A state appellate court ruling that the loss of farmland resulting from development of a prison could not be mitigated has been depublished by the sate Supreme Court. In , the Fifth District Court of Appeal rejected prison opponents' contention that the state should have analyzed an agricultural easement on farmland in the vicinity as a means of mitigating the loss of more than 2,000 acres of farmland due to prison construction and other projects. The court appeared to rule that easements could not be considered mitigation for the loss of agricultural land, leaving local governments with the choice of no project or no mitigation (see , January 2004). Many farming and environmental groups asked the Supreme Court to depublish the decision because the use of easements has become a fairly common mitigation measure. The state high court's decision to depublish the opinion means it cannot be cited as a precedent in other litigation. But the Fifth District's ruling in the case remains in place.

In a ruling directly at odds with a landmark 1995 decision, the Sixth District Court of Appeal has ruled that local government may not regulate the location of timber harvests. The Sixth District disagreed with the decision in , 31 Cal.App.4th 418 (see , March 1998, February 1995), in which the First District Court of Appeal differentiated between the and the of timber operations. In the new case, also involving Big Creek Lumber Company, the Sixth District ruled that there was no difference between conduct and location. Because there is no difference, and because the Forest Practices Act (FPA) prohibits local governments from regulating the conduct of timber operations, local government may not regulate the location of timber harvests, the court ruled. "Local measures that forbid logging in certain locations ‘regulate the conduct of timber operations’ in those places in the most fundamental way imaginable — by prohibiting them outright," Justice William Wunderlich wrote for the unanimous three-judge panel. "Carried to its logical conclusion, the reasoning in allows individual counties to completely circumvent the FPA by the simple expedient of enacting zoning measures that prevent logging altogether." In , the First District upheld a county ordinance requiring a 1,000-foot buffer between timber harvest operations and a residence. During the late 1990s, Santa Cruz County sought to restrict logging because of complaints from residents in forested, rural areas (see , January 1999). Bolstered by the decision in , the county adopted three ordinances and a resolution that, among other things, established setbacks from riparian corridors, restricted the removal of timber by helicopters, prohibited timber harvesting outside certain zoning districts and imposed additional restrictions on proposals to rezone land to "timber production zone." The county treated some of the regulations as amendments to its general plan and local coastal plan (LCP). The Coastal Commission approved the local coastal plan amendments (the commission decides on all LCP amendments) and further required the county to treat all rezonings to TPZ as LCP amendments. Big Creek Lumber and the Central Coast Forest Association sued Santa Cruz County and the Coastal Commission. The loggers contended the new regulations were preempted by the FPA (Public Resources Code § 4511 et seq.), the Timberland Productivity Act (TPA) (Government Code § 51100 et seq.), the Coastal Act (Public Resources Code § 30000 et seq.) and state planning and zoning law (Government Code § 65000 et seq.). Santa Cruz County Superior Court Judge Robert Yonts Jr. found that most of the regulations were preempted by state law but upheld the restriction banning timber harvesting from all but the specified zoning districts. Both sides appealed. The Sixth District found that the FPA superseded the local ordinances and resolution in their entirety. On appeal, the county relied heavily on — a strategy that failed when the Sixth District rejected that opinion. One county ordinance and the resolution limited timber harvesting to lands zoned "timber production," "mineral extraction industrial" or, outside the coastal zone, "parks, recreation and open space." This appeared to be the sort of location regulation specifically permitted by . But the Sixth District found that the TPA "severely circumscribes local zoning authority with respect to timberlands." " ore fundamentally, we question the differentiation between and timber operations take place in interpreting the statutory phrase ‘conduct of timber operations,’" Justice Wunderlich wrote, citing Public Resources Code § 4615.5, subdivision (d). "Given both the language and the intent of the statute, we construe the statutory phrase ‘conduct of timber operations’ to encompass the location of those activities as well as the manner of carrying them out." The court gave similar treatment to the ordinances prescribing riparian setbacks and restricting helicopter logging, finding that the local ordinances were in conflict with the FPA. The court noted that with regard to helicopter logging, the Board of Forestry had even adopted helicopter logging regulations under the FPA that were specific to Santa Cruz County. As for the Coastal Commission requirement that rezoning to timber production zone be treated as an LCP amendment, the Sixth District noted that the trial court invalidated the county’s resolution and ordinance — not the Commission’s decision. Besides, the Sixth District held, the Commission cannot require the county to exercise authority it does not have, and under the TPA, the county must grant requests to rezone land to TPZ if the parcels meet the statutory criteria. (The TPZ designation gives a property owner tax breaks in exchange for not developing the site in a way that conflicts with timber production.) The Coastal Commission argued that removing its discretion over TPZ applications prevented the Commission from carrying out the Coastal Act’s mandate. The Sixth District disagreed, finding that both laws protect the productivity of timberlands. "Significantly, the TPA contains no exception from its provision for lands within the coastal zone. The Coastal Act, on the other hand, expressly addresses timberlands in several provisions. For one thing, it specifically includes the protection of timberlands as one of its Chapter 3 policies. For another thing, the Act’s definition of development excludes timber operations conducted under a State Forestry Board timber harvest plan," Wunderlich wrote. The court also rejected the contention that the Coastal Act required the processing of rezoning applications as LCP amendments. The Coastal Act speaks to changes of land use, and "the act of zoning timberland for timberland production does not change its use," the court ruled. The county has asked the state Supreme Court to accept the case, which appears somewhat likely because the decision directly conflicts with the published opinion of a different appellate court district. The Case: , No. H023778, 04 C.D.O.S. 1365, 2004 DJDAR 2006. Filed February 17, 2004. The Lawyers: For Big Creek: Craig Stewart, Jones Day, (415) 626-3939. For Central Coast Forest Association: Robert Bosso, Bosso, Williams, Sachs, Atack & Gallagher, (831) 426-8484, For the county: Dana McRae, county counsel, (831) 454-2040. For the Coastal Commission: Tara Mueller, deputy attorney general, (510) 622-2136.

A wireless telecommunications service provider may seek damages under the federal Civil Rights Act because a city improperly denied the provider a conditional use permit, according to the Ninth U.S. Circuit Court of Appeals. The decision came in a long-running dispute between a homeowner and the City of Rancho Palos Verdes. In about 1990, Mark Abrams erected a 52-foot radio antenna on his property, near the peak of the Palos Verdes Peninsula. Over the years, he apparently installed a second antenna and placed two portable models in his yard. Abrams is a ham radio operator and also runs a for-profit wireless transmission service. In 1999, the city and state sued Abrams to bar him from using the antennas for commercial purposes. Three years later, California’s Second District Court of Appeal ruled that the city could not deny Abrams’s application for a conditional use permit based solely on the commercial nature of the antennas ( , 101 Cal.App.4th 367; see , October 2002). While the state court litigation was proceeding, Abrams sued the city in federal court under the Telecommunications Act of 1996 (TCA). He argued that the city violated his rights under the act and, because of the violation, he was eligible for damages under the Civil Rights Act (42 U.S.C. §1983). District Court Judge Stephen Wilson ruled that the city had violated Abrams’s rights under the TCA, but Wilson ruled that Abrams could not received § 1983 damages because the Telecommunications Act contained its own remedies. Abrams appealed, and a unanimous three-judge panel of the Ninth Circuit reversed the lower court. Damages for violations of federal rights are available under § 1983 unless Congress forecloses the opportunity by establishing other remedies, according to the Ninth Circuit. With the Telecommunications Act, Congress established a short statute of limitations (30 days), required expedited judicial review and permitted a plaintiff to file a lawsuit "in any court of competent jurisdiction." These measures are not remedies but are, instead, procedural rights, the Ninth Circuit held. "The procedural provisions are insufficient for us to conclude that the TCA contains a comprehensive remedial scheme that closes the door on § 1983 liability," Judge Thomas Nelson wrote for the court. The court noted that the Third Circuit reached the opposite conclusion in , 286 F.3d 687 (3d Cir. 2002). What the Ninth Circuit considered a "procedural" scheme, the Third Circuit called a comprehensive remedial scheme that foreclosed § 1983 damages. But the Ninth Circuit called the Third Circuit’s reasoning "flawed" and re-emphasized the procedural nature of the Telecommunications Act’s remedies. The Ninth Circuit sent the case back to district court to determine the amount of damages to which Abrams is entitled. The Case: , No. 0255681, 04 C.D.O.S. 353, 2004 DJDAR 496. Filed January 15, 2004. The Lawyers: For Abrams: Wilkie Cheong, Cheong, Denove, Rowell & Bennett, (310) 277-4857. For the city: Carol Lynch, Richards, Watson & Gershon, (213) 626-8484.

