entitlements, but both the city and the county are reviewing site plans and architecture designs. In fact, in late June the Patterson Planning Commission approved the site plan and design of Keystone Pacific's speculative project — three buildings totaling 72,000 square feet. Under the development agreement, Keystone Pacific (which did not return telephone calls) must begin construction of its speculative industrial project before the city can grant any residential building permits. The developer is limited to permits for 215 units until the speculative project is complete. The idea is to ensure that the business park gets started before residential construction shifts into high gear. Both the city and the county see the speculative project as a catalyst for more industrial development. "We have the same goal that the county does, and that's job creation for our citizens," Simpson said. A staff report to the county Planning Commission stated, "In recent years, the county — and Patterson in particular — has seen an almost unabated demand for residential development which has been satisfied by large-scale residential projects … Unfortunately, employment growth has not kept pace." Simpson noted his city's population has roughly doubled to 13,500 in about 15 years, with commuters to the Bay Area composing a large percentage of new residents. Stanislaus County Senior Planner Kirk Ford said that with the adoption of the master plan, general plan amendments and the rezoning of more than 300 acres, the industrial park "is as set up as we can get it at this point without having a specific project in mind." Officials centers are a strong possibility, though, because of the access to I-5, Simpson said. But distribution centers would make it difficult for the city and county to meet their goal of 25 jobs per developed acre. And distribution center jobs might not buy a home in Patterson, where new houses start at about $250,000. There has been virtually no opposition to the industrial development plan, even though water supply is always a concern in the region and the environmental impact report made clear the project's serious consequences. The EIR found that the groundwater basin (Patterson gets all of its water from wells) could support the project at full buildout. However, the increased pumping will lead to a quick degradation of the groundwater, forcing the city either to treat the groundwater before delivering it, or to find a source for surface water. The EIR, for which the city was the lead agency, identified several unavoidable impacts: Loss of hundreds of acres of prime agricultural land, cumulative impacts to I-5 traffic, cumulative air quality impacts, odors from the wastewater plant, and potential impacts to water supply and water quality. But the EIR did not receive a legal challenge. Contacts: Rod Simpson, City of Patterson, (209) 892-2041. Kirk Ford, Stanislaus County, (209) 525-6330. Fran Sutton-Berardi, Stanislaus County Local Agency Formation Commission, (209) 525-7660.

It is no secret that California is short on housing units, but the questions of where and how much to build are rarely easy to answer. Cities and counties are charged with the responsibility of developing not only communities in which people live and work, but also with protecting the health of the surrounding natural environment and agricultural lands. To achieve balance between these core values, advocacy groups and government agencies alike have taken interest in understanding the available supply of land and the capacity for planned growth in their regions. This interest has spawned a number of recent studies on the matter, with more on the way. These reports focus on detailed descriptions of land supply and planned capacity, future demand, growth visioning, and are in many cases expressly designed to influence policy, particularly a general plan update process. While city planners often know inherently where development potential exists, inventories and monitoring put numbers to this ground knowledge, reveal hidden potential, inform the public, and provide a basis for weighing alternatives. One straightforward approach is the City of San Jose's "Vacant Land Inventory" issued in July 2002. The study uses aerial photography to identify 2,200 acres of residentially zoned land, which it disaggregates by 13 geographical regions. The study further breaks down the properties by the density of residential zoning, which includes categories such as urban hillsides, transit corridor and high density. Another example of an effective capacity study is embedded within Contra Costa County's 2001 housing element update. The study identifies vacant underutilized land using a parcel specific land-use geographic information system. In addition to a regional breakdown of vacant acres, the study has also computed a regional breakdown for housing capacity and has evaluated the potential for affordable housing. Sacramento County has conducted a similar study in its 2002 housing element update. A report issued by Greenbelt Alliance in November 2002 titled "Vacaville At A Crossroads" is an example of a similar effort by an advocacy group. The report examines housing potential under current plans as well as the effect of several proposed city annexations, and changes in zoning codes (like creating mixed-use corridors). The report, which presents less technical data than some, focuses on sustainable development and presents an alternative to the status quo by directing future growth away from valuable habitat and farmland and into communities. While some studies focus on one city or on unincorporated county land, regional studies can provide a more comprehensive understanding of growth potential and regional choices. One such study is "Room Enough: A Report on Responsible Development in Monterey County," published in September, 2002 by Landwatch Monterey County, a non-profit group focused on promoting land use legislation. "Room Enough" is aimed at evaluating the entire county's capacity to meet its projected housing need while converting as little farmland and open space as possible. Although the predominant trend has been that cities and counties studies for only their own jurisdictions, a few councils of government (COGs) have begun processes that are regional in