Steven Nissen became acting director of the Governor's Office of Planning and Research in April 2000 and the appointment has since become permanent. Besides advising the governor and carrying out his interests, OPR provides assistance to local government on land use planning issues. The office is responsible for preparing CEQA Guidelines and General Plan Guidelines, and it operates the state clearinghouse for environmental impact reports. Besides his role at OPR, Nissen serves as a governor's special assistant for innovation in government. Before joining the Davis administration, he was executive director of the State Bar for two years. Earlier, Nissen was a partner in the law firm of Manatt, Phelps & Phillips and served as executive director of Public Counsel, a large pro bono law office. CP&DR: You freely admit that you're not a land use expert. So why are you at OPR? Nissen: When I came here I think I was viewed by the governor as kind of a utility person, and indeed I continue to wear a number of different hats. I set up the efficiency in government office and for about 6 months I was his staff director. During that time, I was in charge of a number of interagency project teams that brought various agencies together. I don't come here totally without a land use background, but admittedly I am not an expert. I did some real estate cases back when I was in private practice. … I think fundamentally there is a relationship between local jurisdictions and the state that is broken for a number of reasons. And one of the first things I want to do is establish healthy lines of communication. CP&DR: How do you go about that? Nissen: Yesterday, for example, we brought together representatives of local jurisdictions, the state and federal government to look at what together we can do on electricity consumption and load sharing and other things. Really for the first time we brought together these people to deal with what kind of contributions we can make. Those public agencies probably account for 5 to 6% of all peak consumption in the state, and we had never sat down and talked to each other. … At the end of the day, even though when we approach Stage 2 alerts and there is a statewide announcement, people feel it in their neighborhoods. There's a broken communication tree to locals and we're trying to fix that. CP&DR: What are your goals for OPR? Nissen: I'd like to see us help build a GIS system available to local jurisdictions with a goal that local jurisdictions use compatible GIS systems so that both the state and local jurisdictions can see what impacts land use decisions have statewide and regionally. I think it's an ambitious undertaking. But our land use planning will only be as good as the information we have. We have started to beef up our group of planners. When I got to the Office of Planning and Research we had one planner. … We want to offer proactive assistance to local jurisdictions. We are not a regulator. We can be a facilitator. It puts us in a unique position in government. We're also the "R" part — the research arm for the governor. We have a legislative function and we have statutory functions. … We also have a number of other charges that are not necessarily related to planning or to one another. Each year it seems like OPR picks up one or 2 more statutory duties, such as coordinating duties among agencies. We want to incent regional planning efforts. The projected growth for the state in the next 20 years is the addition of at least 12 million people. We're all in this together. If we don't plan intelligently under the narrow confines of one local jurisdiction pitted against another, we're not going to accommodate the jobs and housing for those 12 million people, and maintain quality of life and public services we expect. CP&DR: How do you get that collaboration? Nissen: I'm hoping in the year to come we will have a number of comprehensive planning, or "smart planning," sessions so that we can sit down and find common ground. It won't be a dictate from this office. But what we are doing is not working. You are not going to get a groundswell of support to develop in a sprawling fashion. CP&DR: Your office has sent letters to most cities and counties requesting that they file annual progress reports and update old general plans. Why is this a priority? Nissen: It is the law, and we're not asking for blind adherence to the law. It's a law that made sense at the time of its passage and it continues to make sense today. You can't get good regional planning without good local planning. It really starts with the basic tenet that your general plans need to be updated. And you have to give it a level of priority comparable to figuring out how you're going to get your water tomorrow, and your sewer and your electricity. … It is the fundamental building block. CP&DR: What do you do with the updates and status reports? Nissen: Obviously, we have to be selective in our responses to them because we don't have a large enough staff to go through them with a fine toothed comb. The grand plan down the road is, much like the notion of the GIS data, to … overlay all of these general plans to ensure that the whole is truly the sum of the parts. CP&DR: What did you hear from local planners? Nissen: It was distressing that there was a significant negative reaction to asking locals to comply with the law. So we sent out a subsequent communication to offer assistance to jurisdictions that were out of compliance and to be as customer-friendly as possible. I've heard mostly positive comments. There's no doubt that the issue that leads every discussion is money. But once we get past that, there is interest on the part of locals in working regionally and with the state. We're all impacted when we are stuck in traffic for hours. CP&DR: The OPR environmental goals and policies report is supposed to be updated every four years, but it has not been updated since 1978. Are you going to tackle that one? Nissen: There is a commitment to produce an EGPR pursuant to our statutory requirement to do so. The statute requires such a report be produced every four years. The timing of ours will be dependent, among other factors, on availability of adequate staff to produce a useful report. I envision the report containing accessible data, indicators and measurements. Ideally, the report will also be in electronic form so that the data it contains will be updated as new information becomes available. CP&DR: You're talking about facilitating regional cooperation and gathering a great deal of data in a usable way. Is that too much for a small office to bite off? Do you have a timeline for these projects? Nissen: I don't think it's too much to bite off because it has to be done, and it's too dangerous for all of us not to do it. In terms of a timeline, look, we're all dealing with limited resources, OPR included. It is an ambitious project and OPR is the place to do it. But much of the timeline will be dictated by how committed cities and counties — and the associations that work with local jurisdictions, as well as the other stakeholders, environmentalists and developers — are to a well-planned state of California. CP&DR: Where does private sector fit in? Nissen: I think, as in everything, the private sector is crucial. For these smart planning concepts to be successful, they do have to pencil out. They have to be attractive to people who build homes. They have to make sense to lenders who provide the capital that makes projects possible. CP&DR: You've mentioned that the Davis administration does not use the term "smart growth." But the administration seems to advocate many of the concepts often included in definitions of smart growth. Nissen: In the language used in the budget, particularly in the local budget section, there is a recitation of principles for development that has become known as smart growth. But it has become a loaded term that may not be appropriate for California. CP&DR Managing Editor Paul Shigley interviewed Steve Nissen in mid-December.