In a unanimous opinion, the state Supreme Court has ruled that a community service district’s water connection charge and fire suppression charge are exempt from the restrictions of Proposition 218. The ruling was only the state high court’s second in a Proposition 218 case, and in both instances, the court ruled for local government. The court held that the Shasta Community Service District’s connection charge was neither a "fee" nor a "charge" within the meaning of Proposition 218 (article XIII D of the state constitution) and thus was not subject to the initiative’s majority-protest provisions. "A connection fee is not imposed simply by virtue of property ownership, but instead it is imposed as an incident of the voluntary act of the property owner in applying for a service, connection," Justice Joyce Kennard wrote for the court. Attorney Michael Colantuono, who argued the case for Shasta CSD at the high court, said the decision "provides clear guidance for local governments that utility connection and capacity charges needed to fund services to new development are not subject to voter or property owner approval." Attorney William Ross, who filed an amicus brief for the California Fire Chiefs Association, said the decision "widens the possibility of revenue streams for local government." However, both Colantuono and Ross warned that the case had enough unique facts that the decision was probably not a major precedent for controversies involving Proposition 218 or development impact fees. In fact, the high court ruled that the connection charge was not a development fee, a conclusion with which Colantuono differed. State voters approved Proposition 218 — the Right to Vote on Taxes Act — in 1996. Proponents said it was needed to close loopholes that local governments had opened in Proposition 13. Under Proposition 218, a fee for general government services requires two-thirds voter approval. Additionally, an assessment levied for the benefit of certain pieces of property is subject to a majority-protest process, in which the owners who would pay the majority of the total assessment amount can kill the assessment. Shasta CSD operates a water system and volunteer fire department in the unincorporated community of Shasta, just west of Redding. In 1994, the district adopted an ordinance establishing a "standard connection fee" of $2,000, plus the cost of a water meter. The amount included a capacity charge to fund future improvements to the water system and a fire suppression charge to fund fire department equipment. In 1997, the district hiked the capacity charge to $3,176 and continued collecting the $400 fire suppression charge. The $3,176 was based on the estimated cost of future improvements assigned to new development ($762,300) divided by the estimated number of future connections (240). In March 1998, four property owners filed a lawsuit contesting the fees on three key grounds: The district failed to follow Proposition 218’s requirements for levying an assessment, the fire suppression fee was an illegal fee for general government services under Proposition 218, and the district could not use a resolution to amend the 1994 ordinance. After an eight-day trial, Shasta County Superior Court Judge Richard McEachen ruled for the district, concluding that the connection fee was a "development fee" and therefore was exempt from Proposition 218. He also ruled that the fire suppression charge was exempt from Proposition 218 because it was only the continuation of a charge that existed before the initiative was passed. Finally, he ruled that the district’s use of a resolution was legal. The Third District Court of Appeal upheld the lower court except with regard to the fire suppression charge, which the court said was illegal under Proposition 218 because voters had not approved the charge (see , April 2002). The decision seemed to satisfy neither side. The case then went to the state Supreme Court, which affirmed the trial court decision. However, the Supreme Court specifically ruled that the connection charge was not a "development fee" because a new water connection was not necessarily related property development. Citing language in Proposition 218, the Supreme Court determined that the initiative requires an agency imposing an assessment to identify "all parcels which will have a special benefit conferred upon them and upon which an assessment will be imposed." Shasta CSD, however, "estimated that there would be 240 new connection applications, but the district did not and could not identify the specific parcels for which new connection applications would be made … because many existing undeveloped parcels would likely be subdivided into an indeterminable number of smaller parcels," Kennard wrote. Therefore, the agency could not comply with Proposition 218’s requirement. "Because the District does not impose the capacity charge on identifiable parcels, but only on individuals who request a new service connection, the capacity charge is not an assessment within the meaning of article XIII D," Kennard wrote. But neither was the capacity charge a development fee, the court continued. "It is similar to a development fee in being imposed only in response to a property owner’s voluntary application to a public entity, but it is different in that the application may be only for a water service connection without necessarily involving any development of the property," Kennard wrote. The fire suppression charge was intended to provide money for firefighting and emergency response equipment. Several analysts have questioned whether the charge was legal under Proposition 13, which prohibits taxes for general government services without two-thirds voter approval. But the Shasta CSD property owners did not make a Proposition 13 argument. Instead, they contended that the charge was illegal under Proposition 218 because it was never approved by voters — an argument accepted by the Court of Appeal. The Supreme Court disagreed. For the charge to be illegal under Proposition 218, it must be assessed "as an incident of property ownership." That was not the case here, the court ruled. "The district does not impose the fee on parcels of real property but on persons who apply for a water service connection," Kennard wrote. " e agree that water service fees, being fees for property-related services, may be fees or charges within the meaning of article XIII D," Kennard continued. "But we do not agree that all water service charges are necessarily subject to the restrictions that article XIII D imposes on fees and charges. Rather, we conclude that a water service fee is a fee or charge under article XIII D if, but only if, it is imposed ‘upon a person as incident of property ownership.’ A fee for ongoing water service through an existing connection is imposed ‘as an incident of property ownership’ because it requires nothing other than normal ownership and use of property. But a fee for making a new connection to the system is not imposed ‘as an incident of property ownership’ because it results from the owner’s voluntary decision to apply for the connection." Shasta CSD attorney Colantuono expressed concern over Kennard’s indication that water service charges are subject to Proposition 218. He expects taxpayer advocates will use the opinion to contest routine service charges. But Colantuono further contended that Kennard’s statement was dicta — meaning it was not essential to deciding the case — and that such an interpretation of Proposition 218 conflicted with existing case law. The court further ruled that the district could modify its fees by resolution. The state high court’s only other Proposition 218 ruling came in , 24 Cal.4th 830 (2001) (see , February 2001), in which the court ruled that an annual apartment inspection fee to fund slum abatement was not subject to the initiative. The Case: , No. S105078, 04 C.D.O.S. 1146, 2004 DJDAR 1429. Filed February 9, 2004 The Lawyers: For Richmond: Walter McNeill, (530) 222-8892. For Shasta CSD: David Edwards, (530) 221-0694, and Michael Colantuono, Colantuono, Levin and Rozell, (213) 533-4155.