scope. Recognizing that growth patterns often have little regard for county lines, the Sacramento Area Council of Governments (SACOG) has initiated the Sacramento Region Blueprint, which looks at growth in Sacramento, Placer, El Dorado, Yuba, Sutter and Yolo counties. This effort to provide background support and visioning for regional growth for the next 50 years weaves together the planning fabric of many cities and counties. While a vacant land inventory or capacity study is usually informative in its own right, the choices for future growth come into perspective when compared with projected demand. San Jose looks at past rates of land absorption, from which one can make assumptions, but provides no projections for demand. The Contra Costa housing element update sets its framework by evaluating its supply against the Bay Area regional housing needs assessment, as does the Vacaville report. The "Room Enough" report uses Association of Monterey Bay Area Government population projections for 2020 to predict growth in the region. The Sacramento Region Blueprint also bases demand on modeling scenarios. One of the biggest keys to a successful study is in how it plays into the larger planning process. For instance, the Contra Costa and Sacramento housing element updates are part of general plan processes, so the studies' results feed directly into shaping the general plan. They are straightforward reports that play straightforward roles. "Room Enough" was designed to provide background data and support a smart growth approach to Monterey County's general plan update. "Vacaville At A Crossroads" is part of a campaign to influence Vacaville's visioning process and to change the city's general plan. The Greenbelt Alliance recently published similar reports, including "Contra Costa County: Smart Growth or Sprawl," which is designed to build support for smart growth and open space protection in Contra Costa County. The Sacramento Region Blueprint prepared by SACOG is much broader in scope and encompasses many aspects of the planning process, from public outreach to informing decision-makers. The San Diego Association of Governments is also embarking on a regional comprehensive plan aimed at, among other things, integrating the region's approach to land use and housing for the future. These are two examples of large-scale regional programs designed to understand effective use of a region's land supply.

A proposal from residents of northern Santa Barbara County to divide the county in two is making progress. An election on the creation of Mission County could occur as early as fall of 2004, although voting in 2006 appears more likely. Different approaches to land use — the north is seen as much more amenable to development than the south — lie at or very near the heart of the movement. But development is by no means the only issue. The two areas are different in many ways. The south county in and around Santa Barbara is seen as cosmopolitan, touristy, artsy and politically liberal. The north county, which includes the cities of Santa Maria and Lompoc, the unincorporated community of Orcutt and Vandenburg Air Force, is agrarian, working-class and politically conservative. Essentially, Santa Barbara is the northernmost extension of L.A., while Santa Maria is the southern end of a long rural stretch that extends north through San Luis Obispo County and into the Salinas Valley. For decades, residents of northern Santa Barbara County have chafed at being on the short end of a Board of Supervisors that is geographically and politically split 3-2. As reporter Michael Todd wrote last year, residents of the north "say they cannot till their fields, trim their trees or mine rocks off the hillsides because of Santa Barbara County's objections. Their votes are diluted by transient college kids, while do-gooders and bureaucrats want to set the wages they pay, their automobiles suffer on crumbling roads while environmentalists bay for bikes and buses, and at the end of the day they cannot even be proud of the local Boy Scouts anymore." While political differences run hot, organizers of the pro-secession Citizens for County Organization (CFCO) are trying to remain as cool as possible. "Our group has really tried to stay away from the passionate, partisan issues here," said Jim Diani, CFCO chairman and a Santa Maria-based developer. "We just say we're different, and it's OK for us to be different." The more disinterested approach is something that secession backers learned from a failed 1978 attempt to split Santa Barbara County. "It was strictly an emotional thing then," said Harrell Fletcher, the leader of the 1978 movement and at the time a county supervisor from Santa Maria. "It wasn't given the thought that we have given it now." Santa Barbara County leaders are not actively campaigning against the secession — at least not yet. "We're waiting to see if the proponents get the signatures," County Administrator Michael Brown said. Brown contended that there are ways other than divorce to resolve the differences. He tried, but failed, to convince secession proponents of the value of an independent study outside of the formal secession process. A big concern of Brown and secession skeptics is that once secession qualifies for the ballot, there is no turning back. By law, the question must go to the voters, whether or not a commission appointed by the governor can figure out finance, service and governance issues raised by the split. There is no role for the Local Agency Formation Commission, which would normally address government organization. The state Legislature in 1974 eased the laws concerning county formation. The process is this: Proponents have six months to gather signatures from 25% of registered voters in the proposed new county. Once the county clerk validates the petitions and the Board of Supervisors certifies it, the governor has 120 days to appoint a county formation commission composed of two residents of the proposed county, two from the existing county and one person from outside the county. The commission then has 180 days — plus a possible 180-day extension — to research the issues, conduct public hearings and spell out terms for the split. An election follows the commission's work. If voters approve the split, county supervisors and a