The City of San Francisco has been dealt setbacks in two cases in which the city attempted to argue that two hotels were not "grandfathered" as tourist hotels and therefore are subject to the city's hotel conversion ordinance because of alleged conversion from residential to tourist use. The two cases appear to have interconnected issues that may need to be resolved later. In the first case, one First District appellate panel concluded that the hotel needed to prove "actual tourist use." In the other, a different First District panel stated that the city's certification of some rooms as tourist hotel rooms was sufficient and proof of actual tourist use was not necessary. In the notorious case of the San Remo Hotel, the First District Court of Appeal, Division Five, remanded the question of whether the hotel was a legal nonconforming use to the trial court for technical reasons. However, the court made it clear that the trial court should find in favor of the hotel owner rather than the city. The owners of the San Remo have been fighting the city's attempt to impose a $567,000 fee under the city's Hotel Conversion Ordinance. The city levied the fee because the owners allegedly converted the hotel from residential to tourist use. In August, the First District ruled that a trial can move forward for an unconstitutional taking. (See CP&DR Legal Digest, September 2000.) In a newly published portion of the case, the court remanded the non-conforming use question back to the trial judge. If the hotel was a legal non-conforming use under the North Beach Neighborhood Commercial District ordinance prior to the 1987 passage of the Hotel Conversion Ordinance, then the fee would presumably not be applicable. The trial judge had ruled on the non-conforming use issue as a matter of law rather than a factual basis, which is why it was remanded. The city argued, among other things, that some rooms were rented for residential use prior to 1987 and therefore tourist use of the entire hotel was illegal. The appellate court saw things differently. "The hotel remained at all relevant times factually and legally a hotel renting to tourists, not a commune, a fraternity house, or any of the other uses specified in the ‘group housing' category," wrote the court: "If appellants were not operating a ‘hotel', then one might wonder why the City always issued to it a use permit as a hotel, collected hotel taxes on its tourist rentals as a tourist hotel, and required a ‘mitigation fee' under the HCO when it was ‘ converted' from a residential ‘hotel' to a tourist ‘hotel.'" In the other case, a different First District panel concluded that the city's certification of hotel rooms as tourist units established their lawful use as tourist hotel rooms and no proof of actual tourist use is required. The Tenderloin Housing Clinic had sued the Astoria Hotel, claiming that the hotel had violated the city's residential hotel conversion ordinances. In order to establish the hotel's lawful status as a tourist hotel, both the city zoning administrator and the trial court required the Astoria to show actual tourist use. But the appellate court disagreed. "The Planning Code does not specify that a use must have ‘actually' existed to be deemed permitted," the court held. "It states that a use must have ‘lawfully' existed." The Cases: San Remo Hotel v. City and County of San Francisco, No. A083530, 2000 Daily Journal D.A.R. 9877, issued August 8, 2000, full publication September 6, 2000. Tenderloin Housing Clinic Inc. v. Astoria Hotel, No. A088494, 00 C.D.O.S. 7003, issued August 18, 2000. The Lawyers: For hotels in both cases: Andrew Zacks, (415) 821-0347 For City and County of San Francisco: Andrew Schwartz, deputy city attorney, (415) 554-4620 For Tenderloin Housing Clinic: Stephen L. Collier, (415) 771-9850.

The shift of $200 million per year away from redevelopment agencies to school districts as part of the state's property tax reallocation beginning in 1992 did not constitute a "reimbursable state mandate," the Third District Court of Appeal has ruled. The ruling clarifies a question that first emerged when redevelopment agencies reluctantly agreed to the shift of funds in 1992. The City of El Monte had filed a test claim on the issue with the Commission on State Mandates. However, the city lost all the way down the line, with the commission, a trial judge, and a three-judge panel of the Third District ruling against the city. The key to the decision was an earlier court ruling concluding that property tax-increment funds, to which redevelopment agencies are entitled under Health & Safety Code Section 33678, are not "proceeds of taxes" subject to the "Gann limit" (Article XIII B of the state constitution), which prohibits major spending increases by local government without a vote. Section 6 of the Gann limit also requires the state to reimburse local governments for state-mandated costs. Wrote Presiding Justice Arthur Scotland for the Third District panel: " redevelopment agency cannot accept the benefits of Health & Safety Code Section 33678 while asserting an entitlement to reimbursement under Article XIIIB, Section 6." Beginning in 1992, the state shifted more than $2 billion annually in property taxes to school districts from other local agencies, including redevelopment agencies. The purpose of this shift was to save the state money, so an adverse ruling in this case certainly would have been ironic. These funds, known technically as the Educational Revenue Augmentation Fund (ERAF), have never been fully restored to local agencies. There was some question about the constitutionality of the redevelopment agency shift, but the agencies reluctantly agreed to the shift because they were under considerable pressure for legislative reform. (Major reform occurred the following year.) On appeal, El Monte made two arguments. First, the city argued that the re-allocation of funds away from redevelopment agencies created a new program or an increased level of service under an existing program for which the state should bear financial responsibility. The court disagreed, noting that the issue was not programming but funding. " efore the enactment of the ERAF legislation, a substantial, although variable, portion of local property tax revenues were utilized for the support of schools. In this respect, a utilization of local property taxes in support of schools and community colleges is not a ‘new program,'" Scotland wrote. In deciding this issue, the Third District compared the redevelopment agency situation to the state's decision to permit counties to charge cities booking fees for arrestees. The ERAF legislation, the court said, "was merely the most recent adjustment in the historical fluidity of the fiscal relationship between local governments and schools." El Monte's second argument had to do with the applicability of Section 6 of the Gann limit to redevelopment agencies. Among other things, the Third District noted that Article XIII B calls for reimbursements only when "the costs in question can be recovered solely from tax revenues." The ERAF legislation did not specify what source of funds redevelopment agencies must use; therefore, the court said, "It follows that the ERAF legislation did not impose costs to a redevelopment agency that can be recovered solely for tax revenues within the meaning of article XIII B …." The Case: City of El Monte v. Commission on State Mandates, No. C025631, 00 C.D.O.S. 7159 Issued July 27, 2000; published August 23, 2000. The Lawyers: For City of El Monte: William D. Ross, (213) 892-1592. For Commission on State Mandates: Gary D. Hori, legal counsel, (916) 324-4014.