A divided California Supreme Court has upheld a state law that allows religious institutions to exempt themselves from historic preservation ordinances. In a 4-3 ruling, the court found that the exemption — which applies only to noncommercial property owned by religious institutions — violated neither the First Amendment's free exercise clause, nor the state constitution's establishment clause. "These exemptions simply free the owners to use the property as they would have done had the property not been designated a historical landmark," Justice Marvin Baxter wrote for the majority. Justices Janice Brown, Ming Chin and Joyce Kennard joined the opinion. The court majority was met with strong dissents by Justice Stanley Mosk and Kathryn Werdegar, the latter of whom was joined by Chief Justice Ronald George. "Hundreds, if not thousands, of buildings are vulnerable," Elizabeth Merritt of the National Trust for Historic Preservation told the Los Angeles Times. The majority's ruling not only allows religious institutions to avoid certain zoning regulations, it also throws into question the future of many historic structures in the state. But state attorneys who defended the law said churches are different than other landowners. They argued that the law removed a potential infringement on religious expression. At issue are provisions in Government Code §25373, subdivision (d), and §37361, subdivision (c), which the Legislature passed as temporary measures in 1993, and made permanent in 1994. The law prohibits the application of local landmark preservation ordinances to noncommercial property owned by a religious entity if the owner objects to the local regulation. The Government Code sections themselves do not actually exempt any property; they only establish the framework for owners to get the exemption. Several nonprofit development and historical preservation organizations, and the City and County of San Francisco challenged the law. (Ironically, then-speaker Willie Brown carried the legislation to assist a San Francisco church.) The plaintiffs argued that the law violated the First Amendment by conferring a benefit only on religious organizations, providing significant economic advantages to religious groups at the expense of secular property owners. The plaintiffs also argued that the law improperly gave government authority to religious groups, which can essentially approve their own exemptions. The plaintiffs further contended that the law violated the "no preference" provision of Article 1, §4, of the state constitution, and Article XVI, §5, which bars government aid to religious institutions. Sacramento County Superior Court Judge Joe Gray ruled that the law violated both the state and federal constitutions. But the Third District Court of Appeal reversed that decision. The appellate panel ruled that the exemption did not endorse religion; it merely facilitated the efforts of religious organizations to advance their purposes. The state Supreme Court upheld the appellate court ruling. First, the state's high court applied the "Lemon test" derived from U.S. Supreme Court decisions in Walz v. Tax Commissioner, (1970) 397 U.S. 664, and Lemon v. Kurtzman, (1971) 403 U.S. 602. Under the Lemon test, a law passes First Amendment muster if it has "a secular legislative purpose," if its primary effect "neither advances nor inhibits religion" and if it does not "foster an excessive government entanglement with religion." The court ruled that the law passed all three prongs of the Lemon test. "Although application of a landmark preservation law to property owned by a religious entity does not violate a religious entity's free exercise rights, insofar as they law may burden that right, an accommodating exemption is a proper, constitutionally permissible, secular purpose," Justice Baxter wrote. "The exemption in question here seeks only to relieve religious entities of a potential burden on free exercise." As for advancing religion, the court held, "The only impact of the exemption is that the owner may continue to use the property as it sees fit (subject to other applicable laws) to further its religious mission unrestricted by the historic preservation law. … That the owner may enjoy an economic advantage over secular owners of landmark properties is not relevant." Finally, the court held that the law did not create any entanglement, or even any relationship, between religious institutions and the government. The court then addressed challenges based on the state constitution. "We do not believe … that the protection against the establishment of religion embedded in the California Constitution creates broader protections than those of the First Amendment," Baxter wrote. Neither the language in the state's "no preference" clause nor the legislative history "supports plaintiffs' argument that the clause bans governmental accommodation of religion or religious belief in general," Baxter continued. Nor did the law provide aid to religious institutions as defined in the state constitution and interpreted in California Educational Facilities Authority v. Priest, (1974) 12 Cal.3d 593, the court majority ruled. "While there may be a benefit as compared to properties that are subjected to landmark designation, neither the state nor the local governmental entity expends funds, or provides any monetary support, for the exempted property or its owner," Baxter wrote. In their dissents, Mosk addressed the state constitution, and Werdegar the federal. "This is an easy case," Mosk wrote. " he Legislature has conferred on religious organizations a governmental power that is not enjoyed by other property owners. Such favoritism toward religion is prohibited under out state constitutional provisions forbidding the establishment of religion, the preference for religion, and aid to religion." Mosk wrote that the state constitution is "analytically distinct and more protective of the principle of church-state separation than the First Amendment." Thus, the Lemon test should not control this case, he wrote. And he railed against the majority for basing its decision on the speculative burden of historic preservation laws. " t is not enough that local historic landmark preservation laws might in some conceivable situation impose some burden on a religious organization, however insignificant and however unrelated to a religious mission," Mosk wrote. "The majority's flawed approach could be used to justify exempting religious organizations from any neutral law of general applicability." Werdegar called the exemption a "drastically overbroad measure," that was inconsistent with the First Amendment. " he challenged provisions … go far beyond a reasonable accommodation of the exercise of religion and, as a practical matter, grant a significant, unjustified and preferential benefit to religious organizations." Historical protection advocates said that they might ask the U.S. Supreme Court to review the decision. The Case: East Bay Asian Local Development Corporation v. State of California, No. S077396, 00 C.D.O.S. 10114, filed December 21, 2000. The Lawyers: For East Bay: Zane Gresham, Morrison & Foerster, (415) 268-7145. For San Francisco: Kate Stacy, deputy city attorney, (415) 554-4617. For the state: Louis Verdugo Jr., assistant attorney general, (213) 897-2177.

A 2-2 vote on an environmental impact report is not enough to certify the document, the Fourth District Court of Appeals has ruled. The California Environmental Quality Act requires that the elected body make an affirmative decision on environmental documents, the court held. In this case, the Orange County Board of Supervisors, after one member recused himself, voted 2-2 on an EIR for a proposed 705-unit mobile home park. The county then determined that the Planning Commission's certification of the EIR, which had been appealed to supervisors, remained in effect. But in an artfully written opinion, Fourth District, Division Three Presiding Justice David Sills said no. " board cannot validly provide for an approval of an EIR by tie vote. In doing so, it would be circumventing the protections provided by CEQA to expose elected decisionmakers to the political consequences of any decision to certify an EIR," Sills wrote. "There is sort of a grand design in CEQA: Projects which significantly affect the environment can go forward, but only after the elected decisionmakers have their noses rubbed in those environmental effects, and vote to go forward anyway." In 1996, California Quartet, Ltd., proposed a 705-unit mobile home development on 222 acres in Trabuco Canyon near St Michael's Abbey and the Ramakrishna Monastery. Orange County prepared an EIR that identified a number of significant impacts, including adverse air quality, loss of certain habitats, conflict with wildlife movement corridors, viewshed alteration and nighttime glare. In December 1997, the county Planning Commission certified the final EIR. The Vedanta Society of Southern California, which owns the monastery, appealed the decision to the Board of Supervisors. Two months later, the Board of Supervisors conducted a public hearing from which Supervisor James Silva recused himself. The remaining four supervisors split 2-2 on the EIR. However, Supervisor Thomas Wilson, acting as board vice chairman, declared that the tie vote meant that the Planning Commission's decision had been upheld. The Vedanta Society sued, seeking a declaration that the Board of Supervisors never decided on the appeal and did not ratify the Planning Commission's action. Meanwhile, California Quartet revised its project to call for 299 single-family houses. The Board of Supervisors then decided on a 3-1 vote that the project revision did not trigger the need for a subsequent EIR and that an addendum would suffice. That decision produced another lawsuit from the Vedanta Society and St. Michael's Abbey, and a suit from three environmental groups. The three lawsuits were consolidated in 1999. Orange County Superior Court Judge Robert Thomas ruled that the tie vote was the same as