The long-running Santa Clarita Valley growth war has entered a new phase. The Newhall County Water District (NCWD), which serves territory inside the Santa Clarita city limits and in unincorporated Los Angeles County, has issued a no-confidence vote for the valley’s urban water management plan. Three members of the five-member NCWD board say the plan relies on water from the State Water Project that is unlikely to materialize, tainted groundwater, and "banked" groundwater that is uncertain. "There is not sufficient current supply of water to meet all current and future demands, especially in times of drought or other emergency," states a resolution that NCWD directors adopted on January 29. The response has been swift. The Santa Clarita City Council and area school boards adopted resolutions opposing the NCWD stance. The Castaic Lake Water Agency, which prepared the plan, is standing by the document. Developers are rushing to get water service contracts from NCWD before more-restrictive policies take effect. "Many of us who are water activists have for years said Castaic is overstating the amount of water available from the State Water Project," said NCWD Board President Lynne Plambeck. "We don’t have enough water for all of this development." But Santa Clarita Mayor Pro-Tem Cameron Smyth said NCWD tried to sneak through a new water policy with little public input. "It’s pretty clear that the action by the majority on the water district board is primarily political in nature," Smyth said. "It’s an attempt to use water to control growth." Between 2,000 to 3,000 new housing units go up annually in the Santa Clarita Valley, which straddles Interstate 5 just north of Los Angeles. Millions of square feet of office, retail and industrial space has been built while the valley evolved into an employment center during recent years. Despite the development-friendly attitudes of both the city and county, growth battles have been intense and often have involved the Santa Clarita Organization for Planning and the Environment (SCOPE). NCWD’s Plambeck is the longtime leader of SCOPE. Plambeck, who intends to run for Los Angeles County supervisor, has been a member of the water board since 1995, but until the November 2003 elections, she was in the minority. Now she controls a 3-2 majority. State law requires all but the smallest urban water suppliers to prepare urban water management plans every five years. In 2000, the Castaic Lake Water Agency adopted the water plan for its 192-square-mile service area in the Santa Clarita Valley. Castaic is a water wholesaler, while NCWA and the private Santa Clarita Water Company and Valencia Water Company provide retail service. Los Angeles County Waterworks District 36 also serves lightly developed, unincorporated areas within Castaic’s boundaries. All retailers except District 36 augment the water imported by Castaic with their own groundwater sources. Castaic and the retailers participated in preparing the 2000 plan and adopted the document. Only Plambeck and one Castaic board member voted against the plan. The plan says existing and planned supplies amount to between 103,000 and 181,000 acre-feet of water during normal years. Usage is expected to grow from roughly 80,000 to 100,000 acre-feet annually by 2020. About half of the supply would come from the State Water Project, with local groundwater accounting for most of the rest. The plan says that even more water — as much as 280,000 acre-feet — would be available during dry years because Castaic could tap banked groundwater, and new wells could draw more local groundwater. The Department of Water Resources accepted the Castaic plan. Most people have concluded that the state law is easy to comply with, and DWR has never rejected an urban water management plan, said Randy Kanouse, an East Bay Municipal Utility District lobbyist who helped draft recent water planning laws. Still, Plambeck and growth opponents contend Castaic’s numbers are bogus. Perchlorate left over from heavy manufacturing has forced the closure of several supply wells, and no one has fully identified the pollution’s scope, she said. Thus, the plan should ratchet down the amount of available groundwater. Additionally, Plambeck said the plan should reduce the amount of SWP available by about half. Courts have accepted an estimation that the SWP can supply at least 50% of requested water in eight years out of ten. Other supplies and strategies identified in the plan — water banking, water transfers, desalination and large-scale water recycling — are too speculative, she said. Gordon LaBedz, conservation chairman of the Southern California Sierra Club, said NCWD is right to question Castaic’s figures. That agency should worry more about serving existing homeowners, LaBedz said. "These guys are saying they have lots and lots of water, and it’s a lie," he said. "They are counting polluted water as potable water." Castaic officials counter that the urban water management plan survived a lawsuit filed by Ventura County and Friends of the Santa Clara River. The suit is on appeal, but the county dropped out. The NCWD resolution contains "serious errors and omissions," said Mary Lou Cotton, Castaic water resources manager. Technology exists to treat water tainted by perchlorate, and all valley purveyors plan to implement treatment, according to Castaic officials. As for SWP water, the long-term average of deliveries is 76% of entitlements — far more than NCWD counted, Castaic says. The agency is already banking wet-year water in the San Joaquin Valley and building recycled water delivery systems. The sides have fought similar battles in the courtroom over specific projects. Most recently, a Kern County Superior Court judge found that Newhall Ranch — a 21,000-unit proposal — had enough water to proceed, but only after earlier rounds of the litigation forced the developer to procure new supplies and rewrite an EIR. Last year, an appeals court rejected an EIR for a different 2,500-unit project, saying that the development relied on uncertain SWP water. Since passage of the NCWD resolution, developer Dale Donohoe, president of Intertex Companies, has finagled a NCWD water connection agreement for a small commercial project, but he finds a larger project in limbo. "I’ve got a $6 million land purchase. We’re supposed to close escrow right now, but we need an extension," said Donohoe, who still needs a guarantee of water service for the property. "It puts everybody in an awkward position," Donohoe said of the NCWD stance. "It’s very hard to do any kind of planning when you have this hanging over your head." Mayor Pro Tem Smyth said NCWD could block redevelopment of old Newhall, a planned community center, and new schools. Numerous school districts oppose the NCWD resolution, in part because the districts count on development fees. Plambeck disputed all of those charges. Urban water management plans must be updated during 2005. Plambeck said NCWD might prepare its own plan rather than join a valley-wide water effort, which Castaic officials say would be a mistake. Contacts: Lynne Plambeck, Newhall County Water District, (661) 259-3610. Cameron Smyth, City of Santa Clarita, (661) 255-4313. Mary Lou Cotton, Castaic Lake Water Agency, (661) 297-1600. Dale Donohoe, Intertex Companies, (661) 295-8215. Newhall County Water District: www.ncwd.org Castaic Lake Water Agency: www.clwa.org

An appellate court has ruled against homeowners who sought to prevent Santa Monica City Council members from making inquiries of staff members other than the city manager. "An injunction to prevent such communication violates the First Amendment. The First Amendment protects everyone, even politicians," Justice Arthur Gilbert wrote for the unanimous three-judge panel of the Second District, Division Six. The lawsuit stemmed from a resident’s complaint about a neighbor’s playhouse. David and Beth Levy built a 13-foot-tall, 100-square-foot playhouse for their four-year-old son. After neighbor Tunde Garai complained about the playhouse, a city building inspector told the Levys to remodel the structure and locate it at least five feet from the rear lot line. The Levy’s reworked the playhouse, and a different building inspector then told them the structure complied with city regulations. Garai continued to complain to the building department and to then-Mayor Ken Genser (now a councilman). In March 2000, Genser sent an email to Community Development Director Suzanne Frick asking her to investigate Garai’s complaint. Three weeks later, Genser sent Frick another email, checking on the status of Garai’s complaint and suggesting that a 15-foot setback — not a 5-foot setback — was required. The Santa Monica City Charter states: "Except for the purpose of inquiry, the City Council and its members shall deal with the administrative service under the city manager solely through the city manager and neither the City Council nor any member shall give orders to any subordinates of the city manager, either publicly or privately." Frick testified that she treated Genser’s emails as citizen complaints, not orders. In August 2000, the first building inspector sent the Levys a "notice of violation" and directed them to remove the playhouse or move it 15 feet from the property line. On advice of the city attorney, the city apparently dropped the enforcement action, but the Levys sued the city and Genser anyway. They sought a declaratory judgment that the playhouse was a conforming structure, a permanent injunction to preclude city council members from engaging in acts designed to influence administrative staff members, and damages for violation of their due process rights. The city countered that the Levys’ suit was a strategic lawsuit against public participation (SLAPP) that sought to chill a person’s right to petition and free speech. The city further argued that most of the Levys’ contentions were moot because the city rescinded the notice of violation. Los Angeles County Superior Court Judge Cesar Sarmiento ruled the lawsuit was not a SLAPP and, besides, the Levys had demonstrated a "probability of success." The city appealed that ruling, and the Second District overturned the lower court. The appellate panel determined that the Levys’ lawsuit was, indeed, a SLAPP. "Garai’s act of contacting her representative and Genser’s act of contacting planning staff are petitions for grievances against the government protected by the First Amendment," Justice Gilbert wrote. The injunction sought by the Levys would be "an overly broad restraint on speech which would inhibit constitutionally protected activity," the court ruled. "Under the First Amendment, legislators are ‘given the widest latitude to express their views’ and there are no ‘stricter free speech standards on than on the general public,’" Gilbert wrote, citing , (1979) 89 Cal.App.3d 76, 80. The city charter "defines the lines of authority within city government," but it does not prohibit protected speech, the court held. The appellate court further ruled that the Levys’ arguments about the status of the playhouse and due process violations were moot because the city had rescinded the enforcement action. The Case: , No. 15758, 04 C.D.O.S. 452, 2004 DJDAR 588. Filed January 20, 2004. The Lawyers: For Levy: Christopher Harding, Harding, Larmore, Kutcher & Kozal, (310) 451-2968. For the city: Cara Silver, deputy city attorney, (310) 458-8336.