Showing the willingness to veto bills for the second year in a row, Gov. Gray Davis rejected land use bills that ranged from high-profile measures to legislation that was nearly off the radar screen. Two project-specific bills that would have aided Indian casino development received vetoes in late September. Davis also rejected bills that would have, among other things, thrown a new obstacle in front of a controversial Ventura County subdivision; encouraged a 1.5 to 1 jobs-housing balance; and shifted the cost of environmental impact reports on incorporations to the state and counties. Davis did sign some land-use legislation, including a bill that allocates $25 million to begin purchasing salt marshes along San Francisco Bay and another bill that allows redevelopment agencies to pool affordable housing funds. The Indian casino bills were AB 2752 (Cardoza) and AB 1066 (Cardenas). The Cardoza bill would have blocked development of the long-planned Gregory Canyon Landfill in San Diego County. Bill supporters said the area is sacred ground to the Pala Band of Mission Indians, while some opponents said the tribe was more concerned about the landfill's close proximity to a planned casino. In his veto message, Davis focused on the project's history. In 1994, county voters amended the county's general plan to approve the landfill's location, and both a trial court and state appellate court upheld the ballot measure's validity. (See CP&DR Legal Digest, January 1999, June 1997.) "While I am sensitive to the concerns raised by the tribe in this case, I am also sensitive to the fact that the San Diego County voters approved the siting of this landfill, as Proposition C, by a 68% countywide vote in 1994," Davis said in his veto message. "I am loath to overturn a vote of the electorate and the decision of two courts of law." The Pala Band said it was devastated by the governor's veto. "If it was next to his church, I don't think he would have vetoed the bill," Pala Secretary Stan McGarr told the Los Angeles Times. The Cardenas bill would have facilitated construction of a Highway 50 interchange to serve a casino proposed by the Shingle Springs Band of Miwok Indians in western El Dorado County. The Shingle Springs Band's property is now landlocked (see CP&DR, July 2000). Davis said the "contractual arrangements" of AB 1066 might have merit, but he disliked lawmaker's "gut and amend" process. "Until the second to last day of the legislative session, this bill related to the display of slot machines at trade shows," Davis noted. Another bill vetoed bill was AB 1758 (Kuehl), which would have hindered the Ahmanson Ranch subdivision, a 3,000 home development approved eight years ago by Ventura County supervisors but which remains tied up in legal and regulatory processes. The bill would have authorized the Department of Fish & Game to grant immediate protection to any plant or animal species thought to be extinct, and required the plant or animal to be left alone while DFG determined the status of the species. Earlier this year, scientists found on Ahmanson Ranch the San Fernando spineflower, which was thought to have been extinct for 50 years. Davis called the bill unnecessary and noted that the San Fernando spineflower is moving though the state's endangered species listing process. Davis also complained that AB 1758 would waive public notice requirements, "possibly disenfranchising those most affected by the adoption of these heightened provisions." Housing legislation generally received a favorable reception in the Capitol's corner office, but Davis did veto a jobs-housing bill endorsed by the Smart Growth Caucus. Senate Bill 1642 (Figueroa) would have required the state and regional councils of government to seek a jobs-housing ratio of 1.5 to 1. Instead, the governor said the Interregional Partnership (IRP) state pilot project and the new Jobs-Housing Balance Improvement Account should be given a chance. The IRP project, which covers five Bay Area and Central Valley counties and numerous cities, provides financial incentives for local agencies that boost housing production (see CP&DR March 2000). The pilot program won approval earlier this year as AB 2864. The Jobs-Housing Balance Improvement Account bill (AB 2054) "cleaned up" AB 2864 by creating a fund for programs to encourage jobs-housing balance and transit-oriented developments. Assembly Tom Torlakson (D-Martinez) carried both bills, which Davis signed. Doesn't Pass the Gray Test The governor also vetoed: o AB 1960 (Machado), which would have split costs for an incorporation EIRs 75% to the state and 25% to the county in cases where incorporation failed. San Fernando Valley secession was behind the bill. Davis said incorporation applicants should be responsible for the expense. o AB 356 (Washington), which would have created an enterprise zone in the City of Compton. Instead, Davis signed SB 511 (Alarcon), which maintains the competitive process for establishing enterprise zones but awards bonus points based on economic need. o AB 2471 (Wayne), which specified information to be included in the Office of Planning and Research's quadrennial report on the state's environmental goals and policies. Davis called the bill's requirements expensive and said they should have been considered in the budget process. The Governor Likes It Davis signed the following bills: o AB 398 (Migden), which allocates money for purchasing Cargill Salt Co. land along San Francisco Bay. The bill specified $30 million, but Davis reduced that amount to $25 million. The bill is a companion to SB 1562 (Burton), which declares that purchase of 19,000 acres of salt flats shall be adequate to mitigate San Francisco Airport expansion into the bay. Davis had not decided on that bill as of press time. o AB 2041 (Dutra),which lets redevelopment agencies pool housing funds under a joint powers authority. The legislation appears to replace a now-expired, and little-used, law that allowed one redevelopment agency to transfer money to a different redevelopment agency. (Last year, for example, the wealthy City of Indian Wells gave $1.5 million in redevelopment funds to the poorer city of Coachella to build affordable homes.) In his signing message, Davis recognized some communities could use the legislation to shirk affordable housing responsibilities. But, he added, "Pooling can provide flexibility to get housing built." o AB 2430 (Wiggins), which extends the sunset date by three years on legislation that allows Napa County to meet 15% of its affordable housing requirements with construction of homes in cities. Bill supporters say a 1990 urban growth boundary initiative and the incorporation of American Canyon hamper the county's ability to meet its regional housing obligation. The Senate refused to approve Wiggins' plan to let the county meet 33% of its share with housing in incorporated areas. o AB 2848 (Firebaugh), which authorizes a lead agency for a transportation project to use a federal environmental impact statement (EIS) to avoid preparation of a separate state environmental impact report (EIR). The measure also requires the lead agency to notify the appropriate federal agencies of scoping meetings. o AB 950 (Thomson), which extends the sunset date by five years on legislation for a joint powers authority to provide more housing in order to retain Travis Air Force Base in Solano County.

The process of initiative and referendum is California's most peculiar institution. Other states rely on their legislators or other elected officials to hash out controversial public issues in lengthy, complicated and subtle debates. But Californians prefer the blunt instrument of the ballot box — a simple thumbs-up or thumbs-down from voters. We all know this is true at the state level, where voters are confronted on each ballot with a bewildering array of initiatives and bond issues. But it is also true on local ballots — and it is very specifically true about local land-use issues. Nowhere else in the nation do citizens flock to the election booth to vote on local planning and development issues as they do in California. In other states with easy access to the ballot — such as Washington and Colorado — no more than a handful of local land-use ballot measures has ever appeared. But California is different — vastly different. Ever since the California Supreme Court opened up the ballot to general plan amendments and zone changes 20 years ago, citizens — as well as developers and elected officials — have engaged in "ballot-box zoning" more frequently than anyone else in America. Using a database compiled over the years by CP&DR, an analysis of land-use ballot measures shows that there have been 660 measures on local ballots throughout the state since 1986. And there probably have been more because CP&DR has focused on covering measures on major primary and general election ballots, rather than on spring municipal ballots, which can be difficult to track. And what do voters want? Here's a summary: o Over the entire 15-year period, voters chose the slow-growth position 57% of the time. o Pro-growth positions are more likely to win during recession periods than during periods of prosperity. o Urban growth boundaries are becoming increasingly common — and exceptionally popular. Of 37 UGBs we counted on local ballots, 33 have appeared since 1995 — and so far only one has ever failed. (Eleven will appear on the November ballot.) o Perhaps most important, ballot-box zoning is still largely a coastal phenomenon in California. Ballot measures appear far more often in coastal areas than in inland areas — especially in coastal Southern California, and the East Bay and South Bay in Northern California. The UGB activity is even more concentrated around only three counties: Sonoma, Alameda and Ventura. Population Growth Equals Ballot Box Zoning Most of the ballot activity in the last 15 years has occurred in eight counties: the four Southern California coastal counties (Ventura, Los Angeles, Orange and San Diego), and the four counties that make up the East Bay and the South Bay in the San Francisco Bay Area (Contra Costa, Alameda, San Mateo and Santa Clara). These eight counties have seen 365 land-use ballot measures since 1986, or about 55% of the statewide total. During this same period, these eight counties grew in population by about 4 million people, or 53% of the statewide total. Some inland counties also added large population numbers since 1986, including Riverside, San Bernardino, Sacramento and Fresno. But they did not have nearly as many ballot measures. The undeniable conclusion is that land-use ballot measures