taking no action on the Vedanta Society's appeal; thus, the EIR was never validly certified. Judge Thomas also directed the county to set aside all approvals regarding the 299-unit project. On appeal, the developer and the county argued that, under CEQA, the default result of a tie vote was adoption of the planning commission's findings and explanations. They also argued that under the county's internal procedures the tie vote meant the Planning Commission decision was upheld. Finally, they argued that supervisors' 3-1 vote not to require a subsequent EIR was an affirmation of the original EIR. The unanimous three-judge panel of the Fourth District rejected all three arguments. The court held that CEQA and its Guidelines (California Code of Regulations, Title 14, §§15000) required the Board of Supervisors to make an "affirmative explanation" and adopt its own findings. "The very fact that ‘findings' (including a Guideline 15091 (a) explanation) must be made at all is incompatible with the nature of a tie vote. A tie vote … cannot constitute an affirmative act de novo," Sills wrote. "In effect, CEQA requires not only de novo review by a board of supervisors, but de novo fact finding as well." Sills continued, "Elected decisionmakers faced with appeals under CEQA from unelected bodies thus do not have the luxury of playing Hamlet. … Inherent in a consideration and finding requirement is that the body of elected decisionmakers must take unambiguous action, and unambiguous action means decisionmakers cannot be evenly divided against themselves. In CEQA terms, they have no alternative to taking arms against the troubles identified in the EIR; they do not have the option of suffering them silently." The court found that if the county had a policy allowing EIR approval on a tie vote, it would not be allowed under CEQA. The court also held that the 3-1 vote against requiring a subsequent EIR meant little. "As we have explained above, this EIR was never validly certified. A vote to allow an addendum made on the assumption that it already was certified cannot substitute for a vote certifying the EIR in the first place," Sills wrote. The court pointed out that its decision did not apply to tie votes in non-CEQA cases. It also did not address consequences of failing to adopt the EIR. Pointing to Sunset Drive Corp. v. City of Redlands, (1999) 73 Cal.App4th 215, (See CP&DR Legal Digest, August 1999), in which the court held that a city could be liable for damages under the federal Civil Rights Act for not completing a required EIR, Sills wrote, "We simply note that a developer is not without remedy for a lead agency's failure to certify an EIR because it deadlocked on a vote." The Case: Vedanta Society of Southern California v. California Quartet, Ltd., No. G026580, 00 C.D.O.S. 8762, 2000 Daily Journal, D.A.R. 11559, filed October 30, 2000. The Lawyers: For Vedanta Society: Edmond Connor, Connor, Culver, Blake & Griffin, (949) 622-2600. For California Quartet: William D. Ross, (213) 892-1592. For Orange County: Robert Break, Latham & Watkins, (714) 540-1235.

The Swiss Army knife is the ideal present for boys, especially those from nine to eleven years old. That's the age when every boy believes that all he needs to be a consummate survivalist is his natural pluck and one of those elegant, red, compact tools bouncing jauntily on his belt. Far from a mere blade, even a fake version of the Swiss Army package contains a pair of scissors, a nail file with a screw-driver tip, tweezers and a toothpick. With a tool like this, you could fight off an assailant, clean a fish or even assemble a desk from IKEA. Without one, you're a wallflower among the Webelos. If any building has earned the right to be called the Swiss Army Knife of urbanism, it would be the ingenious, five-level structure in downtown Burbank known as Media Village. Under a single roof, the building combines a low-income senior housing complex with 147 apartments, a public parking structure for 500 cars, a popular nightclub with live music, a ballet school, a Brazilian restaurant, and a store that sells golf equipment. Additionally, architect Mark Gangi — vice president of design of the development firm, Gangi Development of Glendale — has carved out several sensitively-scaled plazas just off the sidewalk that should fill up with people when the area has enough pedestrians. In short, the Media Village building is a "city in the box" that contains damn near everything you need for a lively downtown area. Media Village is a centerpiece of the restoration — perhaps creation is more accurate — of downtown Burbank. Making downtown happen in Burbank has been slow and difficult; Johnny Carson's infamous jibes at "beautiful downtown Burbank" were inside jokes. Everybody in the NBC Studios knew that Burbank had virtually no downtown at all, except some diners, a retail strip and a few civic buildings. The main retail attraction was the Golden Mall, which had the novelty of being a pedestrian-only shopping street. Like the old Third Street mall in Santa Monica, it failed from a lack of foot traffic. In his Los Angeles: The Architecture of Four Ecologies, the late Reyner Banham predicted the mall would fail because it was a single, linear strip, rather than an entire urban district; perhaps the mall seemed too anomalous or too inconvenient in a landscape of park-in-front retail. Even without the Golden Mall's unique problems, making a downtown for Burbank meant overcoming extraordinary obstacles. The map of Burbank is radically decentralized; the city has at three different grids. Interstate 5 and the Metrolink commuter-rail line plow through the center of town, disrupting much of the street continuity, except for a small number of major thoroughfares, most of which change direction several times. (The present writer, who is dyslexic in way-finding and easily disoriented in the car, actually refused to drive in Burbank for many years.) The city's business culture is also split. The film studios are located to the south, and the aerospace industry and the Burbank-Glendale-Pasadena Airport to the west. The civic center is not close to either business cluster. Worse, Interstate 5 isolates downtown from much of the rest of the city. Visitors must cross a freeway overpass to reach downtown, which feels of isolated. If downtown is isolated, the city has had both the tax base and the active civic leadership to hang in there with a quixotic project like making a downtown nearly from scratch. Burbank is one of a number of self-made California communities that could be called "redevelopment cities." (San Jose, Long Beach and Anaheim also fall into this category.) These are cities that have big dreams of being important places. Sometimes such cities have big chips on their shoulders; they feel slighted for being seen as industrial, or outdated or otherwise unglamorous. They seem almost hell-bent on making something happen in their downtown areas and tourist destinations. Burbank's downtown is an early case history of entertainment-driven redevelopment. After the failure of the Golden Mall in the early 1980s, the city in the mid-1980s opened one of the first multiplex cinemas in the region, which became a "destination" and which has added screens incrementally ever since. By the late 1980s, the city had won voter approval to build a regional mall to compete for what the city perceived as lost sales-tax revenue flowing to malls in nearby Glendale and Sherman Oaks. The second phase of downtown redevelopment, equally commercially but friendlier to people on foot, was a power center anchored by IKEA and Virgin Records. While obviously designed for cars, this power center also had sidewalks and tried to approximate something like a shopping street. The third phase of downtown (I am simplifying the sequence here somewhat) has been the transformation of the Golden Mall into an eight-block, mixed-use district known as Burbank Village, which is the setting of the Media Village building Located immediately east of the power center, the village is built on the vestiges of the original downtown Burbank, and, as such, has the built-in advantages of a traditional street grid and existing commercial structures. Cartoon Network, for example, occupies a four-story building originally used by the telephone company. Ironically, Burbank officials made the area more attractive to pedestrians by re-introducing vehicular traffic to the formerly vacated streets, and supplying public parking, most notably in the present project. Parking, the bane of urbane design, once again becomes an engine of pedestrian activity. Media Village itself has a rational design that some people find hard-edged and lacking in charm. It is a large building, covering most of a city block with 55,000 square feet of retail space on the ground floor alone, yet it is not out of scale with its multi-storied neighbors. For all its many uses, the building feels very much like one building. If anything the architecture is too unified. Still, Media Village, which opened in 1999, has a number of architectural features that are praiseworthy: Built on the former site of a Pic 'N' Save store, the project avoids boxiness. As mentioned above, the building shrinks back at certain points from the sidewalk to provide open air plazas. In other areas, the architect provides towers that lend a distinctive form to the housing portion of the project. Even in the alleys, the developer showed creativity by locating a ballet school at the rear of the project and providing floor-to-ceiling glass walls that allow passers-by to watch girls at their barre exercises. A small crowd is gathered in front of the window at most times of day. If Media Village could be more charming, the project has proven to be a catalyst for pedestrian movement and, possibly, for further investment in the area. The project has been a versatile tool for activating downtown Burbank. Perhaps a good mixed-use building is not quite as glorious as a Swiss Army Knife, but it still makes a great gift for the right city.

