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?

In the course of only a few years, Indian casinos have grown into a major land use concern for counties across California. But now a matter that has been a land use issue mostly in rural areas is coming to urban areas, as tribes look for casino sites near population centers and as some public officials start to view the casinos as economic opportunities. What might be the largest Indian casino in California — the United Auburn Indian Community's Thunder Valley Casino — opened in June in unincorporated Placer County, on the northeast edge of metropolitan Sacramento. Two tribes are seeking to open casinos along the Interstate 80 corridor in Contra Costa County. A newly recognized tribe that was looking at a site between Vallejo and Novato in the Bay Area might be headed to Rohnert Park. Casinos or expansions are at least in the discussion stages within the city limits of San Bernardino, Palm Springs and Barstow. And some small cities in more rural areas, including Cloverdale, Yreka and Blythe, are wrestling with casino proposals just inside, or barely outside, the city limits. Urban projects come despite Governor Gray Davis's stated opposition to Indian casinos in urban areas and despite the fact that the tribes might have little or no historical claim to the sites. While the impacts of most Indian casinos often are similar — traffic, crime, noise, and the potential for inducing growth — tribes themselves are proving very different in the ways they interact with local government. Some tribes have done as much as the next developer to mitigate impacts, and, in a few cases, tribes have agreed to pay tens of millions of dollars to local agencies and even neighbors. Other tribes have ignored local government officials and their neighbors. A major factor, however, is the way the county government and other public agencies treat the tribe and its development. "The relationship between you and the tribe is critical," said Yolo County Supervisor Michael McGowan, who helped his county reach an agreement with the Rumsey Band of Wintun Indians regarding plans to expand the Cache Creek Casino. "You have to get away from us versus them or you're going to have a long, hard time." Relationships are important because tribes are sovereign governments with no legal obligations to California's counties, cities and special districts. Plus, McGowan and the California State Association of Counties (CSAC) complain that the state and federal governments, which have greater legal leverage with the tribes, have shown little willingness to back up local concerns regarding Indian casinos. Still, it is nearly impossible to determine why some counties have good relationships with tribes and other counties do not, said DeAnn Baker, a legislative analyst for CSAC. "It really depends on the tribe and what they need," she said. State negotiations California is home to far more Indian tribes (108) and Indian casinos (52) than any other state. State voters approved of gambling on Indian reservations in 1998. When the state Supreme Court threw out the 1998 initiative, the tribes returned with Proposition 1A, which voters approved nearly 2-to-1 in March 2000. And every indicator points toward casino growth. Dozens of new casinos are being planned, and scores of tribes are seeking federal recognition — the first step toward opening a casino. In January, Gov. Davis announced he wanted to reopen the 58 compacts he signed with tribes in September 1999 and the three compacts signed since then. The governor has stated two major goals for the renegotiations: Getting the tribes to share their revenues with the state, and ensuring that tribes comply with environmental regulations, in part by giving counties and cities a greater role in the development of tribal facilities. The state's negotiators — former state Supreme Court Justice Cruz Reynoso, retired San Diego County Superior Court Judge Anthony Joseph and San Francisco lawyer Frederick Wyle — have sought and received extensive input from county supervisors, sheriffs, district attorneys and other local officials, said Davis spokeswoman Amber Pasricha. "It's very important to understand the ways that cities and counties and tribes are interacting," she said. Counties believe the compacts need to be reworked. Earlier this year, CSAC passed a resolution that, among other things, urges that tribes be required to: • Get local government approval to construct off-reservation improvements. • Comply with the California Environmental Quality Act (CEQA), with the tribe serving as the lead agency. • Allow local law enforcement, fire officials, and health and safety inspectors to gain jurisdiction over casinos and related businesses. • Pay fees and taxes equal to what a typical commercial operation would pay. • Sign judicially enforceable agreements with local jurisdictions. "The rules must change," Yolo County Supervisor McGowan said. "Counties and cities need to have a requirement that they and tribes be required to sit down and address impacts and reach an agreement that is enforceable in court." The counties' concerns grow as tribes develop Vegas-style "destinations" that include casinos, hotels, restaurants, retail centers, golf courses and concert venues. The tribes, however, say they have no obligation to renegotiate 20-year compacts. Each compact is an individual agreement between the state and the tribe, said Sandy Jensen, spokeswoman for the California Nations Indian Gaming Association. The two sides can mutually agree to reopen a compact, or the state can demand to reopen a compact if the state can prove that a tribe has not made a good faith effort to mitigate the environmental impacts of its development, she said. Tribes can seek to reopen compacts to increase the number of slot machines, which now are limited to 2,000 per tribe. Some tribes are willing to talk because they want more slot machines. Other tribes are satisfied with the current limit and, because they have no environmental issues, they are not coming to the table, Jensen said. The governor announced his intention in January, but Pasricha said talks are still in the early stages. "It's been a slow process," she said in June. The county experience San Diego County probably has more experience dealing with Indian tribes than any county in the United States. The county has a full-time tribal liaison and has undertaken an extensive study of the county's 17 tribes, 18 reservations and 8 casinos. San Diego County's first study, produced in November 2000, was presented solely from a CEQA point of view. The report was poorly received because CEQA does not apply to the tribes and because the tribes had no input, said Chantal Saipe, the county's tribal liaison. She updated that report in 2001, but the tribes did not accept it any better. So she changed her approach. The latest version of the report, released in April, begins with a brief history of each tribe and explanation of each tribe's needs, resources and, where applicable, reasons for pursuing gaming. The report then discusses the benefits and negative consequences of each casino. Each tribe had ample opportunity to participate in the report's preparation. This round, the tribes accepted the report better, Saipe said. "One of the purposes was to establish a respectful dialogue with the tribes. I think the report went a long way toward that," Saipe said. In her staff report that accompanied the report, Saipe wrote, "The two most significant and easily quantifiable impacts … relate to traffic and law enforcement. However, the report places these impacts in context by showing that until gaming, tribes had been unable to establish an economic base to fulfill