are deeply entrenched as a policy tool in California's coastal areas — but not in the inland areas — and they occur most frequently in those coastal areas with the greatest numerical increase in population growth. By the way, that 57% pass rate over 15 years holds fairly consistently across California's regions; it's 59% in the Bay Area, 58% in the five-county Southern California metro area, and 60% even in the Central Valley. The exception is San Diego, a county that has had more ballot measures than any other in the state (80) but also the lowest success rate for slow-growthers (48%). In the City of San Diego, for example, voters have faced 14 pro-growth measures in the last 15 years and have passed eight of them — including the new Padres ballpark, an expansion of the convention center, a height limit exemption for Sea World, and the approval of several large-scale residential projects. As another example, Encinitas voters have faced four slow-growth proposals (two in 1988 and two in 1994) and rejected them all. Economy Is A Factor The analysis over time shows some interesting trends as well — and intersects with geography to a certain extent. A previous analysis of growth management in California by researchers Madelyn Glickfeld and Ned Levine found that growth management is sensitive to the economy — that is, slow-growth activity is likely in response to good times (often lagging somewhat behind the actual economic cycle). The CP&DR analysis shows the same thing. Ballot measures spiked in 1990, fell to almost nothing in the years from 1993 through 1995, and have strongly rebounded since then. With almost 70 measures overall (and 50 on the November ballot alone), 2000 will be the most active year for ballot-box zoning in California in a decade. Election results are tied to the economy as well. As the accompanying chart reveals, the slow-growth side beat the pro-growth side overall every year from 1986 to 1993, no matter how many measures were on the ballot. The pro-growth side won in the bleak economic year of 1994, and it was neck-and-neck until 1998, when the slow-growth forces emerged victorious again. This year, curiously, the pro-growthers won the March ballot, but the huge November ballot could well see a reversion to the previous trend. When you slice the data over time and by region, it turns out that regional differences become a bit stronger. In the active period of the late ‘80s, when slow-growth measures first migrated to Southern California, the slow-growthers won all over the state. In the recession period of 1991-1995, the slow-growthers still won in most places — but they lost in San Diego, and their margin of victory in the Bay Area was so slim that the statewide slow-growth pass rate tanked. (Interestingly, the pass rate for slow-growth measures during this period was 53% in metropolitan Los Angeles, compared with only 43% in the Bay Area.) From 1996 through the March election, pro-growthers actually prevailed on balance in L.A. and San Diego; however, there was far more ballot activity in the Bay Area, where slow-growthers did well. During the recession, the five-county L.A. area and the Bay Area each saw about 40 ballot measures. During the late '90s the L.A. number stayed the same, but the Bay Area number grew by 50%, to about 60 measures. During the last five years, we have also seen ballot measures migrate inland somewhat in both Northern and Southern California. During the early ‘90s, ballot activity in the Bay Area was highly concentrated in San Francisco, Santa Mateo, Santa Clara and Contra Costa counties. More recently, we've seen more activity in Sonoma County, in the commuter portions of the Central Valley, and in the highly contentious foothill county of El Dorado. In Southern California, measures moved outward as well, from L.A. and Orange counties to Ventura County and San Bernardino County. Growth Boundaries Usually Win Ventura County ballot activity is up, of course, because the county has become home to the "SOAR movement" — an approach that imposes or reaffirms local urban growth boundaries that cannot be changed without a vote. And the SOAR/Urban Growth Boundary movement represents a fast-growing and popular approach to ballot-box zoning. According to CP&DR's figures, 37 such measures have appeared on local ballots around the state since 1986. Only four of those measures appeared prior to the City of Ventura SOAR election in November of 1995. All the rest have appeared since then — including 11 on the ballot in November of 2000. The numbers suggest two important points about UGB/SOAR-style measures. First, they are extremely popular. Of the 25 measures that appeared from 1990 through March of 2000, only one failed — the SOAR proposal in Santa Paula in 1998. Secondly, voter-controlled growth boundaries are even more geographically compressed than land-use ballot measures as a whole. Twenty of the 37 measures have appeared in just two counties — Ventura and Sonoma — which are the only counties in the state that have fully embraced the idea that a voter UGB must be in place in every city and in the county as well. Six more have appeared in Alameda County. Although UGBs do appear to be moving to smaller communities, these are mostly along the coast. The only non-coastal locations where UGBs have been on the ballot are along the Interstate 80 corridor leading from the East Bay to Sacramento. The next recession might slow things down, but it's not likely to reverse the long-term trend toward more and more ballot-box zoning in California. There is little question that population growth will move inland in the next few years. Recent ballot action in such places as El Dorado County, Tracy and Modesto suggest that some fast-growing inland areas are beginning to catch ballot-box fever. But the culture gap between the coast and inland regions remains strong in California. Thus, ballot-box zoning may remain mostly a coastal phenomenon in the years ahead. For the complete ballot measure analysis, please see our website at www.cp-dr.com

Tejon Ranch Company has received approval from the Kern County Board of Supervisors for the Tejon Industrial Complex, a 320-acre business park along I-5 at the northern base of the Grapevine. Although it is a 45-mile drive from the outskirts of Los Angeles, the project appears to tie Kern County closer to metropolitan Southern California, a concept that Tejon Ranch encourages. Tejon Ranch owns 270,000 contiguous acres (422 square miles) in southern Kern and northern Los Angeles counties, making it one of the state's largest private landowners. The company sees Kern County as an extension of the Los Angeles basin, said Philip Adams, vice president of real estate development for Tejon Ranch. Besides the Tejon Industrial Complex, which has drawn great interest from companies looking for large distribution centers since Kern County approved it in the spring, Tejon Ranch has other blocks of land on the valley floor that it is willing to make available for industrial development. Maybe even more importantly, Tejon Ranch earlier this year announced that it had signed an agreement with three major developers (Pardee Construction, Lewis Investment and Standard Pacific) to create a 4,000-acre master-planned new town in the Tehachapi Mountains near I-5 and Highway 138. And the company talks of building a resort community around Tejon Lake, northwest of the proposed new town. The fact that the industrial park site is roughly 20 miles from the potential new town demonstrates how vast Tejon Ranch's holdings are — and how big a player it could become in the urban development game. For more than a century, Tejon Ranch has been a farming and cattle enterprise. But in recent years the company has hired executives with development expertise, such as Adams and CEO Richard Stine. Now, the company's development plans are becoming public. "They want to go up and over the Grapevine, all along the I-5 corridor," said Mary Griffin, conservation chair for the Kern Audubon Society, which opposed the industrial complex. "I don't want to see that. I want the scenic beauty. I want legitimate agriculture and oil." Earlier this year, Kern County supervisors certified an environmental impact report and approved a general plan amendment, zone change, precise plan, development agreement and parcel map for the Tejon Industrial Complex. The site, along I-5 a couple miles south of the Highway 99 split, had been zoned partly commercial/industrial and partly agricultural, and has served as grazing land. Now it is all zoned M2, a mid-range industrial designation, said Dave Rickels, Kern County special projects planning division chief. The zoning permits a number of light and moderate manufacturing uses, but Tejon Ranch appears mostly interested in warehousing and distribution operations. Tejon Ranch intends to build 3.5 million to 5 million square feet of industrial space at the complex, Adams said. The development agreement locks in place for 10 years all existing development standards. Thus, if the county alters, for example, landscaping or road rules, Tejon Industrial Complex will be exempt. Kern County officials were accommodating because they are interested in the jobs that the industrial park will provide. The county's unemployment rate has remained in double figures during the recent economic expansion. At least 500 people, possibly many more, are expected to work at the industrial park. A major furniture retailer, IKEA, has already signed up for a 1.8-million-square-foot distribution center, which would be one of the state's largest buildings. Tejon Ranch is talking with a number of other companies, all of which want at least 390,000 square feet, Adams said. The advantages for shippers are numerous: the site is along an interstate highway; there will be a freeway interchange designed specifically for trucks; nearby Highway 99 provides access to the fast-growing Central Valley; there is vacant land available for expansion; restaurants and truck stops that Tejon Ranch developed earlier lie next to the site; development is less expensive and employee wages are lower in Kern County than in metropolitan Los Angeles. Plus, traffic congestion in the Los Angeles basin means that it does not take any longer to haul freight from the Long Beach and Los Angeles ports to southern Kern County than to distribution centers in the Ontario and Fontana area, Adams said. "The fact that you are seconds off the freeway makes a huge difference in truck time," Adams added. "I think this is going to be one of the major distribution sites in the United States." That is precisely what worries Griffin