A Pacific Gas and Electric proposal to auction its hydroelectric assets could bring about a new land rush in the Sierra Nevada, the southern Cascades and the coastal mountain ranges. If the sale goes forward as proposed, as many as 20 different owners could assume control of PG&E's 99 reservoirs, 174 dams, 110 electricity generating units — and 140,000 acres of land, much of which is pristine. State and federal land managers, advocacy groups and a draft environmental impact report make clear that the proposed sale — which is driven by state's energy deregulation plan — has the potential to greatly alter the landscape. The sale could invite large-scale timber and surface mining, and could induce urban development in areas that have remained largely untouched, especially along the Interstate 80 corridor east of Sacramento. In sworn testimony to the California Public Utilities Commission, U.S. Forest Service Lands Officer Carol Efird said, "Auctioning the PG&E facilities and land has a great potential to fragment habitat, increase the risk of negatively impacting water quality, disturb or destroy cultural resources, increase the development of land within National Forest boundaries and reduce the Forest Service's ability to properly manage forest resources across a landscape or watershed." The Forest Service is only one member of a state-federal "Hydro Working Group" that is reviewing the proposed auction and preparing comments on the 4,100-page DEIR that the CPUC released in late November. Other entities involved in the Hydro Working Group include the Bureau of Land Management, National Marine Fisheries Service, the state Resources Agency, the Department of Fish & Game, California Department of Forestry, the Department of Parks and Recreation, and the State Water Resources Control Board. The working group's charge is to protect environmental values associated with PG&E's hydroelectric assets, said Jim McKinney, the working group project manager for the Resources Agency. "These assets have been under PUC regulation for more than 80 years, and there are a lot of public interest environmental values that have accumulated over that time," McKinney said. Now, there is a once-in-a-lifetime opportunity for PG&E to transfer ownership of those assets and greatly reduce government oversight, he said. The working group contends — and the DEIR appears to agree — that licenses granted by the Federal Energy Regulatory Commission, which regulates nearly all of PG&E's generating facilities, do not contain strong enough provisions to protect environmental resources if the ownership changed and new management practices were implemented. The working group and some environmentalists believe the proposed auction creates an opportunity to impose additional conditions on dam operations and land use, and gives the state the chance to take ownership of some sensitive areas at least temporarily. But PG&E is wary of additional regulation. The CPUC ultimately will decide on the proposed sale of assets, and there are serious questions about how far the CPUC can extend its jurisdiction, PG&E Spokesman Jon Tremayne said. The CPUC has mostly stuck to rate-setting in the past, while FERC — not the CPUC — has regulated power plant operations, he noted. So it remains unclear whether the CPUC can impose some of the mitigations suggested in the DEIR, such as conservation easements, parameters for stream flow and reservoir levels, and even the dismantling of some facilities. The auction In September 1999, PG&E filed an application with the CPUC to auction its hydroelectric assets. A year earlier, PG&E had announced that it did not intend to keep its hydroelectric assets within its regulated utility. Instead, PG&E wanted to transfer ownership of the hydroelectric system to an unregulated subsidiary, which could charge market rates for electricity. PG&E shopped this idea to the state Legislature but could not strike a deal, even though it offered a number of pot-sweeteners, such as conservation easements, guaranteed water releases and money. Noting that the state's deregulation legislation calls for establishing the market value for all of PG&E's non-nuclear generating facilities by the end of 2001, PG&E then filed the application to auction its hydroelectric assets to the highest bidders. Undoubtedly, the auction would determine the market value. The proposal divides PG&E's assets into five watershed bundles that include all hydroelectric facilities and equipment, water rights and land interests. These five watershed bundles could be broken down to a total of 20 smaller bundles. Some observers say — but PG&E denies — that the proposed auction is only a bluff intended to get the Legislature to look favorably on PG&E's original plan to transfer the hydroelectric system to a subsidiary. Under this scenario, the environmental and electricity market consequences of the auction would appear so severe that state officials would have to reject it. The utility did offer a "proposed settlement" that was similar to the deal it pitched to the Legislature in 1999. However, PG&E has withdrawn the settlement because it valued the hydroelectric assets at $2.8 billion, and PG&E believes the value has risen considerably during the electricity shortage of recent months, PG&E's Tremayne said. At this point, the proposed auction remains a live project. The DEIR The CPUC ruled that the proposed ownership transfer was a project under the California Environmental Quality Act. After a month-long scoping phase, Aspen Environmental Group commenced a six-month review that resulted in the nine-volume DEIR released in late November. An untold number of public employees, consultants, environmentalists and PG&E experts are now reviewing the report. The document identifies a wide range of very specific impacts, said Tim Duane, a University of California, Berkeley, City and Regional Planning professor with a background in energy policy. The DEIR specifies areas where development is likely to occur and identifies concerns related to the potential development. The DEIR also makes clear that possible changes in forest management practices could have a substantial impact on the region, said Duane, who reviewed the document for the CPUC. The proposed auction would have 49 significant adverse impacts, including two that could not be mitigated: changes in operation of dams would harm some endangered species of fish, and development of lands around hydroelectric facilities would adversely affect air quality in local air basins. " sale to new owners could produce changes in the rate and timing of water releases," according to the DEIR. "A sale could also produce changes in other areas, including forestry or grazing practices on watershed land; recreational access and use of waterways, reservoirs and land; and land development opportunities." The DEIR also makes clear that the auction is not the most environmentally friendly option of the 16 studied. "Nine of these alternatives would be environmentally superior to the auction," the DEIR states. "The best of these — having Pacific Gas and Electric Company retain its hydroelectric facilities under CPUC regulation — would avoid all of the auction's significant environmental effects." Environmentalists and public officials have promised to file extensive comments on the DEIR's findings and recommendations. PG&E itself has assigned a number of people to study the document. Said PG&E's Tremayne, "There are some analytical flaws that need to be corrected and some factual errors that were made." Staff and consultants of the CPUC have scheduled 26 public hearings from January 29 through March 5 to accept testimony on the DEIR. The sessions will be spread among 13 locations from Burney to Porterville. The Concerns The proposed auction includes 88,000 acres of land that is outside boundaries of any project regulated by FERC. Generally, these are undeveloped lands adjacent to reservoirs. These lands, plus about 7,000 acres inside FERC boundaries, are of great interest to state and federal land managers, planners and environmentalists. (A good portion of the remaining "FERC lands" is under water.) According to the DEIR, up to 10,226 dwellings could be built on these 95,000 acres, including nearly 4,000 homes in portions of Placer and Nevada counties. Because most of these lands now have few improvements and lie in remote regions, there is a strong possibility of conflicting land uses, according to the DEIR, which recommends extensive use of conservation easements to offset significant impacts. Nancy Ryan, a consultant to Environmental Defense (formerly the Environmental Defense Fund), said that the potential for extensive land development — and the