their governmental responsibilities; the tribes have no other options but to develop gaming and other facilities on their existing tribal lands; and tribal development is occurring at a time when the county, after over a century of development, is trying to control development in the backcountry." The report identified $150 million in road improvements needed in the vicinity of reservations with casinos. But the report found that only $24 million worth of those needed upgrades were the result of casinos. Three of the eight tribes with casinos have signed agreements with the county to mitigate all casino-related traffic impacts, and two tribes have agreed to offset some of their traffic impacts. Saipe said the county needs to work out additional agreements. However, she noted, making improvements to these backcountry roads is counter to the county's proposed general plan, which discourages growth in most rural areas. Law enforcement issues have proven even stickier, and only two tribes have signed agreements with the San Diego County Sheriff's Department for reservation-related public safety. San Diego County learned that an authoritarian approach got the county nowhere, Saipe said. Tribes deal with the Bureau of Indian Affairs and the state before pursuing a casino. The tribes do not want resistance from local officials at the end of the process, said Saipe, who has found that most tribes are willing to work with the county. "Each region, each county has unique circumstances, unique history and has different challenges in working with the tribes," said Saipe, who pointed out that the tribes are as new to casino development as the county. In Yolo County, officials initially were upset by the Rumsey Band's proposal to triple the size of its casino in the remote Capay Valley. County officials sought help from state officials regarding environmental issues, but the county learned it was on its own — and that it had no legal recourse with the tribe, McGowan said. Still, the tribe and the county were able to work out an agreement. The tribes can build a smaller-than-proposed casino expansion and the county at some point in the future will process an application for a golf course on non-tribal land. In exchange, the tribe agreed to pay about $80 million over 18 years to the county and neighboring property owners. "We were fortunate in that the tribe we are dealing with are eons-long residents of that particular area. That's their home. They have great feeling for it," McGowan said. He sees the agreement as a starting point. Both the county's and the tribe's needs will evolve, and McGowan said he is confident both sides will do what is necessary. The fact that Yolo and other counties dealing with Indian casinos have failed to get assistance from Sacramento is not surprising. "The tribes, collectively, have become the biggest campaign contributors in the state," said Jim Knox, executive director of Common Cause in California. "They emerged out of nowhere really in the 1998 election to become major contributors, and they have major support at the Capitol." Exactly how much the tribes give to political candidates and causes is unknown because some tribes do not disclose their election activity. Whether the tribes are subject to state election law is an issue the Fair Political Practices Commission is litigating. Knox said a 2000 Common Cause report on Indian election activity took two years to compile because tribes either did not file donor reports or submitted incomplete reports. Welcoming casinos While many local governments are hostile to Indian casinos — El Dorado County, for example, has allocated $300,000 for its legal fight against a casino proposed near Shingle Springs — some local governments look favorably on the jobs and revenues casinos provide. Early this year, the City of Richmond commissioned a consultant to examine a waterfront casino and hotel proposed by the Scotts Valley Band of Pomo Indians. Richmond officials have talked about the jobs and revenue the project could bring to their working-class community. Yuba County officials took less than six months last year to work out an agreement with the Enterprise Rancheria, which proposes building a hotel and casino next to an existing concert amphitheater just south of Marysville. A race track proposed for the site has stalled, and county officials see the casino and hotel as possibly an even better economic engine than the track. In June, Rohnert Park officials began seriously considering asking the Federated Indians of Graton Rancheria to build a casino in the city, rather than on a sensitive site between Vallejo and Novato. The experience of West Sacramento, however, points to just how tricky the issues are. In November 2002, the West Sacramento City Council approved an agreement with the Upper Lake Tribe of Pomo Indians regarding a proposed hotel and casino just off Interstate 80. Backers of the agreement suggested that the casino was coming anyway, so the city should ensure the city benefited. But a divided City Council reversed itself after a referendum on the agreement quickly gained enough signatures to qualify for the ballot. And in February, a federal judge blocked the Upper Lake Tribe's effort to have the federal government take the land into trust for the Indians. The casino proposals in more urban areas amount to "a land grab," contended Cheryl Schmit, director of the Indian gambling watchdog group Stand Up for California. The tribes typically have no historical links to the urban areas, and the tribes often ask the federal government to accept the land so that the tribe can build things like health centers and tribal officers, she said. And while health facilities might get built, it is a casino the tribe is after. Local officials who support these efforts "are being misinformed and they are being duped by the investors," Schmit charged. Not all urban area officials have open arms for the casinos, though. Placer County officials reached an agreement addressing roads and public safety with the United Auburn Indian Community only after realizing the county could not stop the Thunder Valley Casino. The neighboring cities of Roseville and Rocklin joined a lawsuit to halt the casino, which the tribe successfully defended in federal district court. However, even the huge Thunder Valley facility — which features 75,000-square-feet of gambling, two bars, eight restaurants and even a Starbuck's — would be smaller than a proposal in San Bernardino. The San Manuel Band of Mission Indians proposes a 300,000-square-foot addition to a small casino that started out during the 1980s as a bingo hall. The tribe wants to build a large casino, a 2,000-seat event center and a six-story parking garage — all next to a San Bernardino residential neighborhood. Relations between the city and the tribe are poor and appear to be deteriorating. Tribal gambling in California Tribes in California that have federal recognition: 108 Tribal-state gaming compacts in California: 62 Compacted tribes that have active gaming facilities: 51 Compacted tribes without gaming: 11 Tribes that have requested a state compact: 14 Tribes petitioning for federal recognition: 50 Counties with recognized tribes, tribes seeking recognition or sites of proposed casinos: 44 (of 58). Counties with active casinos: 24 Contacts: Michael McGowan, Yolo County supervisor, (916) 375-6441. DeAnn Baker, California State Association of Counties, (916) 327-7500. Chantal Saipe, San Diego County, (619) 685-2542. Susan Jensen, California Nations Indian Gaming Association, (916) 448-8706. Amber Pasricha, governor's office, (916) 445-4571. Cheryl Schmit, Stand Up for California, (916) 663-3207. Jim Knox, Common Cause, (916) 443-9356.