and other environmentalists. The industrial park will affect three creeks that are vital for wildlife, she said. The bigger issue, though, is leapfrog development. Bakersfield is nearly 30 miles away and there are very few homes within 20 miles of the industrial park site, so hundreds of workers will have to drive a good distance to the new jobs. Yet Bakersfield has many infill development opportunities, and the area's economically depressed small towns — such as Taft, Arvin, Shafter and Delano — could use jobs, she said. "We don't need this leapfrog stuff. It will be the slums of tomorrow — a new town for L.A.," Griffin charged. The county did have to adopt overriding considerations because of air quality impacts from so many people commuting long distances to work, Rickels said. Such overriding considerations are not uncommon because the south valley's air quality is so poor. "The simple fact of the matter is there are no residential communities in which people could live. There is Frazier Park about 20 miles away, and Arvin and Bakersfield about 25 miles away," Rickels said. But it is the location that makes the industrial project feasible, he said. Tejon Ranch's Adams agreed. Building the project in Bakersfield is not realistic because it is 30 to 40 minutes farther from Los Angeles. The Tejon Industrial Complex site abuts the San Emidio Ranch, where Kern County approved a 9,400-acre subdivision in 1992 (see CP&DR, October 1992, CP&DR Legal Digest June 1993). The San Emidio subdivision, proposed by the late San Fernando Valley developer Dale Poe, has never gone forward although the specific plan remains on the books, Rickels said. The project would need additional environmental review and zone changes, he said. "At least in theory, someone could reactivate that development," Rickels said. "They would almost have to start from scratch. … They would have to readdress the water situation, which was one of the big sticking points on that development." Contacts: Dave Rickels, Kern County planning department, (661) 862-8600. Mary Griffin, Kern Audubon Society, (661) 871-7304. Philip Adams, Tejon Ranch Company, (661) 248-3000. Tejon Ranch website: www.tejonranch.com

It seems like a grand time for urbanists. Downtowns across California are dusting off their dancing shoes and, in some locations, absolutely cutting up rugs. This is particularly the case in older downtowns that have enough amenities – the sort that neotraditionalists like to copy — to draw recreational use. In the best cases, the workaday downtowns of yore have evolved into the work/play/live spaces of today. San Francisco, Santa Monica, and San Diego may provide the best examples. In each case, office, residence and playground all collaborate in one setting — with each also offering spectacular ocean and bay views. One of the very industries that has facilitated the return of downtown, however, has also caused problems for some revitalizationists — telecommunications. It's accepted as fact that telecoms and the array of voice, data, image transferring and general Internet services these telecoms provide have decentralized business and the way work gets done. Therefore, one might expect that these communications trends would further weaken downtowns, with their fundamentally central place-theory pasts. But, in fact, the e- and I-economy has in many instances fueled a return to downtown for some business sectors, particularly those that can take advantage of niche-space and that favor mixed-use, edgy urban settings. So in that way, the growth of the e-economy may in fact complement the resurgence of the some central cities. Still, there is no denying that numerous interactive ingredients are needed to pull off the successful downtown recipe. One of the main appeals to many industries now attracted to downtowns is the strength of the center city's telecom infrastructure. Many a T-1 and fiber optic cable line converge inside telephone switching stations of the past. This has led to a new demand for an old kind of big box, now called the telecom hotel. These hulking multi-story warehouses — once festooned with the corporate logos of Pacific Telephone and Telegraph or General Telephone — are now commonly devoid of telecom corporate logos. The street-level floors remain sealed like in the old days, but now the parapets are festooned with relay antennae. This new configuration — with essentially the same old use — is causing some hand-wringing in urban design circles these days. Apparently, that's because there is a speculative real estate industry forming around telecom hotels – one with the adrenaline and speed of the Internet itself. This new development opportunity, according to a recent Wall Street Journal report, is fueled by hopes of 20% lease-return profits – double the office market standard. But telecom hotels, according to the neotraditionalist argument, threaten pedestrian life and the quest for a lively, multi-use downtown. Apparently, a few California cities have downtowns with prices that are soft enough to attract these speculative developments. And that has some city planners sweating. Sacramento and Los Angeles are evidently the most vulnerable to the speculators – both cities still lament that their downtowns haven't yet revived like some other more storied downtowns elsewhere in the state, and are consequently touchy about welcoming the wrong uses. A Sacramento Bee editorial last month urged already-anxious city planners to quickly figure out some regulations to block telecom hotels, before downtown Sacramento ended up with more servers and routers than tourists and conventioneers in the capital's downtown hotels. And Los Angeles, with tens of historic but underutilized office buildings, is in the early stages of studying such ordinances. The concern in the two cities may be partly a result of misguided nostalgia. If the downtown relic buildings in either Sacramento of L.A. were actually viable for other uses, the telecom hotel speculators would surely have a run for their lease money – and therefore would set up in cheaper digs on the periphery. But if telecom hotels were successfully located in these downtowns, couldn't that be turned to a city's competitive advantage? Couldn't these telecom nerve centers be followed by dot-coms and their creative, footloose staffs, thereby reinvigorating these city centers? What the neotraditionalist-leaning planners may be overlooking is that the downtowns of yesteryear were vibrant places because they were diverse workaday hubs — not the exclusive domains of office workers, dinks living in spare flats, and scone bars on the street frontage. Sure, you could get a cup of coffee (albeit not a double latte with nonfat milk, no foam) in yesterday's humming central city, but you could also be close enough to throw a stick at sweatshops, printing operations, and other businesses that actually made things. Today's workaday hub comes with the snap crackle and pop of electronic communication. Downtown Santa Cruz now hosts Cisco Systems engineers. San Jose boasts Adobe Systems's vertical campus. These are the factories where things are made – or at least processed – today. And just as yesterday's downtown manufacturers relied on trolleys, sewer lines, roads and sidewalks, today's e- factories need telecom hotels to really sing. Telecom hotels just might represent a new and essential urban infrastructure, without which some downtowns may again lose a competitive advantage. And, after all, sewage lift stations don't have ground-floor retail either. Stephen Svete, AICP, is president of Rincon Consultants, Inc., a Ventura-based consulting firm.

The November 7 election is shaping up as a potential landmark in ballot-box planning in California. Voters are scheduled to decide an even 50 local ballot measures, the most since the November 1990 election. Although ballot measures are concentrated in the Bay Area and along the Southern California coast, the collection of cities and counties where land-use measures will appear is as diverse as California itself. Lassen County voters will consider a mountain resort and subdivision. Monterey County will decide a specific plan amendment to allow the Pebble Beach Company to build a golf course, hotel and worker housing. Voters in the desert town of Yucaipa face a referendum on a power center. No fewer than eight separate general plan amendments confront the electorate in the northern San Diego suburb of Escondido. All this ballot-box planning is a reaction to the lack of good land-use planning, said Anthony Lettieri, president of the California Chapter of the American Planning Association. Representatives amend adopted plans too often, and fiscal considerations become foremost, he said. Thus, people demand to vote on further changes. Like many professional planners, Lettieri worries about the consequences of land-use decisions made in the election booth. The APA would rather see a comprehensive planning process with extensive public involvement. "It becomes a sales game rather than a real, true look at what our communities should be," Lettieri said. But AnnaLis Dalrymple of the Greenbelt Alliance, which backs two major Bay Area growth-control initiatives this fall, said the movement is about "democratizing land use." She said people in Sonoma County, where the Alliance supports an initiative to freeze most rural area general plan designations, care about the general plan's integrity. "I just know that people are interested and want to weigh in on that. They don't feel like they have as much say as they would like," Dalrymple said. This year's collection of ballot measures covers just about all the bases. Among the measures on this fall's ballot: o Large-scale growth controls, such as the Save Open space and Agricultural Resources initiatives in San Luis Obispo County and Paso Robles. The measures require voter approval before any land designated agricultural, open space, rural or rural residential can be rezoned for more intensive uses. The initiatives are similar to the SOAR measures approved by voters in Ventura County and six of its cities since 1995. o Project-specific initiatives, such as a developer-backed measure to alter Sacramento County's urban services limit to allow a 3,000-lot subdivision near Rancho Murrieta. o Advisory measures, including the Lassen County initiative and a San Francisco "declaration of policy" that counters a major tourism proposal for Pier 45. The latter, placed on the ballot by the Board of Supervisors, calls for Pier 45 to be developed as a nonprofit, educational, public facility related to maritime activities. o A charter amendment in