secondary affects of that development, including inducement of other growth —is one of the principle environmental threats of PG&E's proposal. McKinney, of the Resources Agency, suggested that the DEIR understates the extent of potential development. Depending on the particular county board of supervisors that is involved, the auction presents "a ripe situation for wholesale land use changes," he said. "It just takes one vote to change the zoning on a piece of land in California," McKinney said. "You just look at the development pressures in Placer and Nevada counties, and look at how highly popular recreation is in that area." The U.S. Forest Service has expressed similar concerns. In comments to the CPUC, the Forest Service pointed to an earlier sale of 160 acres in the rugged South Yuba River watershed by PG&E to Manasha Corporation. Manasha logged the land, then sold it to a developer, who convinced Nevada County supervisors to amend the general plan to allow construction of a resort that could accommodate more than 100 visitors at a time. "What goes on on PG&E land greatly affects how we manage our lands," said Christine Nota, the USFS regional forester's representative in Sacramento. In general, PG&E has managed its land similarly to the Forest Service and made its property available to the public, she said. Those stewardship values are especially important in areas where PG&E property and federal holdings form a checkerboard pattern. The DEIR "assumes a new owner would have an economic incentive to develop this land." The analysis found that development on PG&E lands in Shasta, Butte, Plumas, Nevada and Placer counties could induce further growth by introducing roads, utilities and other public services into remote regions. The Bureau of Land Management is worried about the likelihood of many more people building homes and cabins in woods. A bunch of new landowners can hinder federal land management techniques and reduce public access to federal land, said Duane Marti, a BLM realty specialist. "One thing that we're really concerned about is the wildfire — the urban-wildland interface," he said. "It's just getting harder and harder to fight a wildfire because of all the houses." On PG&E lands in the Feather River watershed of Butte and Plumas, in Shasta County's Pitt River watershed, and in portions of the upper Eel River watershed in Lake and Mendocino counties, logging appears to be a greater concern than urban development. A large portion of PG&E's lands are heavily forested, so they will be attractive to logging companies, said Nota of the Forest Service. Laurie Wayburn, president of Pacific Forest Trust, which advocates sustainable logging, commended PG&E's past forest stewardship. But in the past decade, she said, PG&E has increased logging on its land, and has sold thousands of acres to Sierra Pacific Industries. The state's largest private landowner, Sierra Pacific's aggressive clear-cutting of its property in recent years has been criticized by environmentalists and some state regulators. Most people expect Sierra Pacific to bid on PG&E property. The analysis in the DEIR and PG&E's recent track record provide backing for the CPUC to impose a conservation program and allow the state to purchase some sensitive lands, Wayburn said. The CPUC could work with the Resources Agency on a package that would adequately compensate PG&E, said Wayburn, who called the DEIR's alternatives too limited. "They just have some critical watersheds," Wayburn said. "This is a particular point in time that we have a chance to get some people to coalesce around this." The Resources Agency's McKinney agreed that the auction presents a unique opportunity to look for means of enhancing the environmental aspects of PG&E's hydroelectric system. Besides the land, of course, are the actual power generating facilities. The DEIR specifies numerous potential problems if a new owner, including PG&E's subsidiary, would change operations to maximize energy output, of if a new owner would maximize water storage. Such changes would alter dam releases, harming endangered fish and affecting water quality and availability, according to the DEIR. Moreover, PG&E currently provides 90% of the 200,000-acre-feet of water consumed annually by Mendocino County's Potter Valley Irrigation District, the Nevada Irrigation District and the Placer County Water Agency. PG&E's contracts with these three mostly agricultural agencies end at different times during the next 22 years. "If the new owners do not renew these water contracts when they expire, this water could be used to support the consumptive needs of about 1.3 million people elsewhere, possibly producing growth-inducing impacts," the DEIR states. The Prospects While the auction is uncertain at this point, in part because of the volatile electricity market, most interested parties believe the extensive environmental analysis is not an academic exercise. "PG&E has indicated it does not want to continue to operate these generating plants," said UC's Duane. "The PUC clearly needs to address the impacts of that, especially in light of the electricity crisis that has hit the state." Tremayne said PG&E is moving ahead with the auction application. "Obviously, there is a much larger crisis looming, but we still need to move forward and value these assets by the end of 2001," he said. The Resources Agency's McKinney said, "Nobody has ever looked at Pacific Gas & Electric's and Southern California Edison's hydroelectric assets in their entirety." Such an examination makes, he said, because nearly all of PG&E's system drains into the Bay Delta, which serves as the center of California's water universe. Plus, the growth inducements and cumulative effects of new ownership and asset management extend across the entire system. Contacts: Jon Tremayne, Pacific Gas & Electric, (415) 973-5930. Jim McKinney, Hydro Working Group, (916) 654-3999. Duane Marti, Bureau of Land Management, "(916) 978-4675. Nancy Ryan, Environmental Defense, (510) 658-8008. Christine Nota, U.S. Forest Service, (916) 498-5901. Laurie Wayburn, Pacific Forest Trust, (707) 895-2091. CPUC PG&E Hydropower Project Website: http://cpuc-pgehydro.support.net

It's not every day that a city places a full-page newspaper advertisement demanding a larger sphere of influence. Yet that is just what the City of Santa Clarita did last fall — on the same day it placed another full-page ad in the Los Angeles Times complaining about a gravel quarry proposed outside the city limits. The splashy advertisements are just one part of the latest round in the City of Santa Clarita's long fight with Los Angeles County over control of one of the fastest growing areas in the county. When Santa Clarita incorporated in 1987, it became a city with no sphere of influence. The city filed applications in 1989 and 1991 with the Los Angeles County Local Agency Formation Commission to establish a large sphere of influence, but LAFCO said no both times. In January 2000, the city filed another application with LAFCO, this time seeking to place 116 square miles of the Santa Clarita Valley and its hillsides into the city's sphere of influence. The city of 151,000 residents now covers about 47 square miles. Once again, Santa Clarita faces opposition from the county and from builders — who do not want the city to get between them and the development-friendly Board of Supervisors. This time, however, Santa Clarita is gathering as much political support as it can muster. The city has lined up endorsements from Assemblyman George Runner (R-Lancaster) and U.S. Rep. Howard McKeon (R-Santa Clarita), who served on the original Santa Clarita City Council. Several schools districts and a number of business and civic organizations also support the city's proposal. The newspaper ads and a mass mailing generated about 10,000 response cards, 95% of which endorsed the city's sphere request, said Planning and Building Director Jeff Lambert, who is leading the city's efforts. "This is a full-court press," Lambert said. "We're going up against Newhall Land & Farming, and they are much more persuasive downtown than we are." Newhall has been responsible for much of the development in the Santa Clarita Valley and still owns tens of thousands of acres in the area. The developer opposes Santa Clarita's proposal to reach across Interstate 5 to Newhall holdings west of the freeway. That area includes the site of the proposed Newhall Ranch, where the developer plans what would essentially be a new town of 21,800 homes and 1,000 acres of commercial and mixed-used development. (See CP&DR , January 1999, July 2000.) Los Angeles County has approved a specific plan and zoning changes for Newhall Ranch, but