In their effort to address the disproportionate health risk faced by working-class blacks and Hispanics, air-quality regulators in Southern California may soon find themselves playing a greater role in local land-use decisions — a prospect embraced by environmental justice advocates but alarming to many in the business community. Activists have long asserted that poor and minority communities are chosen disproportionately as the locations for polluting industrial operations such as power plants and truck yards, and recent research has provided statistical support for their assertions. A 2001 study by UCLA researchers found that communities surrounding the 100 largest toxic emitters in Los Angeles County had a higher proportion of racial minorities in their population than the countywide average. A 1995 study by Occidental College researchers found that racial minorities in Los Angeles County were three times as likely as whites to live within a half-mile of a toxic-waste disposal site. Suggested explanations for the pattern vary. Some activists point to racism. Others see it as a matter of varying political clout: Wealthy white communities are more likely than poor black and Hispanic communities to hire experts and attorneys to fight proposals for locally undesirable land uses. Some demographic analysts suggest that working-class residents naturally gravitate toward areas surrounding industrial employment centers, where jobs are plentiful, or that the relatively low real estate values that make sites attractive for industrial developments also mean low housing prices, drawing a high proportion of minorities simply because they tend to have lower incomes than whites. Whatever the reason for the pattern, activists now have statistical confirmation of their long-held suspicion, and they are pressing for regulatory relief. Increasingly, they are getting it, or at least being promised that something will be done. The U.S. Environmental Protection Agency (EPA) has had an Office of Environmental Justice since 1992, formed in response to pressure from the Congressional Black Caucus and other groups. The California Environmental Protection Agency established an environmental justice advisory committee two years ago, and Hispanic lawmakers have pushed through a succession of bills since 1999 directing the state to target pollution-reduction efforts at minority and poor communities. But it is in the area of air-quality regulation that California has taken the boldest steps. In December 2001, the state Air Resources Board (ARB) adopted environmental justice policies, committing the agency to gathering and disseminating data about the cumulative health risk posed to minority communities by various emission sources, from diesel trucks to factories. The policies also ensure that residents in disproportionately affected communities are involved in the public review of permit applications and require the agency to target pollution-reduction programs at minority and poor areas. The ARB policy document also contained this passage, which seemed to foreshadow a significant new role for air-quality regulators in the land-use arena: "We recognize that local agencies have a primary role in decisions affecting land use, community health and welfare. Local land-use and transportation agencies are directly responsible for the planning and siting of new air pollution sources, and local air districts also play an important role by issuing permits for new industrial sources of air pollution. As such, we are committed to working as partners with these agencies and other stakeholders to develop the technical tools and guidance necessary to consider the cumulative impacts of local sources of air pollution. The technical tools and guidance are intended to assist the local agencies in their planning and permitting actions, including the consideration of siting alternatives …" The South Coast Air Quality Management District (AQMD), which launched its own environmental justice initiative in 1997, has followed up on the state ARB's policy by drafting a set of proposals that could involve pollution regulators in land-use decisions throughout much of Southern California. The proposals are contained in a draft policy paper released in April, outlining the AQMD staff's proposals for reducing cumulative impacts from pollution sources in subregions of the district, which encompasses Los Angeles and Orange counties and parts of Riverside and San Bernardino counties. Traditional regulatory programs evaluate pollution sources one at a time, setting limits for single permit holders that are based on overall targets for the entire air basin. Acceptable average levels of pollution over an entire region, however, can mask substantial variations between neighborhoods with few emission sources and those with many sources. Environmental justice activists regard the evaluation of cumulative risks from multiple sources as a key strategy in reducing the disproportionate health risk borne by poor and minority communities. One of the options described in the AQMD policy paper is requiring developers of new housing subdivisions, schools, hospitals, day-care facilities, and convalescent homes to survey the proposed construction area and disclose to their clients every source of toxic emissions within 1,000 feet. School districts, for example, would have to send a letter home to the parents of every student each year containing that information. In theory, the notification requirement could apply even to sites near heavily traveled freeways, a prime source of polluting emissions in Southern California. "We think that could influence some land-use decisions," Jill Whynot, a planning manager for AQMD who is overseeing the cumulative-impacts process, told the Environment News Service (ENS). The notification requirement is one of nine options outlined in the policy paper. They are based on suggestions from state and federal regulators and an AQMD working group, which includes representative of industry, environmental organizations and community groups. Other options include stricter mitigations for projects proposed in areas with multiple emissions sources; neighborhood scoping sessions for projects under the California Environmental Quality Act (CEQA); and expedited AQMD and CEQA review for installation of new or modified equipment that would result in a net decrease of pollution in at-risk communities. Many details are still missing, reflecting the policy paper's preliminary state. So far, the disclosure requirement appears most likely to attract widespread attention. The staff report notes that the disclosure requirement might make for better-informed land-use decisions, but also "may have an unintended effect of restricting growth due to notification requirements or otherwise reducing access to needed services." Representatives of potentially affected industries are skeptical. "Public safety is a local responsibility," a consultant for the California Coalition for Adequate School Housing told ENS. "We're not trained to do that." After further review by the working group, the draft guidelines are scheduled to go to the AQMD board for possible action in October. State legislation would be required to authorize the notification program. Contacts: Jill Whynot, AQMD: 909-396-3104 AQMD's cumulative impacts program: www.aqmd.gov/rules/CIWG.htm ARB's Environmental Justice program: http://www.arb.ca.gov/ch/programs/programs.htm