San Marcos that would require zoning to match the general plan. o Follow-ups to previous ballot measures, such as a proposal that would allow the City of Ventura to build a sports park on cropland. o Housing caps, such as an initiative to reduce building permits by half in Tracy, where a similar measure barely failed in March. o A development agreement in Lathrop that would allow a developer to build 8,500 homes before pursuing the theme parks that it had promised to build first. o A plan to purchase open space in fast-growing Placer County. Voters will decide on a quarter-cent sales tax and an advisory measure (which becomes moot if the sales tax fails) that allows them to earmark the estimated $8.3 million in new revenue for the Placer Legacy Open Space and Agricultural Conservation Program. o The latest CAPP (Citizens Alliance for Public Planning) initiatives, this time in Danville and Clayton. The measures would require voter approval for developments of at least 10 homes. Similar measures failed one year ago in San Ramon, Pleasanton and Livermore. Bay Area Growth Controls Two of the most closely watched contests this fall regard countywide measures in Sonoma and Alameda counties. In Sonoma County, a coalition of environmental groups support the Rural Heritage Initiative, which would freeze existing land uses and building rights in unincorporated rural areas for 30 years. Nearly all changes to rural land designations, which cover about 80% of the county, would require voter approval. Dalrymple, North Bay field representative of the Greenbelt Alliance, said initiative backers are only reinforcing an existing approach to growth. Seven of Sonoma County's nine cities have voter-approved urban growth boundaries (an eighth is on the ballot this November) and the county's general plan steers development to existing urban areas. But, she complained, the county general plan can be amended for particular projects on any Tuesday with only three votes on the Board of Supervisors. "What we are working at doing is preserving the plan that has worked so well," she said. "We're not saying we don't need housing. What we're about is where we grow and how we grow." Backers of the Rural Heritage Initiative used Napa County's Measure J from 1990 as a model. That landmark initiative, which withstood review by the State Supreme Court, was a general plan amendment that reaffirmed agricultural land-use designations throughout Napa County for 30 years and required a vote to change those designations. But Tim Smith, a three-term Sonoma County supervisor, called the Rural Heritage Initiative unnecessary and poorly written. Since 1978, the Board of Supervisors has closely followed the general plan that is so popular with Rural Heritage Initiative advocates, he said. The county has even created its own style of sprawl-halting urban growth boundaries by freezing zoning next to cities' existing urban growth boundaries, he added. "It is assuming that those of us who have kids are raising a bunch of blithering idiots who can't take care of the land like we have," Smith said. "I think there's a certain arrogance to it." In Alameda County the Sierra Club qualified an initiative for the election, only to have the Board of Supervisors place a competing measure on the ballot. The Sierra Club initiative would draw a tight urban growth boundary around communities in eastern Alameda County's Tri-Valley area and near Castro Valley. The Sierra Club initiative would block development in North Livermore, where city and county planners are working on a proposal for 12,500 new homes in exchange for protecting 8,000 acres of farmland and open space (see CP&DR Local Watch, June 2000). The alternative, called the "Vision 2010" measure, would draw a larger urban growth boundary that allows North Livermore and other potential developments to go forward. Dick Schneider, conservation chairman for the Sierra Club's San Francisco Bay Chapter, said that getting a competing measure on the ballot is a developers' tactic. But Valerie Raymond, a former Alameda County supervisor and leader of the Vision 2010 effort, said the group announced its intentions for a ballot measure with the release of its vision report in October of 1999, before the Sierra Club began circulating petitions. The Vision 2010 measure resulted from a year-long process that involved many interested parties in the Tri-Valley area. The Alameda County general plan is composed of four area plans. The Sierra Club initiative would amend the plans for the east county and the Castro Valley areas. However, the large majority of Alameda County voters lives in a heavily urbanized strip of the west county that stretches from Berkeley to Fremont. "We need to explain why this is of interest to them," Schneider conceded. "People on the west side have an interest in further automobile-dependant suburban development." But Raymond said the east county communities of Dublin, Pleasanton and Livermore, which have permitted large — and growing — business parks, must provide housing. "It seems to me if you are going to invite people to work in your community, you have a responsibility to at least provide an opportunity for them to live there," Raymond said. Raymond, an environmental vote while on the Board of Supervisors during the late '70s, urged the Sierra Club to look at the bigger picture. "Where will growth go if it doesn't go here? I couldn't say in good conscious that it makes more sense to build this in the Central Valley than in North Livermore," she said. But the Sierra Club's Schneider said the emphasis should be on redeveloping the urban west county, not on further suburban development of pastures and canyons to the east. Last-Minute Additions An initiative in San Clemente is likely the last to make the ballot — after earlier getting blocked. On September 18, the Fourth District Court of Appeal overturned a lower court ruling that prevented the Residential Building Permit Moratorium Initiative from appearing on the ballot. In August, Orange County Superior Court Judge Tam Nomoto Schumann ruled that the initiative was illegal. Proponents appealed to the Fourth District, which did not decide on the initiative's merits. The court merely ordered the initiative to appear on the ballot, even though the county's election deadline passed five weeks earlier. "Cosmetic imperfections, intemperate choice of language, or even tension between the proposed initiative and other laws is not enough to justify a court taking away the people's right to vote on a proposed measure," Presiding Justice Davis Sills wrote in an unpublished opinion. "Given the complexity of the issues involved and the short time within which to act, the Superior Court wrongly attempted to determine the validity of the proposed measure before the election." The initiative would bar most housing construction until the city built a major north-south thoroughfare. Currently, the perpetually clogged I-5 is the major north-south route in San Clemente. Proponents want to halt construction of three already-approved projects that would add more than 5,000 new homes to the coastal city until a new boulevard is built. Whether the measure could apply to the already-approved developments is unclear. City officials and developers say the initiative is both illegal and unnecessary. They contend the developer-funded road system will be able to handle increased traffic. Another late addition to the ballot was San Francisco Mayor Willie Brown's alternative to an initiative aimed at slowing office development. Brown's alternative became public only days before the mid-August ballot deadline. Known as "Daughter of Proposition M," the 1986 measure that capped new office construction at 950,000 square feet annually, the initiative would suspend office development in the Bayview-Hunters Point District and parts of the South of Market (SoMa) and northeast Mission districts. It would prohibit new offices in other parts of the SoMa and Mission districts, and would limit the size of projects in some other areas. Brown contends the initiative would harm economic growth. His alternative would allow some first-year exemptions to the 950,000-square-foot limit, impose a two-year moratorium on office development only in the Mission and Potrero Hill districts, and double development fees. At the heart of the fight are dot-com offices. They have moved into lower-class districts, such as Bayview-Hunters Point and the Mission — displacing mom-and-pop businesses and poor residents, and helping gentrify some of the city's roughest neighborhoods. As Promised, More Elections Elsewhere, voters are dealing with the effects of earlier growth-control measures. Two years ago, Escondido voters backed Proposition S, which requires voter approval of general plan amendments. This result is eight separate ballot measures this November. Four of them would allow industrial developments of 3- to 6-acres apiece on what is now residential land, and four others would increase residential zoning density for certain housing projects. Escondido Mayor Laurie Holt Pfeiler said people voted for Proposition S to gain a louder voice in the growth debate. But she is concerned that the initiative hampers officials' ability to plan, especially when a developer might need to wait 18 months or longer for an election. "It takes away the ability of the local elected officials to make the decisions for the community. I don't think the public has the time to understand the subtleties and all of the details of a general plan amendment," Holt Pfeiler said. But Proposition S proponents counter that Escondido's initiative does not hurt planning because only amendments to an adopted general plan require a voter approval. If officials follow the plan, there is no need for an election. Roger Caves, coordinator and professor of the graduate city planning program at San Diego State University, said ballot box approaches such as Escondido's are not going away any time soon. "Part of it is people wanting to participate in the democratic process," Caves said. "Others are frustrated. They see ‘the way it was' going by the wayside. Part of it is people's lack of trust in their public officials." Contacts: AnnaLis Dalrymple, Greenbelt Alliance, (707) 575-3661. Tim Smith, Sonoma County supervisor, (707) 565-2241. Dick Schneider, San Francisco Bay Chapter, Sierra Club, (510) 482-1553. Valerie Raymond, Tri-Valley Vision 2010, (925) 447-4027. Lori Holt Pfeiler, Escondido mayor, (760) 839-4638. Anthony Lettieri, California Chapter, American Planning Association, (619) 238-4241. Roger Caves, San Diego State University, (619) 594-6472.