the project is mired in litigation brought by neighboring Ventura County over the development's water sources. Publicly, Santa Clarita does not want to block the giant Newhall Ranch development. The city, in fact, is not part of the lawsuit against the project. Still, there are lingering questions. Santa Clarita has raised a fair number of slow-growth activists since becoming a city and some of them have lobbied against Newhall Ranch. "We are opposed to the sphere of influence west of the 5 freeway on our property. We are not opposed to the sphere of influence request for our property on the east side of the 5 freeway," Newhall spokeswoman Marlee Lauffer said. "We've always seen the 5 freeway as the dividing line between the city and the county. … There are no city services in that area and it's isolated from the rest of the city." Currently, the city's boundary coincides with the Interstate for several miles. To the west lies Newhall Ranch, the 6,000-unit Stevenson Ranch, which is partially approved and built, and Six Flags' Magic Mountain theme park. All of those interests want the city to remain on the other side of the eight-lane freeway. But Santa Clarita officials complain that they have no control over development that is greatly affecting their city. "Over 40,000 new housing units are approved or pending for development in the unincorporated (non-city) Santa Clarita Valley," said the city's newspaper ad, which featured a picture of children taking a number to play on a swing. "This will seriously impact our schools, traffic, emergency service, natural environmental resources, water availability and other urban services. Right now, the City of Santa Clarita has no formal voice in new development approvals outside City boundaries where the majority of development is occurring, and no voice in the adequate provision of schools, parks and roads." The second ad, regarding a proposed quarry in the hills east of the city, contained even stronger language. The advertisement said the Transit Mixed Concrete proposal would worsen traffic, affect groundwater, lower property values and threaten children's health. The county has scheduled a public hearing on the quarry this month. The newspaper advertisements were not popular in the office of Los Angeles County Supervisor Michael Antonovich, who has represented the area for 20 years. Antonovich Policy Deputy Conal McNamara called the ads "offensive." He said they unfairly painted the county as the villain, and he questioned their timing. "I think city-county relations are a lot better than they used to be, to the credit of some people at the City of Santa Clarita," McNamara said. McNamara, a former Santa Clarita planner, said the city does not need a sphere of influence to have a say on area development. Antonovich requires developers to meet with city officials and work out details before seeking county entitlements, McNamara said. "I don't know what it's going to get them that they don't already have," he said of the sphere of influence. In fact, the city and county have even embarked on a joint general plan for the area. "The sphere doesn't give them control over the land." said LAFCO Executive Officer Larry Calamine, "But it does give them a seat at the table." McNamara and the area's big developers say future residents, some of whom will not arrive until houses are built 20 years in the future, should determine who governs their communities. "It is premature and inappropriate to say to future Newhall Ranch residents that this is your only option for jurisdiction," Newhall's Lauffer said. They should have the opportunity to form their own city or even incorporate with the nearby community of Castaic, which opposes Santa Clarita's proposed sphere of influence, she added. City Planner Lambert recognizes that the county does provide the city opportunities to influence development of unincorporated lands. But the city wants a formalized review process. Moreover, there should be only one agency that decides on development for the entire valley, he contended. Lambert endorsed the joint general plan effort. If both the city and county agree on guiding principles, they should go ahead with specifics for a new general plan, he said. But that does not mean the city's sphere of influence effort will end. The Los Angeles LAFCO will likely conduct a public hearing on Santa Clarita's application in February or March, Calamine said. He said the city's request is more reasonable than its previous two filings, and it is unusual in that it seeks residential areas, not only revenue-generating commercial strips. "They make a good case for much of the property they want to add," said Calamine, who declined to say what he would recommend to the LAFCO board. Lambert said the proposed sphere is not as expansive as earlier proposals and that it closely matches community college and high school district boundaries. Contacts: Jeff Lambert, Santa Clarita Planning Division, (661) 255-4330. Marlee Lauffer, Newhall Land & Farming Co., (661) 255-4000. Conal McNamara, Office of Supervisor Michael Antonovich, (213) 974-5555. Larry Calamine, Los Angeles LAFCO, (213) 974-1448.

A lawsuit that has already reached the state Supreme Court is again making its way up the legal ladder. In mid-December, San Joaquin County Superior Court Judge Bob McNatt upheld the San Joaquin Local Agency Formation Commission's approval of the Califia project (formerly called Gold Rush City) in the City of Lathrop. Last year, the state Supreme Court allowed the case to go forward after McNatt and the Third District Court of Appeal ruled that project opponents did not exhaust their administrative remedies as required under an obscure procedural rule. The state's high court said the "Alexander rule" was not applicable and reinstated the lawsuit. (See CP&DR Legal Digest, October 1999, August 1998.) McNatt ruled that LAFCO need not prepare a supplement EIR. But project opponents said they were asking LAFCO to exercise its independent judgement and to adopt its own findings and mitigation measures — not to prepare a supplement EIR. They contend that the project EIR improperly defers an analysis of water availability, and they promised to appeal the ruling. Califia proposes building about 5,800 homes and several theme parks on 6,000 acres in the Bay Delta that Lathrop annexed. In November, city voters changed the development agreement to allow Califia to build the houses before constructing the theme parks and other commercial developments that were projected to provide thousands of jobs. The case is Sierra Club v. San Joaquin Local Agency Formation Commission, No. CV001997.

The California Supreme Court has accepted a takings case that threatens the viability of San Francisco's Hotel Conversion Ordinance. The court has decided to hear San Remo Hotel v. City and County of San Francisco, C.A. 1st Div. 5, No. A083530 (see CP&DR Legal Digest, September 2000, October 2000). In an opinion published in two portions, the First District Court of Appeal ruled that the "heightened scrutiny" test applied to the hotel conversion ordinance, meaning there must be a close relationship between the exaction and the project's impact. The court ruled that a lawsuit filed by owners of the San Remo Hotel should proceed in trial court. The hotel owners had argued that the city's ordinance violated state and federal constitutional provisions against taking private property without just compensation. The City's law bars the conversion of residential hotels to tourist use unless the hotel owner replaces the converted units with new affordable housing or pays a substantial mitigation fee. Both sides agreed that imposition of the Nollan/Dolan "heightened scrutiny" test could mean the end of the hotel conversion ordinance. The city would have to provide an "essential nexus" between the permit conditions and the impact of the proposed hotel conversion, as well as a "rough proportionality" between the exaction and the project's impact. Property rights advocates say such a standard is required to prohibit uncompensated takings; the city argues that land-use laws of general applicability need not meet the standard. The Fifth District also remanded to the trial court the factual issue of whether the San Remo was a nonconforming use. If the hotel were a legal nonconforming tourist hotel prior to passage of the hotel conversion ordinance, a $567,000 mitigation fee that the city has tried to impose would seemingly not apply. The Fifth District made clear it thought the San Remo was a tourist hotel at all times and there was no "conversion" involved. Five of seven state Supreme Court justices voted to hear the case. No date for oral arguments has been set.