Land use in our society is generally an "either-or" proposition. Any given site is zoned for industry or housing or open space, but rarely more than one use at a time. And we compartmentalize one land use from another by drawing thick black lines on our land-use maps, often in a completely arbitrary way. That thick black line has grown a little thinner on 471 acres of land, nearly half of which lie underwater, owned by Dow Chemical in the city of Pittsburg. In this waterfront spot of Contra Costa County, Dow undertook the creation of a nature preserve with several types of habitat, including 170 acres of tidal wetlands, on land that previously had been used as an illegal dumping site. Nowadays, the Dow preserve is not only a functional wildlife habitat, but it is also an outdoor classroom for middle and high school students who arrive by the busload to pull weeds and plant oak acorns. The general public is even allowed access to the site on certain days, which has effectively changed the former dump into public open space. The cost of this large-scale remediation project: a lot of time and sweat, but almost no cash. Dow bought the land in 1989 to serve as a buffer between the community and Dow’s Pittsburg plant, which makes pesticides and anti-bacterial agents. The buffer had been farmland that flooded in 1989, after a barge breached a levy, and saltwater from the Delta. For several years, Pittsburg officials had contemplated a housing and retail complex on the site. After Dow bought the site, however, the corporation joined the Wildlife Habitat Council, a non-profit group in Baltimore, Maryland, that encourages the restoration of habitat on corporate lands. Through the council’s Corporate Lands for Learning program, the council has "certified" nearly 400 corporate efforts to restore degraded lands. Among the first people to get involved were about 30 Dow employees and ex-employees who volunteered their time and labor to remove garbage from the site. Another early volunteer was Steve Andrews, coordinator of the University of California, Berkeley, Environmental Teaching Program, which has an outreach program to educate school children on the local level. Dow itself contributed about $10,000 in incidental costs. Andrews described the "core" group of Dow volunteers "as a bunch of "high-powered folks," some current employees and others Dow retirees who lent their efforts and what he called their "Type-A personalities" to the project. "They are out there every Friday, some 80 years old, working this ground, putting in acorns, laying PVC pipe (for irrigation), pulling weeds, planting oak trees and pine trees and wildflowers," Andrews said. One of the first steps was to remove 13 car bodies that lay abandoned in the marshy meadows. One of the most difficult on-going problems is the removal of invasive plants, particularly the water hyacinth, which tends to cover and choke off waterways, as well as attract heavy metals, particularly mercury. When Andrews and the Dow volunteers first arrived, the hyacinths were overgrown and flourishing. Some plants stood five feet tall. The removal method requires attaching a shredding mechanism to a boat, and feeding the offending plants into the metal teeth of the shredder. Dow’s Pittsburg property has turned out to be a rich site for first-hand environmental studies, according to Andrews, because the meadows contain several distinct communities — tidal marsh, riparian fringe, bunch-grass savannah and upland habitat — and the transitional areas between them. "You should see how much the plant life has changed here in the past five years," he said. About 200 animal species live in the site, including coyote, beaver, fox, raccoon and skunk. As an educator, Andrews sees great value in what he calls the "trans-generational" nature of teaching students about wildlife habitats on the Dow property, because the students have direct contact with Dow retirees who are devoting much of their time to restoring the land. Andrews said, "It gives these kids an important message, that ‘I need to be caring, I need to be more actively involved in the land and the way it is being managed.’" What’s in the deal for Dow? Essentially, good public relations. The dedication of property for a wetlands preserve reflects the priority that Dow gives to education and environmental repair, said spokeswoman Sheryl Sturgis. School children are not the only ones who can learn from the Dow preserve. Planners, corporations and the tenants of business parks could all examine their attitudes. While few companies have 500 acres of fallow land lying around, many industrial and office parks have plentiful acreage of expansion space that could have habitat value. Rather than limiting the open space components of a business park to unbuildable hillsides or waterways, we could seek to integrate habitat and open space more intimately into commercial campuses. One possible approach is to restrict landscaping choices to native species and plan the corporate development around habitat trails, so that an entire business park could have some habitat value in the aggregate. Granted, this is a very large subject, but projects like the Dow preserve suggest that a more inclusive approach between commercial-industrial development and habitat restoration is feasible, and worth thinking about in a state that has destroyed much of its natural habitat within the last century and a half. Land can do more than one thing at a time. It can support both business and habitat. Maybe the time is approaching to rethink the notion of single-use planning.

