A controversial housing development proposed for the shores of Big Bear Lake appears to have died a final — and costly — death when U.S. District Court Judge Manuel Real fined developer Irving Okovita $1.3 million for violating the Clean Water Act and the Endangered Species Act. Okovita grabbed headlines two years ago when he filed a racketeering lawsuit against an environmentalist and three U.S. Forest Service employees, contending they conspired to stop him from developing 133 condominiums, a marina and tennis courts in the unincorporated community of Fawnskin. Last year, Judge Real threw out that lawsuit and fined Okovita's attorneys $267,000 (see CP&DR In Brief , September 2005). Okovita filed the lawsuit after a federal judge halted building when environmentalists and the Forest Service complained that work at the construction site was damaging bald eagle habitat. In Judge Real's most recent ruling, that damage — resulting from the dredging and filling of wetlands and grading that caused erosion — cost Okovita $1.3 million. The developer vowed to appeal the decision. The long-delayed development of a new town in Madera County will have to wait even longer. Stanislaus County Superior Court Judge Roger Beauchesne ruled that Madera County did not have sufficient evidence of an adequate water supply for the 1,800-acre River Ranch Estates, which would be the first project built in Rio Mesa. Madera County designated Rio Mesa, 20 miles north of Fresno, as a growth area during the mid-1990s. Up to 30,000 housing units in three villages are envisioned (see CP&DR Local Watch , May 2004). A collection of local government agencies, farming and environmental interests sued over the River Ranch Estates environmental impact report. They argued that developer Central Green does not have rights to the San Joaquin River, which would be the primary water supply, and that the river is already overburdened. Judge Beauchesne appeared to agree with the Madera County Planning Commission, which had unanimously rejected the River Ranch Estates EIR. The Board of Supervisors overturned the Planning Commission's decision. The City of San Diego has salvaged its inclusionary housing ordinance. In late July, the city agreed to settle a lawsuit filed by the San Diego County Building Industry Association regarding the ordinance. First approved three years ago, the ordinance requires developers to provide a certain percentage of affordable units in their projects or pay in-lieu fees. In May, a San Diego County Superior Court judge ruled the ordinance is unconstitutional because it contains no exception for developers who could prove their projects would not exacerbate the city's affordable housing shortage. To settle the lawsuit, the city agreed to add the exception to the ordinance. The city also agreed to calculate in-lieu fees based on the time a development application is submitted and determined to be complete — and not at the time building permits are issued. Because the city recently raised in-lieu fees, that change could cost the city more than $10 million from the approximately 4,000 housing units that have been approved or are in the planning process. The settlement does let the city keep about $9 million of already collected in-lieu fees. Housing advocates, who for years lobbied for an inclusionary ordinance in California's second largest city, appeared resigned to the settlement because it does keep the ordinance in place. The state controller's office reported that eight redevelopment agencies did not submit annual reports for the 2004-05 fiscal years. Additionally, the controller noted 86 "major violations," the most common being the lack of a five-year implementation plan, which has been required since 1994. There were 51 instances of agencies not filing implementation plans. Failing to file annual reports at all were Chowchilla, Compton, Cudahy, Imperial, Oakdale, Richmond, San Diego and Sierra Madre. It was the third time in four years that Chowchilla, Compton and San Diego have not submitted the mandatory reports. Additionally, the California State University Channel Islands Site Authority failed to file a compliance report. The state controller's massive annual report, which compiles redevelopment agency fiscal information, is available on the controller's website, www.sco.ca.gov . The U.S. Environmental Protection Agency's smart growth project has presented 20 case studies illustrating smart growth developments and policies. Five of the 20 case studies are from California: • Hismen Hin-Nu Terrance, a 92-unit redevelopment project in Oakland, for creating a range of housing opportunities and choices; • Downtown Brea, for fostering a distinctive, attractive community with a strong sense of place (see CP&DR Places , January 1998); • The 14-acre mixed use project that replaced a closed department store and parking lot in San Diego's Uptown District, for strengthening an existing community; • Greenbelt Alliance's compact development endorsement program, for helping make smart growth decisions fairer; • Various redevelopment projects in San Diego's Barrio Logan, for encouraging community and stakeholder collaboration. The EPA report, "Smart Growth Illustrated," is available at www.epa.gov/smartgrowth/case.htm . Butte County has banned new private roads. The county will now require that roads in new unincorporated subdivisions be covered by a "permanent road division," under which the county will levy annual fees on property owners to pay for road maintenance. County officials said many private roads serving rural area subdivisions have not been adequately maintained. Correction . A Legal Digest item in the June edition regarding Allegretti & Co. v. County of Imperial , a case concerning the regulation of groundwater pumping, listed the incorrect attorney for the county. Antonio Rossmann and Dave Owen of Rossmann & Moore represented the county.