The California Coastal Commission lost its jurisdiction over development of a proposed elementary school in Encinitas because the Commission did not determine within 49 days whether a "substantial issue" existed, the Fourth District Court of Appeal has ruled. The ruling appears to knock down a practice in which the Commission within 49 days of receiving an appeal sets a later hearing date without addressing any of the issues. In 1998, Encinitas Country Day School (ECDS) sought permission to build a 432-student private elementary school on 20 acres along Manchester Avenue, east of Interstate 5 and near the San Elijo Lagoon. The city prepared a mitigated negative declaration, and in late 1998 the Planning Commission and, on appeal, the City Council approved the project. On December 10, 1998, project opponents filed an appeal with the Coastal Commission contending that the project did not conform to the Encinitas local coastal plan.On December 17, Coastal Commission staff members issued a report stating that the city had not yet provided all relevant documents and recommending that the Commission open a public hearing at its January meeting (the Commission meets monthly) and then continue the matter to a later date. On January 13, 1999, the Commission opened the hearing and then promptly continued it to the February meeting without considering any of the issues. On February 4, 1999 — 56 days after the appeal was filed — the Commission decided it had jurisdiction and denied the project because it and the cumulative impact of other projects on Manchester Avenue conflicted with the city's certified local coastal plan. The school then filed suit, asking the court to overturn the Commission's decision and to provide relief for inverse condemnation. San Diego County Superior Court Judge Linda Quinn set aside the Commission's project denial because the Commission had not decided within 49 days whether a substantial issue existed, and because substantial evidence did not exist that the site was within the Commission's jurisdiction. San Diego County Superior Court Judge Thomas LaVoy heard the inverse condemnation part of the litigation. He called the December 17 staff report "unreasonable and arbitrary." But Judge LaVoy determined that the Commission was not bound by the staff report and that the situation did not meet "the extraordinarily high standard for determining that error by the Commission constitutes a regulatory-delay ‘taking.'" The Coastal Commission appealed the jurisdictional ruling, while the school appealed the inverse condemnation decision. A unanimous three-judge panel of the Fourth District, Division One, upheld the decisions of both trial court judges. The Fourth District published only the portion of its opinion addressing the 49-day rule. Public Resources Code § 30621, subdivision (a), requires that a "hearing on a coastal development permit application or an appeal shall be set no later than 49 days after the date on which the application or appeal is filed with the Commission." In the case of an appeal, if the Commission does not act within 49 days, the decision of the local government becomes final. The applicant may waive the 49-day deadline. The Commission argued that its procedure was allowed under Coronado Yacht Club v. California Coastal Com. , (1993) 13 Cal. App.4th 860 (see CP&DR Court Cases , April 1993). In that case, the court allowed the Commission to decide on a proposed dock extension more than 49 days after an appeal was filed. But the Fourth District said the Encinitas case was different. In Coronado Yacht Club , the Commission did decide within 49 days that a substantial issue existed. The Commission then postponed a hearing on the merits. But in the case at hand, the Commission considered none of the issues within 49 days. "In Coronado Yacht Club we approved a procedure where the Commission decided, at a minimum, whether it had jurisdiction within the 49-day period and specifically observed that a procedure like the one used here would be inconsistent with the Legislature's intent," Justice Judith McConnell wrote for the court. Because a determination regarding a substantial issue necessarily includes a determination regarding jurisdictional boundaries, "the question of whether the ECDS project was within the Commission's appellate jurisdiction because it was located between the first public road and the sea was required to be addressed at the January meeting," the court held. When the Commission failed to answer that question within 49 days, the Commission lost jurisdiction, the court held. The court also hammered away at the staff report urging delay because the city had not provided all relevant documents. The record indicated that the city delivered all relevant documents to the staff by the end of the day on December 17, only three days after being notified of the appeal, according to the court. In the unpublished part of its opinion, the court rejected the inverse condemnation claim. The court held that the Commission's position was not completely untenable, and, at any rate, the landowners could have pursued the sort of residential development for which the property was zoned. The Case: Encinitas Country Day School v. California Coastal Commission , No. D038323, 03 C.D.O.S. 3897, 2003 DJDAR 4977. Filed May 8, 2003. The Lawyers: For the school: Martin Mullen, Lewis, Brisbois Bisgaard & Smith, (619) 233-1006. For the Commission: G.R. Overton, deputy attorney general, (213) 897-2703.

The California Supreme Court has ordered the publication of another round in the litigation involving a doughnut shop owner and the City of Hawaiian Gardens. In an opinion issued in June 2002 — but not ordered published until late May of this year — the Second District Court of Appeal overturned a lower court, which dismissed the doughnut shop owner's inverse condemnation lawsuit. The appellate panel ruled that the shop owner should have had the opportunity to amend his lawsuit to prove his case. The court, however, did now determine whether or not the shop owner deserved compensation for inverse condemnation. Last year, the state Supreme Court ordered publication of the Second District opinion in a related case, , 101 Cal.App.4th 1317, (see , October 2002). In that case, the appellate court ruled that the doughnut shop owner, Veisna Kong, was eligible for relocation benefits as a "displaced person" even though he remained in business for six years on property the city acquired under threat of eminent domain. In this separate lawsuit alleging inverse condemnation, Kong sought damages for losing business goodwill, improvements to his shop and inventory. He also sought precondemnation damages, alleging the city behaved inappropriately before acquiring the property. The city acquired the property where Kong was the sublessee in 1993 and sold it the following year to Dr. Irving Moskowitz, who eventually developed a casino. Kong continued to operate his doughnut shop in the same location until late 1999, when Moskowitz evicted him so he could demolish the building and construct a parking lot for the casino. Los Angeles County Superior Court Judge Bruce Mitchell sustained the city's demurrer, indicating that he agreed with the city that Kong had not made enough of a case for the litigation to continue. Judge Mitchell refused to let Kong amend his complaint and the judge dismissed the lawsuit. Kong appealed and the appellate panel overturned Mitchell. Kong "has demonstrated that there is a reasonable possibility that he can cure the defects" in his lawsuit, the court ruled. "Consequently, he must be afforded leave to amend his complaint." The city argued that there was no connection between its purchase of the property and Kong's displacement from his place of business. Kong continued to do business at the location for six years after the city acquired the property, which was longer than his original sublease, the city noted. But, as in its ruling regarding displacement benefits, the court held that it was the agency's initial acquisition of the premises that resulted in Kong getting evicted. The Case: , No. B146142, 2003 DJDAR 5487. Filed June 13, 2002. Ordered published, May 21, 2003. The Lawyers: For Kong: Anthony Parrille, (626) 294-0010. For the city: M. Lois Bobak, Woodruff, Spradlin & Smart, (714) 558-7000.