Anyone familiar with the operation of state and federal water projects in California recognizes that the Sacramento-San Joaquin River Delta is the heart of the state's elaborate plumbing system. A recent federal court decision also places the Delta squarely at the heart of an intensifying debate over one of the nation's bedrock environmental laws, potentially throwing into question the protections afforded a host of threatened and endangered species throughout the water-short West. On the last day of 2003, Judge John Paul Wiese of the U.S. Court of Federal Claims in Washington, D.C., ordered the federal government to pay nearly $14 million, plus a decade's worth of accrued interest (which could bring the total to as much as $26 million), to five San Joaquin Valley water districts. The damage award stems from a case originally decided April 30, 2001, when Wiese ruled that the reduction of deliveries to State Water Project (SWP) contractors, a consequence of efforts to comply with Endangered Species Act (ESA) protections for Sacramento River winter-run chinook salmon and the delta smelt, constituted a taking of private property under the Fifth Amendment to the U.S. Constitution. The ruling, the first of its kind, was denounced by environmentalists, who regard it as a threat to enforcement of legal protections for threatened and endangered species. The purpose of such suits is "to bust the federal budget as the price tag for complying with environmental protection laws," Barry Nelson, a policy analyst with the Natural Resources Defense Council, told the Associated Press. The ruling won equally vocal praise from property-rights activists and ESA critics, who have long argued that private landowners and businesses bear a disproportionate share of the cost of such protections. "What the court found is that the government is certainly free to protect the fish under the Endangered Species Act but must pay for the water that it takes to do so," Roger Marzulla, the plaintiffs' attorney, told AP. If Wiese's ruling is allowed to stand (there's been no decision yet whether the federal government will appeal), it will have significant implications throughout California and the West, where competition over limited water supplies is intensifying. California's delta is the current legal epicenter, but the vibrations from may soon be felt anywhere that farmers and urban agencies have been forced to give up water to protect fish and wildlife. Marzulla, in fact, has filed a nearly identical suit in the Court of Federal Claims on behalf of farmers in the Klamath Basin, on the California-Oregon border, seeking $1 billion in compensation for a "taking" of water to protect endangered fish in the summer of 2001. The Delta case grew out of efforts to protect salmon during 1992 and both salmon and smelt during 1994. Both species live in the Delta, the smelt residing there for their entire life cycle and the chinooks passing through as juveniles on their way to the sea. The Delta is also the location of the main pumping plants for the SWP, operated by the California Department of Water Resources (DWR), and the Central Valley Project (CVP), operated by the U.S. Bureau of Reclamation. Biologists have long implicated the CVP and SWP pumping plants in the demise of fish. Salmon fry and smelt may be sucked into the pump intakes and dumped into aqueducts, or become so confused by the effect of water diversions on river flows and delta salinity that they lose their way and cannot complete their migrations. As a result of these and other factors, the winter-run chinook has been listed as endangered since 1990, and the smelt has been listed as threatened since 1993. In 1992, the National Marine Fisheries Service, which has jurisdiction over anadromous species such as salmon (which spend their lives in both fresh and salt water), issued a biological opinion asserting that a change in SWP and CVP operations was necessary under the ESA to protect the winter-run salmon during their migration. The suggested alternative was to close the gates on the Delta Cross Channel, a structure that allows Sacramento River water to be diverted into the south Delta. Closing the gates would allowing the vulnerable young fish to proceed unmolested into San Francisco Bay and the ocean instead of being shunted south toward the deadly pumps. Closing those gates, however, meant the CVP and SWP would have to curtail their diversions from the south Delta, because continuing to pump in the absence of an inflow from the Sacramento River would cause south Delta salinity to rise higher than allowed under permits issued by the State Water Resources Control Board. Accordingly, the CVP and SWP pumps shut down, interrupting deliveries to project contractors for part of 1992. The same thing happened two years later. The Tulare Lake Basin Water Storage District and the Kern County Water Agency, both of which have direct contracts with DWR for SWP water, and three entities that get SWP water through Tulare Lake and Kern County — Hansen Ranches, Lost Hills Water District and Wheeler Ridge-Maricopa Water Supply District — filed a claim seeking compensation for the SWP water they were denied. That the water districts sued the federal government over a state agency's failure to deliver water might seem odd. But the move turned out to be a smart legal strategy. Had the water districts sued the state, they likely would have lost because SWP contracts explicitly immunize the state from liability for "any damage, direct or indirect, arising from shortages in the amount of water to be made available to the agency under this contract caused by drought, operation of area of origin statutes, or any other causes beyond its control." By suing the federal government over violation of a state contract, the plaintiffs also avoided a pitfall that foiled a previous effort to claim Fifth Amendment compensation for water-delivery reductions. In 1995, CVP contractors lost a breach-of-contract suit they had filed against the federal government, seeking damages when their water deliveries were reduced to protect fish in the Sacramento River and Delta. The 9th Circuit Court of Appeals ruled in O'Neill v. United States 50 F.3rd 677, that CVP contracts immunize the federal government from such claims in the same way the SWP contracts protect the state. "In the present case," Judge Wiese wrote, "the federal government enjoys no such contractual immunity from liability." Contacts: United States Court of Federal Claims: www.uscfc.uscourts.gov/opinions.htm Roger Marzulla, attorney for the water agencies, (202) 822-6770. Natural Resources Defense Council, (212) 727-2700.

An appellate court has upheld an injunction prohibiting the City of Garden Grove from requiring existing cybercafes to get conditional use permits. However, the appellate court removed an injunction against city-imposed operating requirements at the cybercafes. The court lifted an injunction that had prohibited the city from enforcing regulations imposing a curfew on minors, and requiring adult employees, security guards on weekends and installation of video surveillance systems. The decision came in a 2-1 ruling with an extraordinarily sharp dissent. Cybercafes provide access to computers with broadband Internet access. Contending that the businesses attract gang members and spawn criminal activity, a number of Southern California cities have attempted to regulate cybercafes in recent years (see , June 2003; , September 2002). The Orange County city of Garden Grove has been in the center of the controversy over cybercafe regulation. During 2002, the Garden Grove City Council first passed an urgency interim ordinance imposing a moratorium on new cybercafes and operating restrictions on existing businesses. Later in the year, the council made the ordinance permanent and then modified the law. City officials pointed to police reports of more than a dozen incidents of criminal activity — including two murders — and a total of 289 calls to police associated with cybercafes in about 18 months. By the time the city adopted the final ordinance, 23 cybercafes were operating in Garden Grove. Five cybercafe owners sued the city to overturn the regulations, primarily on First Amendment grounds. In March 2003, Orange County Superior Court Judge Dennis Choate issued a preliminary injunction regarding the conditional use permit mandate and various operating conditions. The city, which settled with three of the business owners, appealed the injunction. The Fourth District Court of Appeal, Division Three, upheld part of the lower court’s decision. The city’s ordinance required an existing cybercafe to get a conditional use permit (CUP) by July 31, 2003. Business owners contended the ordinance gave city officials unlimited discretion to grant or deny permit applications. Treating cybercafes much like arcades, movie theaters adult cabarets — businesses that enjoy First Amendment protections — the Fourth District agreed with cybercafe owners and ruled an injunction was necessary. "As our California Supreme Court long ago concluded, ‘A long line of decisions has held unconstitutional ordinances governing the issuance of licenses to conduct First Amendment activities where administrative officials were granted excessive discretion in determining whether to grant or deny the license," Justice Raymond Ikola wrote, citing (1968) 68 Cal.2d 684, 691. "Under the ordinance, the zoning administrator has unfettered discretion in deciding what conditions to impose when issuing a CUP," Ikola wrote for the majority. "The city does not identify how or in what manner that discretion is limited, and without objective standards, the zoning administrator retains the power to require software filters restricting access to any designated website." "Subjecting plaintiffs to a facially unconstitutional requirement as a condition to the continued operation of their business is a far more serious consequence to plaintiffs than is the consequence to defendant of not being able to impose a new CUP requirement on existing businesses," Ikola wrote. The court then addressed operating restrictions that Judge Choate had prevented the city from enforcing. Those were: • A curfew on minors in cybercafes after 10 p.m., and between 8 a.m. and 3 p.m. on school days • A requirement that businesses have an employee at least 18 years old, and that businesses with more than 30 computers have at least two adult employees • A requirement that businesses have a uniformed security guard on duty from 8 p.m. until 2 a.m. on Friday and Saturday nights • A requirement that cybercafes operate a video surveillance system and maintain tapes for at least 72 hours. This is where the Fourth District panel divided. The two-justice majority struck down Choate’s injunction regarding the operating conditions, finding that all of them were narrowly tailored, content-neutral regulations that served a significant governmental interest. The court took pains to say that the video surveillance requirement was not an attempt to monitor what cybercafe patrons were doing with computers. " e are not persuaded the video surveillance system affects First Amendment activity any more than does the presence of an adult employee and/or security guard. … The ordinance requires only that the system be capable of showing ‘the activity and physical features of persons or areas within the premises,’" Ikola wrote. The court rejected the cybercafe owners’ argument that their patrons have a right to privacy protected by the state constitution. In a dissenting opinion, Presiding Justice David Sills said that the majority did not balance the interests of the two sides and that all of the lower court’s injunctions should be upheld. He noted that only five of Garden Grove’s cybercafes had experienced the serious troubles cited by police, and he chastised his colleagues for an "almost slavish deference to an unsupported and illogical conclusion of the city’s police chief and city council." "Rather than confront the fact that only a small minority of cybercafe venues have experienced problems, they illogically leap to the idea that there is a ‘well-demonstrated’ connection between cybercafes and gang-related violence. Sigh. They might as well say there is a ‘well-demonstrated’ connection between homes and residential burglary, or, in Garden Grove at least, between Vietnamese restaurants and gang-related violence," Sills continued. Sills was particularly offended by the video surveillance requirement. "Do my colleagues not realize the — there is no other word for it — Orwellian implications of their ruling today? They approve an ordinance which to look over one’s shoulder while accessing the Internet," Sills wrote. "Sorry, I can’t go along with this emasculation of our state Constitutional right to privacy and with the concomitant infringement on the rights of freedom of speech and press." The Case: , No. G032058, 04 C.D.O.S. 861, 2004 DJDAR 1043. Filed January 29, 2004. The Lawyers: For Vo: Ronald Talmo, (714) 543-1294. For the city: John Shaw and Lois Bobak, Woodruff, Spradlin & Smart, (714) 558-7000.