A statewide initiative that could completely change how government agencies regulate land use, carry out infrastructure projects and redevelop cities has qualified for the November ballot. The authors of Proposition 90 have dubbed it “The Protect Our Homes Act,” and have focused their fledgling campaign on the initiative’s provisions to prohibit the use of eminent domain for private development projects. However, Proposition 90 also contains a regulatory takings provision that requires the government to compensate a property owner for “government actions that result in substantial economic loss to private property.” The measure is not written the same as Oregon’s Measure 37, the 2004 initiative that reworked Oregon’s land use planning regimen. But the point of Proposition 90 is the same: The government must compensate property owners affected by land use regulations. Money to fund the successful signature-gathering effort in California came primarily from Howard Rich, a New York City real estate investor who has been active for years in libertarian causes and term limit campaigns. Rich’s Fund for Democracy provided $1.5 million in seed money, and Rich was in California during July to raise more funds. A group called Montanans in Action, which has political ties to Rich, has provided $600,000 to the Proposition 90 campaign. Local government organizations, land use planners, environmentalists, affordable housing advocates and providers of emergency services are lining up in opposition and trying to entice business and anti-tax groups into a coalition. Vivian Kahn, an Oakland-based planning consultant and member of the American Planning Association’s legislative and policy committee, said property rights proponents are trying to capitalize on popular sentiment against eminent domain. “It (Proposition 90) is masquerading as an anti-eminent domain measure. In fact, it has sweeping implications,” Kahn said. “Were it to pass, the cost of litigation would be astronomical.” Ed Thompson, California state director of the American Farmland Trust, called Proposition 90 “the most deceitful and treacherous public initiative that I’ve ever seen.” The measure would essentially end regulatory efforts to steer urban growth away from the Central Valley’s 6 million acres of irrigated cropland, said Thompson, who signed the ballot argument against Proposition 90. “It is an outright and direct assault on the powers of city councils to build strong cities,” added Chris McKenzie, executive director of the League of California Cities. “It would drastically reduce the ability of city councils to make land use decisions for their cities.” Proposition 90 advocates, however, discount the sky-is-falling arguments and say the measure only ensures that property owners receive fair treatment. The measure requires compensation only if a government regulation decreases property by a “substantial” amount, and the initiative provides exceptions for regulations to protect public health and safety, noted Tim Sandefur, an attorney with the Pacific Legal Foundation (PLF). Sandefur said that, for example, the government could still pass laws limiting pollution because they protect public health, but regulations such as view shed or tree ordinances would not be excepted. The eminent domain provisions would provide property owners with “a much fairer shake than under the current law,” Sandefur contended. The measure requires the government to pay a property owner based on the value of “the use to which the government intends to put the property.” Currently, the government must pay fair market value, which does not consider the government’s proposed use of the property. The measure also requires the government to pay all of the property owner’s costs, including attorney fees. “A lot of times the government gets away with these eminent domain actions because they low-ball the property owners,” Sandefur contended. “This would discourage the eminent domain abuse.” Kevin Spillane, a Republican campaign consultant and lead spokesman for the Proposition 90 campaign, said the initiative would put “the little guy” on the same footing as the government and well-connected property owners. Opponents, however, question how the measure’s “just compensation” provisions would be implemented in eminent domain cases. What if a property were condemned to permit development of an electricity generating plant, asked Cathy Christian, an attorney who prepared a Proposition 90 analysis for opponents. Would the property owner, she questioned, get paid based on electricity revenues? The Post-Kelo World Proposition 90 appears to combine an outpouring of public sentiment against the use of eminent domain for economic development with property rights advocates’ long-held contention that the government should compensate people who are prevented from using their property as they wish. The eminent domain issue came to the forefront in 2005, when the U.S. Supreme Court ruled in , 125 S. Ct. 2655, that a local government-run development corporation could acquire 15 parcels of land and then turn over the property to the developer of a mixed-use project on the New London waterfront. The ruling sparked a public backlash, and bills and ballot initiatives aimed at limiting eminent domain were introduced in many states, including California (see , March 2006; , January 2006; , August 2005; , July 2006). The decision appeared to have minimal legal impact in California because state redevelopment law governs the use of eminent domain for economic development projects. However, to the delight of property rights champions, packed a huge political wallop. Four initiatives were proposed for the ballot, and state lawmakers authored