It's the oldest contract in the world: I'll scratch your back, if you'll scratch mine. The Walt Disney Co. recently worked a variant on this contract when it agreed to help the City of Anaheim obtain attractive interest rates for nearly $400 million in public improvements around Disneyland and the city's other big draws. On its face, the deal looks good. The town gets fixed up, and both the city and the theme park make money. Why would I care that The Walt Disney Co. was able to obtain at least $108 million, and possibly more, in financing for stuff that benefits Disney almost exclusively, but won't cost Disney anything but a smile and some paper guarantees? Here's the deal in a nutshell: The City of Anaheim raised a total of $395 in revenue bonds (some taxable and some not). Disney sweetened the deal by letting the city use its AAA corporate bond rate — allowing the city to borrow at 6.75% for the tax-free revenue bonds and 8.75% for the taxable. The annual payments — which I calculate to be about $28.1 million — comes entirely from sales tax, hotel tax and increases in Disney's property taxes above a base year. (Disney has a sweetheart deal in Anaheim that exempts the company from paying taxes on either admissions or parking.) To help generate the money for debt service, the city added another 3 percentage points to its hotel tax, and anticipates those revenues growing by 2% annually. In return for its investment, the city expects to receive an impressive $50.6 million in combined tax revenues by the year 2008, about $36 million more than the city had expected to get without the landscaping and new infrastructure. It is enough to pay off the bonds and still add millions to the general fund every year. Disney seemed like a model corporate citizen in 1996, when the entertainment megalith shook hands with Anaheim officials. The undertaking would beautify the streets surrounding Disneyland, the Anaheim Convention Center and Edison Field (formerly known as the Big A.) As anyone who has ever visited Disneyland before this year knows, Anaheim's commercial strips were throbbing eyesores. Mile after mile of flashing signs offered motorists fantasy motels and themed fast-food on their interminable journey from I-5 to the Magic Kingdom. Anaheim officials knew that the tacky streetscape was an obstacle on the road toward making Anaheim a conventional capital on a par with Las Vegas, Atlantic City, and the city's arch-rival, Orlando — the upstart city that had stolen much of Disneyland's thunder and Disney's corporate investment for two decades. The solution was the creation of two contiguous tourist districts, known respectively as Anaheim Resort and Disney Resort. The latter contains the company's 500-acre holdings in the city, while Anaheim Resort comprises the convention center, the arena, and two big entertainment centers that the city has planned but so far has been unable to build. Within the tourist districts, the city removed all the garish signs from hotels and restaurants, replacing them with subdued monument signs that sit on the ground. Telephone and electrical wires have been "undergrounded." Twenty-foot wide promenades with landscaping on both sides replaced narrow sidewalks. Beyond the landscaping, the bond financing paid for a whole bunch of infrastructure for Disney, including a 10,000-space parking structure, a vehicular "flyover" (otherwise known as a bridge) that carries motorists from the freeway exit over busy Ball Avenue and into the parking garage; a new pedestrian bridge on the newly created street known as Downtown Disney; and a lowering of Disneyland Drive by 15 feet (!) so that it can pass beneath a pedestrian bridge that connects old Disneyland with the new theme park. Disney also benefits from the widening of Interstate 5 and a new, free offramp leading to Disneyland Drive. This was financed by a separate issue, and I am not quibbling with these costs, because the same street serves both the Anaheim Convention Center and Disneyland. Still, the bond issue covers many items that appear to benefit Disney almost exclusively. Consider the $90 million parking structure, $5 million pedestrian bridge over Disneyland Drive, and the $13 million "flyover" that connects an interstate highway with a the parking garage. In short, the bond issue funded Disney's plan to make its California franchise look and feel like Orlando: Cars roll off the freeway almost directly into Disney Resort, where tourists can shed some unwanted cash before going back from where they came. Conveniently, Disney "guests" can do all of this without stepping foot in non-Disney Anaheim. After you park your car, a shuttle picks you up and takes you to either the theme parks or your hotel. Like the Patrick McGoohan character in the old TV series "The Prisoner," a present-day Disneyland "guest" (I almost said captive) has to work pretty hard to get away from The Mouse: If you want your car, you have to shlep back to the garage and navigate your way out of the giant structure onto unfamiliar streets. Or you can catch a taxi. So, am I being a spoilsport in questioning whether it was appropriate to spend public funds to absorb almost the entire cost of Disney's Orlando-ization of Anaheim? Some folks would cry corporate welfare, but such talk is considered quaint nowadays. Other folks would say that the cost was worth it to give Anaheim a future. So what if Disney got public funds to make itself into a self-contained tourist-capture machine inside of Anaheim? Since when do you spend public money on the public realm? Disney scratched Anaheim's back as promised, but I can't shake the notion that Disney ended up getting its back scratched far more than did the city. They don't call it the Magic Kingdom for nothing.

The massive project to prevent the Santa Ana River from flooding heavily urbanized portions of San Bernardino, Riverside and Orange counties continues to move forward. Orange County is purchasing property in preparation for raising the existing Prado Dam near Chino. Meanwhile federal officials are wrestling with the environmental affects of an already completed dam farther upstream, a dam that environmentalists say will harm three endangered species. The U.S. Army Corps of Engineers' Santa Ana River Mainstem Flood Control Project has been under consideration for about 30 years. The $1.4 billion project began making major strides 11 years ago when the Corps signed an agreement with the counties of Orange, Riverside and San Bernardino. The four entities are splitting the cost, with the federal government paying about two-thirds of the expense, and Orange County providing the largest local share. Corps engineers said the Santa Ana River — which flows through Colton, Riverside, Norco, Anaheim, Santa Ana, Orange, Fountain Valley, Costa Mesa and Huntington Beach — posed the greatest flood risk in the western United States. The Corps estimated that a serious flood could threaten 3 million people and cause $15 billion in property damage. Tens of thousands of homes lie within the floodplain, and homeowners have had to pay for expensive flood insurance. When complete, the Mainstem project will provide at least 200-year flood protection, whereas the previous facilities did not provide even 100-year flood protection for large areas. The project consists of seven interdependent features: o Seven Oaks Dam near the San Bernardino County city of Highland. The 550-foot-tall, $420 million dam is complete, but discussions continue about whether the dam will create a full-time reservoir or only provide flood control functions. The dam could hold about 145,000 acre feet of water. o Mill Creek Levee reinforcement in San Bernardino County. This 2.4-mile concrete wall, atop an existing levee, is in place. o Oak Street Drain in Corona. The 3.3-mile channel from an existing debris basin to Prado Dam is also complete. o San Timoteo Creek channelization. A new sediment detention basin and channel through the cities of Loma Linda, Colton, Redlands and San Bernardino is nearing completion. o Lower Santa Ana River channelization. This 23-mile project involves widening, upgrading and, in some instances, relocating existing channels. Construction of jetties and a straining dike at the mouth of the river between Huntington Beach and Newport Beach, and various bridge improvements are also part of this effort. The work is nearly finished. o Prado Dam enlargement. The dam, near the City of Chino, will be raised 28 feet, and levees, dikes and the spillway will be upgraded. At an estimated $250 million, this is the second most expensive part of the flood control project. o Santiago Creek Reservoir. The Corps will turn an old gravel pit in eastern Orange County into a reservoir, and will improve creek channels. The overall project is scheduled for completion in 2006, according to Corps spokesman Herb Nesmith. The project also involves acquisition and/or maintenance of a few thousand acres of habitat in various places — including 92 acres of salt marsh restoration, maintenance of 1,100 acres of floodplain below Prado Dam, and 764 acres of habitat below Seven Oaks Dam for the Santa Ana River woolly star, an endangered plant. While the Corps argues that the environmental mitigations are extensive, environmentalists are not satisfied. The Center for Biological Diversity sued the Corps over Seven Oaks Dam's impacts on three endangered species — the woolly star, the slender-horned spineflower and the San Bernardino kangaroo rat. The U.S. Fish & Wildlife Service raised the species issues six years ago, and the Center threatened to sue three years ago, but the Corps "essentially dragged their feet until the dam was built," said Noah Greenwald, a conservation biologist for the Center. In August, the Corps issued a biological assessment for the dam, which the Fish & Wildlife Service is now reviewing, said P.J. White, branch chief for the Service's San Bernardino County office. White said he was still going through the document. His agency has until about the end of the year to issue its "biological opinion," which could lead to further mitigations. The status of the kangaroo rat has declined since the federal agency listed the species as endangered about three years ago, White said. "We're very concerned about the kangaroo rat and certainly the Seven Oaks Dam affects the largest population of the rat that is in existence," White said. Greenwald said the Corps' latest biological assessment basically proposes the same mitigations as contained in reports from the late 1980s. The two rare plants and the kangaroo rat are all dependent on flooding, which the new dam will prevent, he said. "I would like to see flood-like conditions re-created as much as possible in the wash," Greenwald said. The Corps also should purchase mining rights in the wash and acquire habitat elsewhere. These mitigations, however, are expensive. Greenwald said the entire project is "symptomatic" of Southern California's approach to flood control, which so often replaces biologically diverse habitat with concrete and rip-rap. Meanwhile, preparations for the Prado Dam enlargement continue, according to Elayne Rail, chief of real estate and financial planning for the Orange County Flood Control District. Officials are still refining project details and completing environmental documents, including a biological opinion by the Fish & Wildlife Service, she said. Once that work is complete, the county and Corps should be able to sign a project agreement, probably in January, she said. Once an agreement is in place, work would begin almost immediately on the $250 million project, for which the county and the Corps will split costs equally. Rail estimated the Prado Dam construction would take five to six years. Contacts: Herb Nesmith, U.S. Army Corps of Engineers, (213) 452-3921. P.J. White, U.S. Fish & Wildlife Service, (760) 431-9440. Noah Greenwald, Center for Biological Diversity, (520) 623-5252. Elayne Rail, Orange County Flood Control District, (714) 834-6000.