In his definitive book, , urban historian Richard Longstreth points out that in 1960, Southern California had 14 regional malls, located mostly in the southern L.A. County and northern Orange County suburbs that were emerging at the time. These malls were not exactly identical. A coming generation of teenagers would probe endlessly for the distinctions between Whittwood Center in Whittier, Stonewood Center in Downey, Lakewood Center in Lakewood, and Del Amo Center in Torrance. But, as Longstreth points out, they all had one thing in common: They were "large, fully integrated retail complexes, each oriented toward a pedestrian mall and conveying little semblance of a conventional urban retail district." Nearly a half-century has passed since this first generation of malls in southern L.A. and northern Orange counties were built. But they are no longer as similar as the teenagers of the ‘60s remember them as being. Del Amo Fashion Center is the largest mall in the West, a vast suburban retail kudzu sprawling across streets and arterials throughout Torrance. Lakewood Center and Stonewood Center are standard-issue four-anchor regional malls owned by Macerich Company. But Whittwood Center is a different story. Now owned by Lennar Partners, Whittwood still has the standard anchor tenants – JC Penney, Sears, Mervyn's, and Target. But Whittwood worked with developer Stephen Hopkins to create a "town center" feel and add 150 townhomes to the mix. The renderings of Whittwood Town Center may seem a little like Southern California kitsch – rows of palm trees and a grid system layered on top of the old anchor-tenant footprint – but it is definitely not Del Amo Fashion Center. In a way, Whittwood Town Center is the opposite of what it was originally supposed to be. It still has a pedestrian mall and serves as a full-service retail center. But the whole point of the facelift is to mimic – rather than counterpoise – the conventional urban retail district. As the Whittwood Center story shows, California is gradually being de-malled. The regional malls and shopping centers that emerged during the suburban era are becoming obsolete. But they are not all transmogrifying in the same way. Some are growing into the larger regional centers that are necessary to compete in today's retail world. Some are being torn down and replaced with a new kind of shopping center, often something as simple as the standard "power center" with discount retailers. Some are being torn down and replaced with housing, usually high-density housing with a traditional street grid that has been superimposed on the old mall footprint. And still others, like Whittwood, are being transformed without being razed, so that they are more urban and mixed use in nature. The reasons for this change are as profound as they are obvious. Fifty years ago, a standard-issue suburban mall like Lakewood Center or Del Amo Center was a necessary selling point for the single-family-home community being built around it. Today, regional malls are struggling to compete against high-end "experience" shopping such as The Grove in Los Angeles and against low-end discount shopping as exemplified by Wal-Mart. Smaller shopping centers are also struggling, as community retailers gradually go by the wayside in the retail battle. Many more may be at risk if the big three supermarket chains – Vons, Albertsons, and Ralphs – do not recover market share from the recently concluded labor strike and lockout. At the same time, land in California's metropolitan areas is increasingly scarce. The wide-open farmland of a half-century ago in southern L.A. and northern Orange counties has given way to a congested, low-rise tangle of houses, apartments, business parks, and retail centers. The pressure for more housing – and, for that matter, more business parks – is unabated. In particular, the demand for starter homes and sophisticated retail is virtually bottomless among the emerging ethnic populations throughout the state, especially in metropolitan Los Angeles. So old malls, shopping centers, and commercial strips have become fodder for the next generation of urban growth in California. And make no mistake about it, we are talking about urban growth here. It is true that many of these centers – Whittwood Town Center being one example – still devote large chunks of land to surface parking. But in virtually all cases, the most obvious icon of the suburban era – the massive, nondescript enclosed shopping center that could, as one commentator recently put it, be mistaken for an insecticide factory – has been eradicated. The enclosed mall has been replaced with a kind of ersatz urbanism that uses traditional building forms and grid patterns as a selling point, which suggests that the whole place is not simply a suburb but something much more sophisticated. At its best, the de-malling of California is a breathtaking enterprise. The leading example here is Paseo Colorado in Pasadena – a recent transformation of the 1980 regional mall, Plaza Pasadena. The original mall was an early attempt to draw shoppers back to downtown Pasadena. In fact, Plaza Pasadena was one of the reasons why the adjacent Old Town Pasadena returned to life. Despite its urban location, however, Plaza Pasadena was a standard, blocky, enclosed mall. And it cut off the City Beautiful axis between Pasadena's City Hall and its Civic Auditorium. The new version quite literally blew up the center of the building, opening up the center of the mall to pedestrians to reconnect the two civic icons. Even more remarkably, the developers of Paseo Colorado constructed four stories of apartments on top of the existing steel, thus creating a mixed-use project without surrendering the mall's basic structure. And when Macy's declined to renovate, the developers removed the blank brick wall facing Colorado Boulevard by "pasting" coffee and juice shops on the wall's exterior. Of course, not all of the de-malling transformations are breathtaking. In Oxnard, the 1960s-era Esplanade Mall was bulldozed after the city lost a mall war with neighboring Ventura and replaced it with a massive power center featuring every discount retailer imaginable – Target, Home Depot, Borders, Old Navy, and so on. The result is a huge financial success for Oxnard – a very gratifying development after losing the mall war – but it is certainly not a good piece of urbanism. Neither, for that matter, is the winner of the mall war in neighboring Ventura – a standard Macerich four-anchor that failed to take advantage of the fact that it sits immediately adjacent to a residential neighborhood. The de-malling of California is certainly not what the visionary mall developers of the 1950s had in mind when they invented the two-anchor shopping center. And it is probably not how the visionary planners of past generations imagined that urbanism would come to California. But if there is one thing we have too much of in this state, it is a suburban-era infrastructure that is quickly becoming obsolete. And so de-malling will likely to continue apace, as home prices skyrocket, department store chains merge, and Wal-Mart takes over the world.