The Sonoma County Water Agency's environmental impact report for a project to increase the agency's withdrawals from the Russian River has been thrown out by the First District Court of Appeal. The EIR's analysis of cumulative impacts and project alternatives, and the document's description of the environmental setting were all inadequate, the court ruled. The primary flaw was the agency's failure to consider that the Russian River is likely to have less water in it in the future because various agencies and Pacific Gas & Electric Company are pursuing a plan to decrease diversions from the Eel River to the Russian River. Most of the summertime flow in the Russian River is actually water that has been diverted from the Eel. " he agency's failure to consider the impact of the potential curtailment of water from the Eel River has resulted in an EIR that fails to alert decisionmakers and the public to the possibility that the agency will not be able to supply water to its customers in an environmentally sound way," Justice Sandra Margulies wrote for the court. The plan to decrease diversions from the Eel River to the Russian River had advanced to the point that work had begun on an environmental impact statement. That fact alone made the cut in diversions a "reasonably foreseeable future project" that the EIR had to discuss in the project setting and in the analysis of cumulative impacts, the court ruled. Water has been a big issue in Sonoma County for decades, and the Sonoma County Water Agency — which serves 500,000 customers in unincorporated Sonoma and Marin counties and in eight cities — is the biggest player. The agency has the rights to 75,000 acre-feet of water a year from the Russian River, of which the agency uses about 55,000. To meeting growing demand, the agency proposed to increase its Russian River take to 101,000 acre-feet annually and to expand storage capacity. At the same time the agency was considering its plan, the Federal Energy Regulatory Commission (FERC) was reviewing a "consensus recommendation" from the U.S. Fish and Wildlife Service, the California Department of Fish and Game, the National Marine Fisheries Service and PG&E to reduce by 22% the diversion of water from the Eel River to the Russian River. Since 1965, PG&E has had a license to divert between 159,000 acre-feet and 181,000 acre-feet per year from the Eel for hydroelectric plants elsewhere. Most of that diverted water ends up in the Russian River. Those diversions have harmed fish in the Eel River, including some species of salmon that are now endangered. The Sonoma County Water Agency gave FERC an alternate proposal for curtailing the diversion by only 10%. The proposed 22% reduction would have severe environmental consequences, including the potential for dewatering part of the Russian River during critically dry years, the agency told FERC. However, in its EIR for the proposal to take more water from the Russian River, the agency "made only a summary reference to the pending FERC proceedings," according to the court. So environmental organizations sued, arguing that the EIR was inadequate and that the agency had broken some planning laws. Sonoma County Superior Court Judge Lawrence Antolini ruled for the county. But the First District overturned Antolini's decision regarding the EIR. The court was clearly distressed at the agency's failure to address the proposals to reduce water flowing into the Russian River — proposals that the agency argued were speculative, and, therefore, not in need of consideration under the California Environmental Quality Act (CEQA). "The record tells a far different story from the one the agency relates in its EIR," Justice Margulies wrote. "Although the agency euphemistically describes the flow proposals before FERC as ‘modifications,' every proposal before FERC — including the agency's own — posits a decrease in the amount of water available to the agency to supply its customers' needs at a time when the agency is seeking to increase the amount of water it takes out of the Russian River." In fact, one month before certifying its EIR, the agency sent a letter to FERC describing the enormous environmental and economic consequences that the proposed 22% reduction in diversions would have. Yet, the "EIR completely fails to alert the public and the decisionmakers to the cumulative impact of Eel River curtailments pending before FERC and increased Russian River diversions proposed in the project," Margulies wrote. "CEQA requires more than this." Because the EIR's discussion of cumulative impacts was deficient, the section regarding alternatives was also lacking. "Alternatives that would reduce the agency's reliance on water from the Eel River would be among the alternatives that must be considered by the agency in the event it determines that the cumulative impact of the project and the FERC proceeding is significant," the court ruled. The court also ruled that the environmental setting in the EIR was deficient because of the failure to discuss in detail the proposed diversion reduction and the condition of the Eel River water supply. The court rejected environmentalists' arguments that the EIR had to address the water agency project's impacts on the Eel River because, the court held, the project would cause no significant impact to the Eel. The court also dismissed arguments that the EIR's discussion was growth-inducing impacts was inadequate. And the court rejected arguments that the project violated some state laws regarding general plan consistency and compliance with local zoning ordinances. In a short concurring and dissenting opinion, Justice Douglas Swager said that the two-justice majority was wrong about impacts to the Eel River. Until there is an adequate description of the environmental setting, "it is premature to find that the project has no significant impact on the Eel River," Swager wrote. He agreed with his two colleagues on the rest of the issues. The Case: , No. A098118, 03 C.D.O.S. 4165, 2003 DJDAR 6532. Filed May 16, 2003. Modified June 13, 2003. The Lawyers: For Friends: Stephan Volker and Eileen Rice, (510) 496-0600. For the agency: Jill Golis and Sheryl Bratton, deputy county counsels, (707) 565-2421.