county seat are chosen in a subsequent election. The only recourse for settling differences that arise during the process is the courts. Since 1974, there have been eight attempts to create new counties, most recently a 1988 vote to carve a proposed Mojave County out of San Bernardino County. All eight attempts have failed to win the required majority vote in both the proposed county and in the entire existing county. The worst ballot-box defeat was for proponents of the 1978 Santa Barbara County split, which received only 22% support countywide in an election that also included Proposition 13. The earlier Santa Barbara County movement, as well as the proposed secession in San Bernardino County and efforts in El Dorado and Fresno counties, was driven by rural residents and landowners who wanted to avoid the county's land use and building regulations, and a perceived urban dominance, said Peter Detwiler, consultant to the Senate Local Government Committee. In a 1996 report on municipal secessions, Detwiler wrote, "With county finances in horrible shape and with dim prospects for immediate improvement, it's hard to imagine why anyone would want to create a new county." Not much has changed since then, Detwiler said recently. The proposed split comes at a time when the balance of power in Santa Barbara County appears to be changing. Population is now evenly divided. With the north growing faster than the south, the north could take command of the Board of Supervisors soon. But Diani, of the pro-secession movement, said a 3-2 split is not healthy, no matter who has the three votes. "It's counterproductive," Diani said. "Why can't we just shake hands and you go your way, and we'll go ours? Right now, there don't seem to be many compromises." And Diani dismissed the idea of expanding the Santa Maria city limits greatly and incorporating the community of Orcutt. That would get secession proponents "only part-way" because the county government would still control some things. During the 1978 election, Santa Maria was a pro-secession stronghold. Since then, some city elected officials have continued to advocate for a split, but current Mayor Larry Lavagnino said he is undecided. The city gets along fine with the county, he said. But Lavagnino does not deny the differences between north and south. The Santa Barbara area is full of rich people and service workers, while Santa Maria has a broader demographic base that includes a sizeable middle class, the mayor contended. Furthermore, said Lavagnino, "We don't view growth as a bogeyman." Local attitudes toward growth are pivotal, said former county supervisor Fletcher, now a development consultant. He noted that the county grand jury nearly every year for a decade has criticized the county Planning Department for its slow and expensive processing of development applications. "Land use is probably the biggest thing that we think would be different in a new county," Fletcher said. But secession skeptics and opponents say the county's deliberate planning process reflects a citizenry that demands extensive scrutiny and public review of proposed development. Plus, there is no guarantee development would get the green light in Mission County because the California Environmental Quality Act, state and federal endangered species laws, the Clean Water Act and other perceived obstacles to growth would still apply. Then there is the question of whether a new county would be fiscally viable. Currently, the south pulls in about 95% of the county's hotel bed tax receipts, nearly 80% of the county's sales tax revenue and 64% of property taxes, according to a series on the split by the . Yet the north county generates four-fifths of the social service caseload. And, of course, the new county would need new public facilities, including a jail and juvenile hall. Brown, the CAO, told the Board of Supervisors in May that the process alone would cost the county from $659,000 to $836,000, not including elections or staff time spent assisting the county formation commission. Brown's report also included page after page of questions about how assets, liabilities, services and responsibilities would be divided. County officials have not come right out and said that the south currently subsidizes the north, but the implications are there and Diani does not like them. "They are not being as constructive as they should be," Diani said. "They are putting out information that is speculative at best. They don't have any better information than we have. … We need the study. If it doesn't work economically, it's probably not a good idea." Secession backers say that an independent poll found substantial support for their effort. Still, taxpayer groups and business owners appear divided themselves. With the proposed boundary, the Santa Barbara wine country — largely in the Santa Ynez Valley — would end up in Mission County. Vintners who have worked as hard to cultivate the Santa Barbara wine appellation as they have high-quality grapes may oppose secession because they do not want to lose their brand name. The same goes for Santa Barbara tourism boosters, who often include the wine country, the Dutch-themed town of Solvang, and the renowned wildflower fields around Lompoc in their pitches. The boundary line itself appears to have generated little controversy except for the inclusion of Lake Cachuma, which supplies water to Santa Barbara and surrounding communities, in Mission County. The lake supplies no water to the north county but does serve as flood control for Buellton, Solvang and Lompoc. Otherwise, the line is a natural, giving Mission County the agricultural areas north and east of the mountains that frame Santa Barbara and the Gaviota coast. Secession proponents have until September 30 to submit petitions signed by 20,779 registered voters. An exact election date is uncertain. Contacts: Jim Diani, Citizens for County Organization, (805) 925-9533. Harrell Fletcher, former Santa Barbara County supervisor, (805) 928-6463. Michael Brown, Santa Barbara County administrator, (805) 568-3400. Larry Lavagnino, Santa Maria mayor, (805) 925-0951. Peter Detwiler, Senate Local Government Committee, (916) 445-9748. Citizens for County Organization website: www.cfcostudy.com Santa Barbara News-Press series: Can This County Be Saved?