numerous bills — all aimed at prohibiting the use of eminent domain for economic development. But while about 25 states have approved some new limitations on eminent domain, the California legislative majority showed little interest in a significant overhaul, and the only bills that appear likely to pass this year are modest changes to redevelopment law. The Legislature’s tame response to appears to be providing indirect support to Proposition 90. “This ( ) decision has opened the floodgates for other cities seeking to increase their tax base at the expense of homeowners,” Assemblywoman Mimi Walters (R-Laguna Niguel) charged after an Assembly committee killed her AB 1990, which would have prevented use of eminent domain for economic development. “This is not what the framers of the constitution intended when they wrote the Fifth Amendment, nor is this what they intended when they reluctantly granted local governments the power of eminent domain.” Walters — who, as a Laguna Niguel councilwoman, helped lead the fight against a proposed civilian airport at the El Toro Marine Corps base — has signed on as the honorary chairperson of the Proposition 90 campaign. State Sen. Tom McClintock (R-Thousand Oaks), who is running for lieutenant governor, also has endorsed Proposition 90. “The Supreme Court decision galvanized public opinion on eminent domain,” said Spillane. “You had local governments over-reaching, and it backfired on them.” However popular the eminent domain policies in Proposition 90 may be, they could be secondary to the regulatory takings provision. The measure redefines property “damage” to include any regulation that results in “substantial economic loss to private property.” The initiative names downzoning, elimination of access and limits on the use of private air space as examples of damage. The government would have to compensate the owner for such damage, with jury trials apparently deciding disputes. Attorneys and land use experts have started sounding alarms. The initiative would “vastly expand landowner remedies for downzoning or other currently non-actionable government planning activities,” wrote John Murphy and Lisa Holmes, of Nossaman, Guthner, Knox and Elliott in Orange County. Christian, of Nielsen, Merksamer, Parrinello, Mueller & Naylor in Sacramento, said the “very badly drafted measure” raises many questions. The new definition of damage, Christian wrote in her analysis for opponents, “could commit California to a radical departure from basic principles regarding regulatory takings, resulting in greatly increased costs of governmental regulations affecting the value of property — costs that will be borne by all taxpayers.” The measure makes an exception for regulations to protect “public health and safety.” The word that’s missing from this phrase is . That’s important, said Christian, because many environmental and land use regulations are implemented for the benefit of the public welfare. “This initiative is no longer about eminent domain,” said John Shirey, executive director of the California Redevelopment Association. “This initiative is about limiting the ability of the government to do sound land use planning.” “It would raise property rights over every other right in California,” said Christine Minnehan, a housing lobbyist for the Western Center on Law and Poverty. “Do we want to be Texas? Do we want no zoning? I just wonder if people are contemplating what this could mean for how we grow.” Spillane, the Proposition 90 campaign spokesman, contended that the regulatory takings provisions are directly related to the eminent domain restrictions. “It really is about protecting your property from government abuse,” he said. But the Farmland Alliance’s Thompson and others said the initiative is one-sided. The provisions requiring compensation to property owners “are not only destructive of good public policy, but they fail to take into consideration all of the good things that government regulation does,” Thompson said. “A lot of property gets its value from actions government takes.” “I’m all for it,” added planning consultant and University of California, Berkeley, professor Gary Binger, “as long as they put in a provision that says whenever the government puts in any infrastructure improvements or does anything to increase property value, the property owner compensates the government in return.” Higher Costs For All? Housing advocates are calling Proposition 90 “extremely dangerous.” Minnehan said “every single policy” that she works on — zoning that requires developers to provide affordable units, relocation benefits for evicted tenants, ordinances that limit the conversion of apartments to for-sale condominiums, rent control — would be impacted by the initiative. Any new regulation or even amendment to an existing regulation would be threatened with litigation and a demand for payment of attorney fees, she said. Proposition 90’s eminent domain limitations would also affect housing programs, Minnehan added. Redevelopment agencies and housing authorities often assemble parcels to provide sites for affordable housing projects, and the agencies sometimes threaten and even carry out eminent domain to deal with a holdout property owner or two. Without eminent domain, the agencies would have to either pay a premium to holdout property owners or drop the project, she said. The initiative does permit the use of eminent domain for “projects of public use,” but the initiative’s replacement of “fair market value” with the “just compensation” standard could change the economics of some public projects. “Clearly,” said the redevelopment association’s Shirey, “with the redefinitions of just compensation that are in this initiative, all property acquisitions will be more expensive.” The just compensation requirement