Commercial real estate has given rise to a number of insipid sayings. The most notorious, of course, is "location, location, location," which are the "three most important things in real estate." Another familiar adage is one about projects not succeeding without sufficient parking. Less often heard, if not less important, would be the admonition, "Don't be the first to build something in places where the rules are unclear." In particular, consider your options carefully before volunteering to be the trial balloon for building a major project on environmentally sensitive land, especially when the government has not decided exactly how it wants to mitigate such projects. The experiences of two developers — one a large-scale master plan developer and the other a smaller, apartment developer — are snapshots of the uneasy relationship between home building and environmental policy in North San Diego County at a time when newly minted environmental laws are racing to keep pace with rapid home building. In some instances, regulators do not have mitigation standards or other conservation practices in place, and must negotiate each of these environmental issues separately with developers. Consider the case of Morrow Development, a Carlsbad-based home builder that spent nearly 20 years negotiating a development agreement with the city. The site of Villages at La Costa offers gorgeous views of rolling landscape and dramatic valleys in the inland portion of the San Diego County city. On this 1,866-acre site, the developer proposed building more than 3,000 homes, mostly single-family homes, in four-master-planned "villages." The area is also habitat for the elusive gnatcatcher and about 60 other species. In 1990, the U.S. Fish and Wildlife Service added a another layer of complexity to the negotiations by declaring the area part of the 800,000 acres of protected gnatcatcher habitat in Southern California. In 1995, the company, the city, and Fish and Wildlife agreed on a habitat conservation plan for Villages at La Costa that set aside 835 acres as permanent habitat. The developer also acquired 200 acres of adjoining land, which was combined with additional mitigation lands from other developers to form a 1,500-acre reserve. Shortly after, Morrow donated the land to the Batiquitos Lagoon Foundation, an environmental group that had fought the project in earlier years. Not until October 2001, however, did the project win the approval of the Carlsbad City Council. "That deal has been the hallmark" in local land-use negotiations, said Jack Henthorn, former Carlsbad housing and redevelopment director who is now a private consultant. The deal was all the more impressive, he added, because "the regulatory environment changed as the approval process was going forward." A smaller project is the 20-acre Summit at Carlsbad, where Pacific Properties and Development of Las Vegas plans to build 146 apartment units in 11 buildings. Unlike the Villages at La Costa, the Summit property was not gnatcatcher habitat but was former farmland. The acreage, however, lay between two designated habitats, and the city wanted to create a corridor to bridge the two. "When this project was originally proposed," said Henthorn, who consulted on the project," the Carlsbad Habitat Management Plan was still evolving, and there were no clear regulations as to deal with this issue." Pacific Properties acquired the site from another developer in 2000. "They just got tired and ran out of money," said Jim Stockhausen, executive vice president for Pacific Properties. Even though the site contained no gnatcatcher habitat, Henthorn said, "it was a critical link in the habitat management plan for the northern San Diego County area." Environmental regulators had limited jurisdiction over the site, because the site was not officially habitat. Yet the homebuilder continued to negotiate with the city's environmental staff, as well as with Fish and Wildlife, the California Department of Fish and Game, and the Multiple Habitat Conservation Program, an inter-jurisdictional entity that monitors habitat. Furthermore, the presence of degraded wetlands, which required mitigation, brought the U.S. Army Corp of Engineers into negotiations. The developer eventually agreed to devote 60% of the site to open space. "Through that process, we were able to identify what we called the ‘habitat line,' within which development would take place while the area outside that line would then be available to meet the agency's required linkage," Henthorn said. By doing so, he added, "we have created an opportunity for the gnatcatchers to facilitate their crossing of a north-south corridor between Carlsbad and Oceanside bifurcated by Highway 78." Although the area was zoned for single-family housing, the developer decided to build a multi-family complex instead, in exchange for a modest 2% increase in density. In a quid pro quo, the developer set aside 20% of the project for low- and moderate-income renters, rather than the standard 15% required by the city. The project exists within an eight-acre footprint, with units clustered in three-story, walk-up buildings, leaving the rest of the property as the gnatcatcher highway. After five years of negotiation, the developer had received all of the state and federal agency endorsements, and the city approved the project earlier this year. The interesting part of the process," Henthorn said, "is that it shows that when agencies and builders can sit down and clearly communicate what their respective needs are — even in this situation, where there were no regulatory restrictions — we were able to meet the needs of the agencies to create this linkage." What made the process work, he added, was "the builder's willingness to redesign the project and to come up with a design that met with both the builder's needs and agencies' requirements." Compared with the nearly 20 years that Morrow spent getting permits for La Costa, five years may not seem so bad. "I believe we could have done it half the time," Pacific Properties' Stockhausen said a little ruefully. On the other hand, he added, "I'm told that five years is about standard for Carlsbad."

Buildout is a funny term. It is the word that most planners use to describe what their town would look like once everything that is called for in the general plan has been built. In today's world, buildout is easily quantified. Most cities and counties can point to their general plan and identify precisely how many houses and how many square feet of commercial and industrial space buildout involves. In California, where the Department of Housing and Community Development (HCD) is always bird-dogging local governments about their housing elements, buildout can mean a very precise calculation of the jurisdiction's capacity to absorb both single- and multi-family residences. But do communities actually reach buildout? What happens to this theoretical capacity to absorb development when real applicants propose real projects and those projects are reviewed by real planners and real planning commissions and real elected officials? Considering the fact that communities base so many other policies on buildout — housing elements, infrastructure capacity and financing, parks and recreation needs, school needs, and so forth — this is not an insignificant question. And in a state that seems to be in perpetual crisis on both housing production and infrastructure finance, it is nothing less than a major public policy issue. Oddly, there has been little research over the years on the question of whether communities actually hit buildout. But the research that has been conducted has all reached the same conclusion: No, especially regarding housing. In general, housing gets constructed at considerably less than the buildout capacity contained in the general plan. One report by our company, Solimar Research Group, estimated that in Ventura County housing gets constructed at somewhere between 55% and 80% of capacity; a similar analysis done many years ago for metropolitan Portland came up with a figure somewhere in the neighborhood of two-thirds. A follow-up study just released by Solimar and Reason Public Policy Institute, which looked at six different case studies in Ventura County, found a wide variety of reasons for this phenomenon. (The report is available at www.solimar.org ) In some cases, neighbors objected to the proposed development. In other cases, it was clear that the city never really intended to permit what the general plan called for. In still other cases, developers were responding to changing market conditions. In the case of one project in the City of Fillmore, the general plan called for single- or multi-family units at 7 to 11 units per acre. But when the city signaled its desire to have a single-family project built, it turned out that the required minimum lot size was 6,000 square feet, making it impossible to hit the minimum density in the general plan. Eventually, the city allowed lots of smaller than 6,000 square feet, but other concerns — such as the desire for a linear park along the