The Fourth District Court of Appeal has upheld Orange County's environmental impact report for expansion of the James A. Musick jail. In an unpublished opinion, the court overturned a trial judge's ruling in a lawsuit brought by the City of Lake Forest. (City of Lake Forest v. County of Orange, G023884.) The county wants to expand the existing jail, which is bordered by Lake Forest, Irvine and El Toro, from 1,250 beds to nearly 8,000 beds. However, the county has indicated it would pursue a smaller facility to end various lawsuits over the project.

California's system for generating and distributing electricity — which has attracted little attention from the public and most policymakers in the past — became topic number one in December and January when extraordinary efforts by the state and federal governments were needed to keep the lights on. But the electricity concerns is only the latest in a series of recent efforts that focus on the state's infrastructure Transportation planners are wrestling with daunting growth projections for Southern California: another 7 million people in metropolitan Los Angeles by 2025, including 3 million in Los Angeles County alone. The Southern California Association of Governments released a draft transportation plan in December that painted a bleak picture for the region and all but begs for tax increases. One month later the Metropolitan Transportation Authority produced its Long Range Transportation Plan for Los Angeles County that emphasizes additional carpool lanes, bus service and other new transit options. Meanwhile, the California High Speed Rail Authority continues its work, with 15 town hall meeting scheduled across the state in February and March. At the state level, many people are anticipating the report from the Commission on Building for the 21st Century, commonly called the Governor's infrastructure commission. The report originally was due last December 1. But the group — which is headed by Lt. Gov. Cruz Bustamante and Business, Transportation and Housing Secretary Maria Contreras-Sweet — asked for more time so it could take the most comprehensive look possible. The final report will urge better coordination of land-use planning processes and infrastructure planning, said commission Director Audrey Noda. Jobs-housing balance, brownfields redevelopment and infill development will all be addressed, said Noda, who expects the commission to complete the report this spring. Such a comprehensive approach would be new to the world of state-sponsored infrastructure planning in California. David Dowall, a professor of city and regional planning at University of California, Berkeley, hopes the commission will go even farther beyond conventional thinking. Last year, Dowall authored a report for the Public Policy Institute of California that insisted the state move toward infrastructure management and policymaking, and away from provision of facilities. In "California Infrastructure Policy for the 21st Century: Issues and Opportunities," Dowall argued for prioritizing projects based on how much consumers are willing to pay for services, shifting infrastructure responsibilities to private and nonprofit entities, and using long-term financing rather than pay-as-you-go mechanisms. Dowall has seen a draft of the 21st Century commission's report and said it contains many of the concepts he advocated. Some people realize the state cannot simply build itself out problems, he said. "At the same time," Dowall added, "I think there is a lot of resistance on the part of the governor's office and labor unions and some of the commissioners over the dreaded P word — privatization." Dowall and others are continuing their work through the PPIC and plan to release a detailed look at infrastructure planning and delivery this spring. In the area of transportation, SCAG's Draft Regional Transportation Plan — and statements by SCAG leaders — suggest that the jig is up in Southern California. The plan calls for a more efficient regional transit system, a high-speed train from Los Angeles to the Inland Empire, bigger airports and new highway lanes dedicated to truck traffic. "We've reached the point in time where we can't build ourselves out of trouble with new freeways. We just don't have the room to construct them," SCAG Spokesman Jeff Lustgarten said. According to SCAG, the region during the next 25 years will fall about $10 billion short of the amount needed to maintain the existing system and build short-term projects that are already programmed. So SCAG officials recommended generating another $40 billion by: o Increasing the gas tax by 5 cents in 2005 and a penny a year until 2025; o Extending sales tax overrides that will sunset in within 10 years in San Bernardino, Riverside and Orange counties; o Adopting a dedicated sales tax for the first time in Ventura County; o Imposing new taxes on alternative fuel vehicles o Continuing Gov. Davis's plan from last year of reallocating more state funds for local transportation projects. All of those measures entail inherent political risks, but they would provide $30 billion for long-term projects. "That, honestly, is not anywhere close to what we really need, but it's a step in the right direction," Lustgarten said. The MTA paints no prettier picture than does SCAG, although some of MTA's plans could be more financially realistic. While the MTA calls for building more carpool lanes on nearly every major freeway, it emphasizes an increase in transit alternatives, such as expanding "rapid-bus" service and adding Metrolink trains. The rapid-bus routes have fewer stops and buses have the ability to hold lights green. Recognizing that Californians are reluctant to give up the convenience of their cars, both SCAG and MTA discuss creating some sort of shuttle service that would take people from their homes directly to train stations or bus stops. Planners at SCAG would like to see something completely new for the region — a high-speed magnetic levitation transportation system, or "Maglev." SCAG hopes that federal officials choose the region for a demonstration project, although SCAG might pursue such a system even without extra federal funding, Lustgarten said. The 200-mph train would run from Los Angeles International Airport to downtown to Ontario Airport to a destination in the Inland Empire. Such a system would cost an estimated $6 billion, but it is enticing because it is inexpensive to maintain, Lustgarten said. Plus, because the trains create so little noise and air pollution, lines could be built with minimal setbacks. A more far-reaching high-speed rail plan is the hands of the High-Speed Rail Authority. Although two years ago Gov. Davis dismissed the concept as "Buck Rogers technology," the commission lives on and appears to receive more respect all the time. Engineers are studying routes that would link the Bay Area to Merced, Sacramento to San Diego via Bakersfield, Los Angeles and Orange County, and Los Angeles to San Diego via Riverside County. An environmental impact report is underway. A late-January announcement from the Authority said the town hall meetings are a way "to seek the opinions of the communities along the identified corridors regarding what transportation concerns they have, where stations are most needed, how the high-speed train system should connect and compliment existing modes of transportation and more." Contacts: David Dowall, University of California, Berkeley, (510) 642-2223. Audrey Noda, Commission on Building for the 21st Century, (916) 321-2892. Jeff Lustgarten, Southern California Association of Governments, (323) 466-3445. SCAG RTP website: www.scag-rtp.govconnect.org/ High-Speed Rail Authority website: www.cahighspeedrail.ca.gov Public Policy Institute of California website: www.ppic.org