Three sweeping growth measures in three very different parts of the state — two measures seeking to tightly control development and one growth-friendly plan — all lost during the March 2 primary election. Voters in San Diego and San Benito counties overwhelmingly rejected growth-control general plan amendments. In El Dorado County, voters said no to approving an entire general plan via initiative. Elsewhere, Contra Costa County voters overturned a county ordinance that attempted to block Wal-Mart supercenters. In the city of San Marcos, however, the electorate reversed the City Council’s approval of a second Wal-Mart store for the north San Diego County town. In Napa County, voters rejected a controversial stream-setback ordinance approved by county supervisors, and voters said no to a more stringent setback initiative backed by environmentalists. In an apparent vote for environmental protection, Humboldt County voters said no to the recall of District Attorney Paul Gallegos. The first-term prosecutor sued the giant Pacific Lumber Company over an environmental study last year, and Pacific Lumber responded by pouring more than $200,000 into a recall campaign. Possibly the most significant "yes" vote for land use during the March election was in the Bay Area, where voters in seven counties approved a $1 increase in tolls for seven state-owned bridges. The toll hike from $2 to $3 is expected to generate about $125 million annually, with 90% of the funds going for transit projects. In San Diego County, voters rejected the Rural Lands Initiative, which sought to prevent development of 700,000 acres of sparsely populated eastern and northern San Diego County. Voters rejected a similar measure in 1998. The initiative would have amended the county general plan and placed a "Clean Water and Forest" overlay zone on rural lands. Those lands would then have been zoned for 40-, 80- or 160-acre minimum lot sizes. Backers lined up support from the San Diego City Council, the San Diego League of Women Voters, the American Lung Association and a number of environmental and labor organizations. But opponents, lead by the San Diego County Farm Bureau, poured more than a $1 million into the campaign against Proposition A. Opponents prepared television advertisements that claimed the initiative would force family farmers off their land, opening rural areas to rapid growth. "We think the opposition, with its big developer money, ran a very deceptive campaign and it confused the voters," Duncan McFetridge, a Proposition A organizer and long-time opponent of backcountry development, told the . Measure A apparently did not get a bounce in the polls from last fall’s firestorms, which burned across large portions of the area that the initiative targeted. In tiny San Benito County east of Salinas, voters rejected a complicated growth-control measure. Although the county remains quite rural, San Benito has become something of a relief valve for Silicon Valley workers seeking more-affordable homes. The measure that voters rejected on March 2 capped growth at 1% annually, and rezoned most of the unincorporated county lands from 5-acre to 20-acre minimums, or from 40-acre minimums to 160-acre minimums. The measure initially came to the Board of Supervisors as an initiative that had qualified for the ballot. Supervisors simply adopted the measure. Opponents, led by farmers and real estate interests, then gathered enough signatures to force a referendum on the measure. Opponents were stunningly successful, winning by more than a two-to-one ratio. In El Dorado County, voters were faced with what appeared to be the first general plan proposed by initiative — and about 70% voted against what was seen as a pro-growth plan. El Dorado County has been working on its general plan since the early 1990s. A plan adopted in 1996 was thrown out by a judge who ruled that the county had not fully addressed all of the potential environmental impacts. The county has been working on a revised plan since 1999, and supervisors expect to begin final hearings on new general plan alternatives later this year. Some business groups and taxpayer advocates, who have complained about the amount of money the county’s planning process has cost, were tired of waiting, so they placed an entire plan on the ballot via initiative. The proposed plan was similar to the 1996 plan that the county had adopted but the Measure G version on the ballot did not contain an inclusionary housing requirement. Although voters have approved general plans elsewhere — Pasadena voters backed a City Council-sponsored general plan in 1992 — voters have apparently never before decided on a general plan written as a citizen initiative. Opponents and county officials raised a number of legal questions. The initiative also appeared to divide business and development groups, some of whom were concerned about how a plan approved by voters could be amended in the future. In Napa County, two measures intended to protect riparian areas and halt the conversion of forested hillsides to vineyards appear to have had the opposite effect. The measures gave rise to a new group called the Napa Valley Land Stewards Alliance, a property-rights organization that fought both measures. On election day, the least-restrictive of the two measures gathered barely one-third of the vote. "The most unintended consequence of this Measure P debate is the formation of the Napa Valley Land Stewards Alliance," George Bachich, who heads the group, told the . He vowed that the group would remain active in local politics. Measure P was a referendum of a stream-setback ordinance that supervisors had adopted. It would have barred most activities, including farming, near streams, but would have provided an exception for housing. Measure O would have established even larger setbacks. Backers said the regulations were needed to improve water quality and habitat, and to reduce the risk of flooding. But opponents contended the regulations were overbearing and could force grape growers to take land out of production. In the big-box wars, Wal-Mart won a major skirmish in Contra Costa County but lost a smaller battle in San Marcos. Last year, Contra Costa County supervisors adopted an ordinance prohibiting stores of more than 90,000 square feet from devoting more than 5% of floor space to nontaxable items. Supervisors made clear their intent was to block Wal-Mart supercenters — stores of about 200,000 square feet that sell groceries. Wal-Mart quickly qualified a referendum for the ballot and then poured a reported $1 million into the campaign. Wal-Mart’s investment paid off, as about 54% of voters said no to the county’s regulation. In San Marcos, voters also rejected the elected body’s decision. But in this case, voters reversed a City Council decision to amend a specific plan so that Wal-Mart could build a second store in town. Despite getting outspent 10-to-1, Wal-Mart opponents won about 57% of the vote. Traffic congestion in San Marcos appeared to be a significant consideration. The Bay Area bridge toll increases will provide a large infusion of new money for regional transit. Voters in seven counties considered Measure 2, with only the Solano County electorate deciding against the 50% toll hikes. Among the projects for which the money is earmarked are: • A commuter rail service on the Dumbarton Bridge between Fremont and East Palo Alto • Extension of BART lines in the East Bay and South Bay •Seismic retrofits to BART’s transbay tube •More ferries and express busses •A "fourth bore" for the Caldecott Tunnel between Oakland and Contra Costa County. Although the increased tolls will provide only partial funding for most projects, supporters say the tolls will move some of the already planned projects forward. Taxpayer advocacy groups tried to rally opposition to the toll hikes, saying that only 6% of trips in the region are made by transit. But the vote mirrored elections in recent years in Santa Clara and Alameda counties, where voters provided two-thirds approval for sales tax extensions for transit projects. The election in Humboldt County appeared to mark a sea change for the rural county, which has been dependent on the timber industry for years. Only weeks after taking office in 2003, District Attorney Gallegos sued Pacific Lumber — the county’s large private employer, with 800 workers — for allegedly providing false information in a study of a proposed timber sale. Pacific Lumber and other Gallegos opponents said