Santa Clara River — ate into the project's density, which dropped to fewer than 6 units per acre as a result. In the case of a project in Camarillo, it was not city regulations but legal liability that caused the density decline. The city was more than happy to process an attached condominium project at approximately 10 units per acre. But the developer eventually chose to build detached condominiums instead — partly to respond to market demand for single-family-style units and partly to avoid construction defect liability issues. The resulting project was only 8 units per acre. No matter how you look at it, one thing is clear: The buildout number in the typical general plan is a ceiling, not a floor. You can see this in the way most general plans approach density. A particular parcel might be designated for "medium density," which might mean a range between 4 and 8 units per acre. So, a project approved at 4 units per acre might either be achieving 100% of buildout or only 50%, depending on how you want to look at it. In many cases, environmental review and other factors will drive down densities, as the process of minimizing impacts, creating mitigations and assuaging neighbors' worries often downsizes a project and causes the jurisdiction to devote some project land to things besides housing. This whole process causes a couple of problems in a state like California. The first one, obviously, is the fact that it may drive down housing production. California seems to have a bottomless demand for housing and prices are rising rapidly. On a statewide level, production is clearly not meeting demand — which is part of the reason why HCD hammers the local governments on production as well as affordability. From that perspective, using the general plan as a ceiling rather than a floor doesn't make things any better. The second issue has to do with infrastructure finance. Because most communities now operate on a "pay as you go" basis regarding infrastructure, many fee and assessment systems are based on buildout. In simple terms, many cities calculate the cost of road, water, and sewer infrastructure required by the buildout and then divide that cost by the number of housing units (or some other measure of buildout) in determining fees and assessments. What happens when buildout goes down? Well, some demand for infrastructure goes down -- but other costs might stay the same, such as the cost of building arterial roads to the new subdivisions. In other words, if buildout doesn't materialize as expected, there might be a revenue shortfall for infrastructure. In other parts of the country — including Oregon and Maryland — the public policy solution to this problem has been to create minimum densities. In other words, create a "floor" for development as well as a "ceiling." This is a tempting solution, but it is probably not realistic in California, where land cost and other pressures have already created fairly high single-family densities in most places. The Maryland minimum densities are laughable by California standards -- two to four units per acre, on average. Even after being shrunk by the approval process, most California subdivisions come in at higher densities than that. Another possible solution — one that the new Solimar report advocates — is better and more expanded use of specific plans. General plans are by nature vague and broad. And it is difficult to achieve true community buy-in for a 20-year plan. A specific plan, on the other hand, is usually used to plan out the precise development of a definable geographical area over a short period of time — say, a neighborhood or district over a five-year period. The Solimar/Reason reports have found that this is a double-edged sword. On the one hand, a specific plan process may reduce densities from what the general plan calls for. On the other hand, projects in specific plan areas are usually approved at 100% of their specific plan densities, so the infrastructure finance plan is likely to line up with actual infrastructure needs. While buildout is not always what it appears, there are tools available, such as specific plans, that make hitting a reasonable buildout level more likely. These tools could protect communities and accommodate a more predictable level of growth.

The City of Buena Park has successfully defended a lawsuit against city ordinances that prohibit long-term occupancy of motel rooms. The Fourth District Court of Appeal ruled that the ordinances were not unconstitutional takings and did not deprive the motel owners of equal protection. In August 1996, the city adopted ordinance No. 1340, which prohibited motel owners from renting a room to the same guest for 30 or more consecutive days. The city adopted the ordinance after a neighborhood improvement task force found unsanitary conditions and vermin in motel rooms rented to long-term guests. Under the ordinance, hotels and motels with at least 75 rooms and a restaurant on or abutting the premises may apply for a conditional use permit allowing stays longer than the 29-day limit. But the city found that motel owners were circumventing the 29-day limit by renting rooms to people for 29 days and then allowing them to check out for one day while leaving their belongings behind. Some motels also allowed multiple people staying in the same room to register under different names. So the health and safety issues persisted In late 1999, the city attempted to close the loopholes by adopting ordinance No. 1399. The new law prohibited motel owners from renting a room to the same guest for more than 60 days within a 180-day period. In March 2000, the Buena Park Motel Association and 12 of its members — ethnic minorities who own and operate small to medium-sized motels — sued the city. They argued that the ordinances were an irrational and unreasonable exercise of the city's police power. The ordinances were an unlawful taking of private property without just compensation and a violation of the motel owners' right to equal protection under the law, they argued. Orange County Superior Court Judge Thomas Thrasher ruled for the city, finding that the lawsuit against the 1996 ordinance was too late, and that the second ordinance constituted a valid exercise of the city's policy power. The motel owners appealed, but they got no further with the Fourth District. Although the statute of limitations for challenging zoning regulations is 90 days, the motel owners argued that they could still challenge the 1996 ordinance state laws permitting the city to levy transient occupancy taxes preempted the local ordinance. The Fourth District rejected the argument, saying it would apply only if the state law fully occupied the area of law, which was not the case. The motel owners also pointed to the U.S. Supreme Court decision in , (2001) 533 U.S. 606 (see , August 2001). In , the court held that there was no expiration date on the constitution's takings clause and that a property owner could seek compensation for a pre-existing regulation. But the Fourth District said no. " ven if we construe as permitting a recent purchaser of private property to circumvent the statute of limitations to challenge a pre-existing zoning ordinance, the case does not apply to the facts at issue here," Justice William Rylaarsdam wrote. "There simply is no evidence in the record that any of the plaintiffs purchased their property after ordnance No. 1340 took effect." The hotel owners' challenge to the ordinance adopted in 1999 was not too late, but the court upheld the validity of the measure. The court ruled that the ordinance was not arbitrary and unreasonable, and, importantly, that it would not deprive them motel owners of all economically viable use of their properties. The motel owners had testified that 35% to 70% of their guests stayed for fewer than 30 days. The motel owners have some flexibility under ordinance 1399 to allow extended stays over the course of 180 days, the court noted. Some of the motels could be modified to meet the criteria — more rooms and a restaurant — for a conditional use permit. And some guests "may elect to remain in the city and move from motel to motel," Rylaarsdam wrote. " he city balanced plaintiffs' right to use their property for extended stays with the public's interest in having all motel rooms regularly cleaned. Thus, we conclude the restrictions imposed by ordinance No. 1399 substantially advanced the city's interest in maintaining sanitary, pest-free conditions at the motels," the court ruled. The court quickly dismissed the argument that the city was discriminating against the motel owners because of their ethnicity. The motel owners conceded during oral argument they had no evidence of this, according to the court. Plus, the ordinance was "appropriately directed at the use of motel rooms" and not at the owners or users. The Case: , No. G029819, 03 C.D.O.S. 4531, 2003 DJDAR 5775. Filed May 9, 2003. Ordered published May 29, 2003. The Lawyers: For the motel association: Frank Weiser, (213) 384-6964. For the city: Quinn Barrow, Richards, Watson & Gershon, (213) 626-8484.