Building on an earlier case, the Fourth District Court of Appeal has expanded protection of low-quality coastal wetlands. Overturning a trial judge, the court ruled that all wetlands in California's coastal zone — even those not located in "environmentally sensitive habitat areas," (ESHAs) — should receive the same level of legal protection whether they are pristine or degraded. Last year, the same court ruled that coastal wetlands' quality could not be taken into account in determining whether wetlands should be protected if they are located inside ESHAs, which are designated by the Coastal Commission. (Bolsa Chica Land Trust v. Superior Court, 71 Cal.App.4th 493; see CP&DR Legal Digest, May 1999.) The new decision extends the same rule outside of ESHAs. "The same reasoning applies here, as the statutory scheme protecting wetlands in this regard does not differ in any meaningful fashion from that protecting ESHAs," wrote Justice Don Work for a unanimous Division One of the Fourth District. "… s we explained in Bolsa, the failure to protect the low-quality wetlands would encourage developers to find threats and hazards to all wetlands located in economically inconvenient locations." The Fourth District concluded that the record did contain substantial evidence that wetlands exist on flood-prone property along the Encinitas River owned by horse ranchers Christopher and Gregory Kirkorowicz. The Coastal Commission had used this finding to overturn a decision by the Encinitas City Council that would have permitted the Kirkorowiczes to expand their stables even though 0.44 acres of apparent wetlands would be filled in. The court ruled that biologist Vincent N. Scheidt, of Dudek & Associates, who was retained by the City of Encinitas, correctly used both the Coastal Commission's Interpretive Guideline and the U.S. Fish & Wildlife Service's 1989 wetlands delineation manual in determining that wetlands existed. The property owners claimed that even though some indicators of wetlands existed — and even though the property floods on a regular basis — Scheidt had not correctly measured the property's characteristics against the Service's classification system. But the court rejected the property owners' assertion that the wetlands were not worthy of protection because they are degraded and not located in a Coastal Commission-designated ESHA. Justice Work concluded: " ection 30233 limits development of all wetlands regardless of their quality." Work also noted that Encinitas's coastal land use policies (contained in the city's Local Coastal Program and approved by the Coastal Commission) declare that there shall be no net loss of wetlands acreage or resource value. In fact, the policies encourage a net gain without distinguishing among the quality of resources. "Simply stated," Work wrote, "in determining whether a wetland is protected under the Coastal Act and the LCP, the quality of the wetland is essentially irrelevant." Work also noted that in this particular case, the small, degraded wetlands holds the potential to help buffer the larger and higher-quality wetlands around the adjacent San Elijo Lagoon Preserve. The case began when the Kirkorowicz brothers, who already board horses on their flood-prone 21-acre property along the river, sought to add new facilities, including a stable, storage areas, and a driveway. The project required 8,700 cubic feet of fill. In a report to the city, biologist Scheidt determined that the project would result in a direct loss of 0.44 acres of jurisdictional wetlands, though he stated that wetland hydrology "is absent" from the part of the site where the fill was proposed. He also described the wetlands as degraded because of its traditional use for grazing. In a series of hearings before the Planning Commission, the City Council and the Coastal Commission, the Kirkorowiczes agreed to revamp the protect and reduce the fill area to 0.35 acres of wetlands. However, the Coastal Commission turned the project down as inconsistent with the city's certified LCP and claimed other alternatives had not been explored. The Kirkorowiczes then sued, petitioning for a writ of administrative mandamus on several grounds. After the Bolsa Chica decision was handed down, however, the parties agreed to narrow the case to the question of whether the project would affect jurisdictional wetlands. San Diego Court Superior Court Judge Vincent DiFiglia ruled in favor of the Kirkorowiczes, concluding that while the Coastal Commission had presumed that wetlands existed on the property, "the Court finds that there is not substantial evidence that the Kirkorowicz' property is a protected wetland" under either the Coastal Act or the Encinitas LCP. The Coastal Commission then appealed to the Fourth District. The Kirkorowiczes's main argument on appeal was that Scheidt, the biologist, had not found that the property contained the characteristics required to make the wetlands finding. Scheidt had found "hydrophytes" (water-oriented species), but they represented only 43% of the species on the site (18 of 42) and he had concluded that wetlands hydrology did not exist on the fill portion of the site. However, in rejecting the property owners' argument, the Fourth District noted that Scheidt had filed a second report in which he detailed his adherence to the Unified Federal Method for wetlands delineation. "There is no evidence," the court wrote, that Scheidt failed to follow those procedures. The court also rejected the property owners' argument that the area was not deserving of protection because the wetlands were in a degraded state. Quoting its own ruling in Bolsa Chica, the court wrote that wetlands "whether they are pristine or growing or fouled and threatened receive uniform treatment and protection." The Case: Kirkorowicz v. California Coastal Commission, No. D034287, 00 C.D.O.S. 7856 (issued September 21, 2000). The Lawyers: For Kirkorowicz: Donald Robert Worley, Worley, Garratt, Schwartz, Garfield, and Prairie, (619) 696-3500. For California Coastal Commission: Daniel L. Siegel and Lisa Trankley, California Attorney General's Office, (916) 445-9555.