While slow-growth advocates won the majority of ballot measure contests in California this November, the pro-growth side claimed victory in three major statewide contests elsewhere in the West. In both Arizona and Colorado, voters defeated statewide initiatives aimed at creating urban growth boundaries around most cities by 70-to-30 ratios. Both Arizona Proposition 202 and Colorado Amendment 24 would have required voter approval of development outside the growth boundaries. Also in Arizona, voters narrowly rejected Proposition 100, which was aimed at permanently conserving about 270,000 acres of open space and agricultural land. While the Arizona and Colorado decisions leave the status quo in tact, voters in Oregon struck a huge blow against their land use regulatory system. The Oregon electorate voted 53% to 47% for an initiative that requires the government to compensate landowners for every state or local regulation that diminishes property value. An impartial, pre-election analysis determined that Measure 7 could cost state and local government in Oregon more than $5 billion a year. Opponents have vowed to challenge Measure 7 in court. The election was a major victory for property rights advocates who contend that many laws and administrative rules amount to "regulatory takings." Santa Clara County supervisors approved a Stanford University growth plan that was designed as a compromise between the school and area residents who want to preserve Stanford's foothills. Under the plan approved in late November, Stanford can build 3,000 housing units for faculty, staff and graduate students, and 2 million square feet of other facilities, including a basketball arena, performing arts center, classrooms and laboratories. Development will be centered in the core campus area. The plan requires Stanford to protect 2,000 acres in its western foothills for 25 years and abide by a county plan for protecting about 400 acres of environmentally sensitive property. A last-minute proposal from Supervisor Joe Simitian to prohibit development on about 1,000 acres for 99 years was strongly opposed by the school and lacked adequate support on the Board of Supervisors. Possibly the largest private landowner on the Peninsula, Stanford has largely had land use autonomy for its 8,180 acres in the past. (See CP&DR Local Watch , February 2000.) The new Community Plan, which is scheduled for final approval December 12, is the most detailed and most public planning document devised for Stanford. Assembly Speaker Robert Hertzberg has appointed 29 people to his new Commission on Regionalism. Nick Bollman, president of the Oakland-based California Center for Regional Leadership, will serve as chair. According to Hertzberg's office, the commission will "study and recommend changes to state policies and governance structures to help regions address issues that tend to leapfrog city and county boundaries." A complete list of members can be found on the speaker's website, http://democrats.assembly.ca.gov/members/a40 The Southern California Association of Governments has formally rejected state housing figures. The Department of Housing and Community Development mandated development of 504,000 housing units by 2005 in the five-county SCAG region, down from 625,000 units HCD originally proposed. Instead, SCAG said the region could accommodate only 438,000 new units. How SCAG and the state will resolve the apparent impasse was unclear. Local governments in the SCAG region are suppose to complete housing element updates by December 31. In a stunning setback for the developer, the California Coastal Commission voted unanimously to limit development at the controversial Bolsa Chica site to only 65 acres. Hearthside Homes sought permission to build about 1,200 homes on 183 acres at Bolsa Chica, a 1,200-acre coastal wetlands and mesa in unincorporated northern Orange County. Various developments have been proposed over the last three decades for Bolsa Chica, but environmentalists fighting to save one of the region's last large wetlands have prevailed in most rounds of the protracted regulatory and legal battle. Few observers expect the Commission's vote to end the struggle. Cisco Systems intends to build a 3.4 million square foot campus in Fremont's recently approved Pacific Commons office park (see CP&DR Economic Development , November 1999). Fremont approved the 8.25 million square foot Catellus project along San Francisco Bay earlier this year. Cisco could employ up to 10,000 workers at the site, making Cisco Fremont's largest employer. The campus would be in addition to a facility twice as big that the City of San Jose recently approved for Cisco, which makes Internet hardware. The Navy has signed an agreement with San Francisco Mayor Willie Brown to clean up Hunters Point Naval Shipyard and give it to the city in phases during the next four years. The 500 acres of land along the Bay has gone mostly unused since the Navy shuttered the facility in 1974. The city could acquire an 88-acre tract as soon as February 2001. The shipyard has long been seen as a potential site for housing and commercial development in the Bayview-Hunters Point District, which is one of San Francisco's poorest. Some area residents, however, call the site a public health menace and have little faith in the Navy. The shipyard was placed on the Superfund list in 1989 and the Navy has yet to fully clean it up because various parties could not agree on cleanup levels. A judge has upheld Kern County's year-old ban on the spreading of sewage sludge on farmland (see CP&DR Environmental Watch , July 2000). A number of Southern California agencies that have trucked sludge to Kern County sued last year, claiming in part that Kern County could not adopt the ordinance banning sludge without an environmental review. Tulare County Superior Court Judge Paul Vortmann ruled against nearly all of the wastewater agencies' claims. An appeal is likely.

The Department of Energy could sell 47,000 acres in an area with five endangered species to Occidental Petroleum without consulting the Fish & Wildlife Service, the U.S. Ninth Circuit Court of Appeal has ruled. The federal legislation authorizing the sale of land outside Bakersfield allowed the sale to go forward without an endangered species consultation, and without Occidental applying for a new "take" permit under the Endangered Species Act, the court held. National Petroleum Reserve – 1, also called Elk Hills, lies about 25 miles south of Bakersfield. It is one of the nation's biggest oil fields, but it also contains at least four endangered animals and one endangered plant. Pursuant to Congressional direction, DOE has extracted oil from the field at a high rate since 1976. During that time, DOE consulted with FWS three times. Most recently FWS issued a "biological opinion" in November 1995. The FWS established several mitigation measures (but did not require participation in a habitat conservation plan) and issued an "incidental take" permit under section 10 of the ESA, which allows development that could otherwise threaten a species' survival. In February 1996, Congress passed the National Defense Authorization Act (DAA) of 1996, which directed DOE to sell Elk Hills within two years. In October 1997, DOE accepted a purchase offer from Occidental. The Tinoqui-Chalola Council of Kitanemuk and Yowlumne Tejon Indians, and the Southwest Center for Biological Diversity sued. They claimed DOE violated section 7 of the Endangered Species Act (16 U.S.C. 1531 et seq.) by not consulting with FWS prior to completing the sale, and by failing to ensure the sale would not jeopardize continued existence of endangered and threatened species. District Court Judge Oliver Wagner ruled the suit was moot because the sale had been completed. Alternatively, he determined that Congress waived Section 7 with regard to the Elk Hills sale. The Southwest Center (but not the Indians) appealed. A unanimous three-judge panel of the Ninth Circuit ruled the case was not moot but held that Congress overrode Section 7 to allow the sale to proceed quickly. A key point for the court was the Defense Authorization Act's provision allowing the Secretary of Energy to transfer DOE's incidental take permit to the Elk Hills purchaser. "Because the incidental take statement is generally nontransferable, this provision reflects Congress's intent to permit the purchaser to continue operations under the same terms and conditions applicable to the DOE without requiring the DOE to reinitiate consultation with the FWS and without requiring the purchaser to first obtain a permit pursuant to section 10 of the ESA," Judge David Thompson wrote for the court. The court further noted that the DAA allowed the purchaser to operate under the incidental take permit only if its activities were identical to those of the DOE. Thus, DOE fulfilled its Section 7 obligations to protect the rare species because a change in activities would require Occidental to seek a new take permit, the court held. The Case: Tinoqui-Chalola Council of Kitanemuk and Yowlumne Tejon Indians v. U.S. Department of Energy, No. 99-16384, 00 C.D.O.S. 280, filed November 20, 2000. The Lawyers: For Southwest Center for Biological Diversity: Daniel Rohlf, Portland, Oregon. For DOE: Greer Goldman, Department of Justice, Washington, D.C.