San Francisco International Airport officials will celebrate the opening of a new Bay Area Rapid Transit (BART) train connection this month while lamenting the delay of an unrelated plan to expand runways. The BART extension to the airport is scheduled to open June 22, five and a half years after construction began, and more than 40 years after an airport-BART connection was first proposed. The train system will stop at the airport's international terminal, and continue to a new transit hub in the nearby San Mateo County city of Millbrae. Inside SFO, an automated people mover that resembles a monorail will ferry passengers to other terminals once they get off BART. The new BART extension includes four stations on 8.7 miles of track. Besides SFO and Millbrae, the new stations are in South San Francisco and San Bruno. The new stations link to a system that already barely crosses the San Mateo County line to Colma and Daly City. At the Millbrae station, BART trains will meet passengers arriving on the Caltrain line, a heavy rail system serving the San Francisco Peninsula. Caltrain passengers can then transfer to BART if they wish to go to the airport. Passengers will walk directly across the tracks to catch their trains in what is supposed to be a seamless transit web. Every time a Caltrain pulls into Millbrae, a BART train will be there to meet it on the same ground level platform, according to Molly McArthur, manager of community and government relations for BART. The new station is close to Highway 101, which is often clogged with airport traffic. The Millbrae transit center is expected to eliminate 10,000 daily vehicle trips to the airport, and to be BART's busiest station. By 2010, 70,000 passengers a day are expected to ride the new BART extension, about one-quarter of them to and from the airport. The 8.7-mile extension cost a total of $1.5 billion to build. Of that amount, $750 million came from federal funds, with the rest from state and local funds. The 64,000-square-foot Millbrae station is the first link between BART and Caltrain, a commuter rail service that runs about 70 from San Francisco through San Jose to Gilroy. The new Millbrae train station will have 3,000 parking spaces, which is on par for BART stations in outlying communities. It will also have connection to local buses. BART, which was originally expected to serve as a train system for the entire Bay Area, transports passengers in Contra Costa, Alameda, San Francisco and San Mateo counties. With the new airport extension, BART will have 104 miles of track, said BART spokesman Ron Rodriguez. Santa Clara County voters approved a ballot measure in 2000 to bring the train system to their county via the East Bay as well. Local officials are hoping to secure federal funding for that extension this year, with construction expected to start in several years. While the new SFO BART extension is celebrated, plans to extend runways at the airport appear to be foundering. A fter spending at least $74 million on studies to look at building new runways � and possibly extending them into San Francisco Bay � the San Francisco Board of Supervisors indicated during meetings in May that it would not provide additional funding for the project. The airport said it needed $3.5 million for the remainder of this fiscal year, and $5 million for next year to pay staff, complete environmental studies, and maintain an option on wetlands in the North Bay that could serve as mitigation. Seeing the handwriting on the wall, the airport dropped its funding request in late May. The Board of Supervisors includes many members who took office since the airport expansion plans were announced. Voters approved a ballot measure in November 2001 that would require voter approval of any city project filling at least 100 acres of the bay � namely the airport runway project. SFO Spokesman Mike McCarron said the project is not dead. "It's going to be put on hold for a couple of years," he said, citing the economy and decreased passenger levels at the airport. The airport extension project has been opposed by environmental groups, who do not want to see landfill in the bay. But the project was strongly pushed by San Francisco Mayor Willie Brown and was supported by local members of the business community. When the plan was unveiled in 1998, an airport spokesman said the new runways were needed by the year 2010. The airport's runways are 750 feet apart; however, the Federal Aviation Administration requires a separation of 4,500 feet between planes during poor weather landings. Flight delays at the airport during foggy and stormy weather are legendary. Felicia Borrego, political director of the environmental group Save the Bay, said the environmental arguments against the expansion have always been "compelling," but she agreed with McCarron's assessment that the poor economy had stalled the project. United Airlines, the airport's largest carrier, is in bankruptcy and has cut flights as it struggles to regain profitability. The airline reported losing $1.34 billion during the first quarter of this year. Borrego's group had urged the airport to consider other alternatives to new runways, such as more sophisticated radar technology for landing planes. As originally proposed, two new runways would replace two of the airport's four existing runways. Early proposals called for up to two square miles of landfill in the bay to accommodate the new runways, which would cost as much as $3.5 billion to build and take eight to ten years to complete (see , February 2001). At one point, airport officials hoped to restore salt production ponds on the bay south of the airport to mitigate the damage caused by the fill. But that plan was unlinked from the airport runway plan, and 16,500 acres of salt ponds were purchased for restoration earlier this year by the state and federal governments and a group of private foundations. Contacts: Ron Rodriguez, Bay Area Rapid Transit spokesman, (510)464-6000. Molly McArthur, BART manager of community and government relations, (650) 689-8411. Mike McCarron, San Francisco International Airport spokesman, (650)821-5019. Felicia Borrego, Save the Bay, (510)452-9261.