that the recall was over Gallegos’s handling of criminal prosecutions. Gallegos countered that Pacific Lumber, which provided most of the recall campaign funding, was trying to run the county. The election was widely viewed as a referendum on Pacific Lumber, if not the entire coastal timber industry. Only 39% of voters backed the recall. Local Land Use Election Results Bay Area Seven counties voted on a $1 toll increase for all Bay Area bridges (except the Golden Gate Bridge) to fund a wide variety of transit projects and some road projects. Collective vote, Yes: 56.7% Alameda County, Yes: 55.4% Contra Costa County, Yes: 51.1% Marin County, Yes: 63.8% San Francisco, Yes: 68.9% San Mateo County, Yes: 54.9% Santa Clara County, Yes: 58.8% Solano County, No: 59.1% Contra Costa County A Wal-Mart back referendum of a county ordinance prohibiting stores of more than 90,000 square feet from devoting more than 5% of floor space to non-taxable items. Measure L, No (ordinance fails): 53.8% An advisory measure on the creation of a redevelopment agency, which would target central Martinez. Voters rejected a redevelopment agency previously. Measure M, Yes: 51.4% An advisory measure on expanding the capacity of Los Vaqueros Reservoir from 100,000 acre-feet to 500,000 acre-feet. The agency said the expansion is necessary for improved water quality and drought assurance. Measure N, Yes: 61.6% El Dorado County An initiative for a new general plan. The proposed plan was similar to the 1996 plan, which a judge rejected on California Environmental Quality Act grounds. Measure G, No: 70.0% Napa County Stream setback initiative establishing no-logging zones within 325 feet of streams, 75 feet from springs, 1,000 feet from wetlands and homes, and 150 feet from logger’s residence. The measure is targeted at the conversion of forested hills to vineyards. Measure O, No: 72.9% Referendum of a county stream setback ordinance, which established setbacks of 25 to 150 feet for farms to improve habitat and flood safety. Measure P, No (ordinance fails): 65.4% Orange County Annexation of the Country Club and Fairlynn neighborhoods, which are unincorporated islands of 222 acres and 147 acres, respectively, within the city limits. Opponents of the annexation forced an election. Measure F, No: 68.4% Riverside County An advisory vote on annexation of the Redhawk housing development, and parcel taxes to fund services. Redhawk voters rejected annexation in 1999, but there was no organized opposition this time. Measure E (annexation), Yes: 94.0% Measure F (parks and streets tax), Yes: 93.2% (2/3 vote) Measure G (street lighting tax), Yes: 92.7% (2/3 vote) San Benito County Referendum on growth-control initiative that the Board of Supervisors adopted without an election in 2003. The measure would have downzoned about 800,000 acres of farms and ranchland. Measure G, No (growth-control fails): 68.9% San Diego County The Rural Lands Initiative, a general plan amendment establishing a "Clean Water and Forest" overlay zone for 694,000 acres in northern and eastern San Diego County. The overlay set minimum parcels sizes of 40, 80 and 160 acres. Proposition A, No: 64.4% Rezoning of 20 acres on the east side of town from rural residential to automotive/general commercial. The property owner, the Lucidi family, proposed a gas station and convenience store, and an indoor recreational vehicle parking facility. Proposition E, No: 83% Referendum of amendments to the University Commons specific plan. The amendments increase the amount of multi-family residential land and block a big-box store. Proposition F, Yes (amendments approved): 60% Referendum on amendments to University Commons specific plan to allow development of a big-box store. A Wal-Mart was proposed. Proposition G, No (amendments fail): 57% San Francisco A measure to provide incentives for affordable housing development downtown and along the southern waterfront. Developers would get density bonuses, height restriction exemptions, and expedited building permits. In exchange, 40% of units would be affordable, with two-thirds of units reserved for people who work in San Francisco. Proposition J, No: 70.0% Santa Clara County A council-sponsored update to 1990’s Measure P, which limited residential building permits to 2.5% (about 200) per year. The revisions extend the permit limit by 10 years to 2020, reserve a number of permits for downtown mixed-use projects, and eliminate the requirement that permits be distributed equally around town. Measure C, Yes: 75.4% Yolo County A city-sponsored measure prohibiting the spending of public funds or taking any action to support a proposed flood wall without voter approval. Four years ago, the Army Corps of Engineers recommended construction of a six-mile-long floodwall to protect the city from Cache Creek. The city contends other flood-control measures are available. Measure S, Yes: 62.8%

The City of Wasco has been ordered to pay an attorney that represented the city in complicated bond finance dealings during the mid-1990s. The First District Court of Appeal rejected the city’s argument that the payments violated the state constitution’s ban on incurring general fund debt. The history of Wasco’s bond finance troubles is long and complicated (see , May 2003; , August 1998, July 1998, January 1998; , December 1995). Essentially, the city in 1989 issued $35 million of Marks-Roos bonds and invested a substantial portion of the proceeds in speculative real estate development projects in Wasco, Rosamond, Ione and Nevada County. In 1995, the city hired attorney Cary Lapidus to represent it in the $7 million Rosamond deal, which was going sour. Lapidus first represented the city on an hourly basis and, later, on a contingency basis. Lapidus helped negotiate three agreements with the bond underwriter in exchange for a one-third contingency payment. When he did not get paid, Lapidus initiated an arbitration proceeding against the city. The arbitrator determined that Lapidus was due $484,155. However, because the city had not received all of the money from the agreements, the arbitrator determined Lapidus was presently owed only $86,170 plus 10% annual interest, $21,437 for arbitration costs, and another $10,000 from a trust account. In May 1998, a superior court judge entered an order confirming the arbitrator’s decision. The city still did not pay Lapidus all the money he was owed, so the attorney filed a lawsuit seeking to compel payment. After deducting credits of $95,000 and adding interest accrued since May 1998, San Francisco Superior Court Judge David Garcia determined the city owned Lapidus $83,043, plus interest accruing at about $17 per day. In April 2003, Garcia ordered the city "to make appropriate budgetary appropriations for payment." Instead, the city appealed Garcia’s decision. The city argued that article XVI, § 18 of the state constitution prohibited the city from incurring debt or liability in excess of any year’s revenues without two-thirds voter approval. The section essentially mandates balanced budgets. But a unanimous three-judge panel of the First District, Division Three, rejected the city’s argument. The state Supreme Court ruled in , (1998) 18 Cal.4th 1035, that three exceptions to § 18 exist. One of those exceptions applied in Wasco’s case, the First District ruled: The limitation does not apply to local government debts to be paid from nontax revenues held in a special fund. Typically, this exception permits bond financing where revenues from a project constructed with the bonds are used to retire the debt. In this case, Lapidus was to be paid by money he helped secure — money that was separate from the general fund. "The issue here has arisen because failed to apply the proceeds of the recovery procured by Lapidus in the manner required by the contingency fee agreement," Justice Stuart Pollak wrote for the court. "By failing to pay Lapidus from the proceeds of the recovery, Wasco breached the contingency fee agreement, the terms of which were fully consistent with § 18. The city thereby became liable to Lapidus in an amount equal to the unpaid fees … Section 18 provides no excuse for avoiding an obligation which, if performed in accordance with its terms, would not have violated the constitutional restriction." The Case: , No. A102772, 04 C.D.O.S. 566, 2004 DJDAR 712. Filed January 21, 2004. The Lawyers: For Lapidus: Robert D. Links, Berger, Nadel & Vannelli, (415) 362-1940. For the city: N. Thomas McCartney, (661) 327-4147.