In retrospect, no one should have been surprised by the chaos this summer in California's electricity industry. The stage was set six years ago for a painful collision between consumer expectations and marketplace realities when the Public Utilities Commission began dismantling the tightly integrated power industry. In 1996, the Legislature expanded the PUC's efforts and practically guaranteed this summer's debacle when it hurriedly approved a complicated deregulation plan intended to reduce consumer prices by introducing competition into what had been an industry of regulated monopolies. Nevertheless, this summer's power crisis — which saw retail rates more than double in the San Diego area, blackouts and brownouts in Northern California, and service cutoffs statewide to customers with "interruptible" contracts — caught lawmakers unprepared. As consumer indignation rose to fever pitch, the Legislature struggled to respond before its Aug. 31 adjournment. A last-minute flurry of activity produced three pieces of legislation, only one of which — an effort to speed the construction of new power plants — is likely to have any lasting, beneficial effect on California's power network. The push to expand the state's generating capacity deserves examination because it raises important questions about the social and environmental tradeoffs Californians are willing to make in return for abundant, affordable electricity. The legislative deregulation plan approved in 1996 split the formerly integrated system of generation, transmission and distribution into isolated components, and opened the generation component to market competition. In theory, generators competing for market share would squeeze inefficiency out of the system and vie with each other to offer the lowest prices and best customer service, the overall result being that California's electricity rates — then 50 percent higher than the national average — would fall. Those expectations, however, were crushed in the vice of supply-demand dynamics. California's generating capacity has been stagnant for 10 years, while demand has soared thanks to population growth, a booming economy, and the rise of a technology sector dependent on abundant power to drive its manufacturing processes and to keep its products blinking and humming after consumers have brought them home. Because of the uncertainty created among investors by the complicated deregulation scheme, few proposals to construct power plants materialized during the 1990s. Uncertainty evaporated this summer, the first extended period of high temperatures since the freeze on retail rates — imposed under the state's deregulation legislation for a period of time that varies from utility to utility — expired for customers of San Diego Gas & Electric Co. Bills for SDG&E customers promptly doubled, and continued rising all summer. There is no simple explanation for the tumultuous combination of supply unreliability and price volatility. What is clear is that demand for electricity now exceeds supply in California. And with the prospect of generous profits to be made selling power in the nation's most wired state, it is reasonable to expect that private firms will begin trying to take advantage of the situation. In only two years, 25 applications have been (or are expected to be) submitted to the California Energy Commission for power plant licensing. Some applications represent expansions of existing facilities, such as the big plants at Moss Landing, which PG&E sold to Duke Energy. Other applications represent new facilities. The power plant licensing process now takes a full year if everything goes well. Design and construction typically takes another year or two. Under the emergency legislation hurriedly passed in late August by the Assembly and Senate, and just as swiftly signed by Gov. Davis, the licensing process will be shortened to six months. Assembly Bill 979 also establishes a governor's Clean Energy Green Team comprising 15 members, including Cabinet secretaries, officials of local air quality districts, and representatives of federal environmental agencies. The team has 90 days to produce recommendations for minimizing the environmental effects of new generating plants, and is directed to help plant operators cut through state and local red tape — permit processing, land-use authorizations — to get new generators on line quickly. The environmental concerns are appropriate; the summer power crisis has already demonstrated troubling implications for California air quality. Older plants, which tend to be dirtier than new ones, have been forced to step up operation to keep the grid juiced. Reluctant to take plants off line — which would cut profits and threaten the grid's stability — operators have been unable to perform scheduled retrofits of improved pollution-control devices. Even more troubling, the power shortage this summer prompted the Independent System Operator — the private, nonprofit organization set up by deregulation law to manage day-to-day operation of the state's transmission system — to order the use of emergency generators at times of peak demand. These generators typically run on diesel fuel and have no emission controls; there are more than 1,000 in the San Diego area and two to three times that many in the Bay Area, according to a recent PUC report. The Air Resources Board estimates that one diesel generator operating for 200 hours will cause 100 new cancers per million people. Although they are cleaner than emergency generators, permanent generating plants — which typically burn relatively clean natural gas — still degrade air quality. And, typically, the people exposed to those emissions live in working-class neighborhoods with large minority populations. In eastern Contra Costa County, for example, ten power plants line Highway 4 between Bay Point and Antioch, with an eleventh working its way through the permitting process. In early September, a group of Bay Area environmental groups leveled harsh criticism at the Bay Area Air Quality Management District for failing to consider the issue of environmental justice in its review of power-plant proposals. "Most of the people living around the plants are poor, working-class people who don't have the time to commit to protesting them" Mike Boyd, president of Californians for Renewable Energy, told the San Francisco Chronicle. The list of power plant licensing cases before the California Energy Commission reveals a distinct shortage of proposals in or near well-to-do communities with largely white populations. Instead, they are proposed for places less likely to mount well-funded, politically potent opposition: Victorville, Pittsburg, Blythe, small towns in Kern County, industrial areas of Los Angeles County. There may be sound reasons for this, just as there is an argument to be made for allowing heavily polluting old generators to fire up temporarily to prevent crippling blackouts. It will require close scrutiny by advocacy groups, however, to make sure the power crunch is not allowed to overwhelm California's commitment to social equality and environmental protection. Contacts: The Public Utilities Commission report to the governor on this summer's power crisis, "California's Electricity Options and Challenges," is available online at www.cpuc.ca.gov/. Californians for Renewable Energy: by e-mail at info@calfree.com, or on the Web at www.calfree.com/home.html

It goes without saying that in land-use planning, as in most other aspects of governance, where you stand depends on where you sit. One person's sprawl is another person's prosperity; one jurisdiction's responsible stewardship of resources is another jurisdiction's lost opportunity for economic development. When you get this kind of conflict in California land-use planning, usually you wind up in court — simply because there is no other forum for appeal. And so it is not surprising that the City of Brentwood has decided to sue Contra Costa County over the Board of Supervisors' July decision to "shrink" the county's urban limit line by 14,000 acres. A split San Ramon City Council has since voted to join Brentwood's lawsuit, and the City of Antioch and some of the affected landowners might jump aboard as well. The ensuing battle is likely to be a typical one in many ways, with jurisdictions and landowners battling on many fronts at once — at the county, at the cities, in the courts, and probably also at the Contra Costa County Local Agency Formation Commission. Yet it certainly looks like it's going to shape the final urbanization pattern in one of the state's key growth counties, and it may clarify the roles — and the leverage — that cities and counties have in shaping growth. A little background is in order here. Contra Costa is a large, demographically mixed county of 800,000 people in the East Bay. It includes many upper-middle-class suburbs, such as Walnut Creek and Orinda, but it also contains a long string of old working-class towns along the Bay and Delta, from Richmond to Pittsburg. Job growth along the I-680 corridor in the central part of the county has stimulated a huge demand for residential development. But resistance to growth is high in the areas where business is booming. As a result, a great deal of residential pressure is being bounced into open spaces to the east — into places such as Antioch, Brentwood, and Oakley. A decade ago, voters in Contra Costa County ordered the county to limit urban growth so that only 35% of the county's land area is developed, while 65% is either set aside or used for rural purposes. Voters also told the county to create an urban limit line to implement this requirement. The county subsequently created the "ULL," but it had wiggle room in it — that is, it specified what areas could and could not be developed, but placed more than 35% of the land area inside the line. The idea was to give the supervisors some room to maneuver in determining which land should be developed. Then, in the early 1990s, the politics of the Board of Supervisors changed. In particular, a pitched battle ensued over the proposed development of Tassajara Valley, an undeveloped area near San Ramon and Danville, in the vicinity of the I-680 corridor. A new supervisor, Diane Gerber, was elected based on her opposition to the Tassajara proposal and subsequently it was withdrawn. That led Gerber and her political allies to begin working to change the ULL so that Tassajara would lie outside the urban boundary. And it encouraged them to start lobbying the county's Local Agency Formation Commission to honor the ULL, even though the boundary was a policy of the county, not of the cities. The LAFCO eventually adopted a policy of adhering to the line whenever possible unless violating it "compellingly outweighs the public interest in limiting growth to areas within the line." (See CP&DR, April 1999.) It's a ways from Tassajara Valley to Brentwood — approximately 40 miles — but it was not long before several critical pieces of property in the eastern part of the county came into play in the controversy over the proposed ULL change. It began when Supervisor Joe Canciamilla, a former Pittsburg city councilmember, convened meetings with city officials in the east county to discuss a mutual approach to growth. But in the end, they couldn't agree. In backing the ULL "shrinkage," Canciamilla proposed cutting out several key properties that had been targeted by Antioch and Brentwood for development. Especially in the case of Brentwood, these changes included properties that are currently inside the city's sphere of influence. None of this has made Canciamilla a popular guy at Brentwood City Hall. Within a week, the Brentwood City Council voted to file a legal challenge to the environmental impact report for the new ULL. Mayor Quentin Kidd claimed that Canciamilla was simply pandering to the West County slow-growth crowd in his race to succeed Assemblyman Tom Torlakson. (Brentwood is not in Torlakson's district; most of Antioch is.) In response, Canciamilla took the high road. "There's a good deal of economic development competition between Brentwood and Antioch," he said. "I have a more regional perspective." San Ramon's decision to join the lawsuit was led by Mayor Curt Kinney, who happens to be running against Gerber in November. Whatever, the motivations, the ensuing litigation may be pretty sprightly. For example, one of Brentwood's major moves is likely to be an attack on the EIR's analysis of whether future housing will be displaced. While acknowledging possible displacement, the EIR minimized it as a problem; Mayor Kidd responded by saying that the removal of development potential from Brentwood's expansion area imperils the city's ability to meet the affordable housing goals in its housing element. Meanwhile, of course, there remains the question of whether the county's LAFCO will shrink the sphere to conform to the ULL — or deny annexations that violate the ULL even though they are in the sphere. All of which suggests that it will be a while before the eventual urban form of Contra Costa County is resolved. And, along the way, some interesting legal and political battles may help clarify — or further muddle — the interplay among some of California's most important land-use policy tools.