could have serious implications for the infrastructure bonds that are also on the November ballot, added the APA’s Kahn, because bond money would not go as far as envisioned. But none of these arguments go far with the initiative’s supporters, who say government has only itself to blame. “California has been severely abusive of its eminent domain law,” charged the PLF’s Sandefur, who recently authored a book, , about government intrusion on property rights. He pointed to an Institute for Justice report that found California government agencies from 1998 to 2003 took 223 properties and provided them to private developers. He also cited a 1998 Public Policy Institute of California study that concluded many redevelopment activities are intended primarily to boost local government revenues. Redevelopment advocates say Institute for Justice numbers are skewed and note that redevelopment agencies have taken virtually no owner-occupied homes for private development in recent years. All of these punches and counter-punches are likely to be thrown repeatedly during the campaign. Whether Proposition 90 will become a factor in the governor’s campaign is an open question. People on either side say it could be that neither Arnold Schwarzenegger nor Phil Angelides will want to touch the initiative. “Governor Schwarzenegger has not uttered a single word about eminent domain since ,” a frustrated Sandefur said. The Sacramento-based Pacific Legal Foundation, one of the country’s foremost property rights advocacy groups, was not involved in writing Proposition 90, according to Sandefur, who declined to endorse the measure. The PLF had been working with Sen. McClintock on a competing eminent domain initiative that has failed to qualify for the ballot. McClintock is expected to make Proposition 90 a part of his campaign. Privately, some opponents concede that they have a very difficult job ahead of them. Public anger stirred by remains strong, and “protect our homes” is an easy campaign slogan to pitch. The opposition is calling Proposition 90 a “taxpayer trap,” but the intricacies of land use regulation do not lend themselves well to campaign sound-bites. Contacts: Tim Sandefur, Pacific Legal Foundation, (916) 419-7111. Kevin Spillane, Proposition 90 campaign, (916) 924-7501. Cathy Christian, Nielsen, Merksamer, Parrinello, Mueller & Naylor, (916) 446-6752. Vivian Kahn, Kahn Mortimer Associates, (510) 482-1031. Chris McKenzie, League of California Cities, (916) 658-8200. Christine Minnehan, Western Center on Law and Poverty, (916) 442-0753. John Shirey, California Redevelopment Association, (916) 448-8760. Ed Thompson, American Farmland Trust, (530) 753-1073. Similar State Initiatives California is not the only state where property rights advocates have placed an initiative on the statewide ballot. All of the measures seek either to limit use of eminent domain, force the government to pay landowners affected by land use regulations, or both. • Arizona. The “Private Property Rights Protection Act” will appear as Measure 207 on the November ballot. The initiative would require just compensation for diminution of property value. It also would limit use of eminent domain to public use projects, and “slum clearance and redevelopment.” • Idaho: Proposition 2 in November would prohibit use of eminent domain for economic development. The measure also states: “If an owner’s ability to use, possess, sell or divide private real property is limited or prohibited by the enactment or enforcement of any land use law after the date of acquisition by the owner of the property in a manner that reduces the fair market value of the property, the owner shall be entitled to just compensation, and shall not be required to first submit a land use application to remove, modify, vary or otherwise alter the application of the land use law as a prerequisite to demanding or receiving just compensation.” • Montana: Measure 152 on the November ballot would require state or local governments to compensate property owners for diminished value resulting from regulations. The initiative also would prohibit the use of eminent domain if the property were to be transferred to a private entity. • Nevada: The “Nevada Property Owners’ Bill of Rights” initiative is circulating but has not yet qualified for the ballot. The measure’s limitations on eminent domain and requirement of compensation for “actions which result in substantial economic loss to private property” are very similar to California’s Proposition 90. • Washington: Measure 933 has qualified for the November ballot. The initiative would require compensation when regulation “damages the use or value of private property,” and would “forbid regulations that prohibit existing legal uses of private property.” Section 1. Statement of Findings … (c) Neither the federal nor the California courts have protected the full scope of private property rights found in the state constitution. The courts have allowed local governments to exercise eminent domain powers to advance private economic interests in the face of protests from affected homeowners and neighborhood groups. The courts have not required government to pay compensation to property owners when enacting statutes, charter provisions, ordinances, resolutions, laws, rules or regulations not related to public health and safety that reduce the value of private property. … Section 2. Statement of Purpose (a),/b> The power of eminent domain available to government in California shall be limited to projects of public use. Examples of public use projects include, but are not limited to, road construction, the creation of public parks, the creation of public facilities, land-use planning, property zoning, and actions to preserve the public health and safety. (b) Public use projects that the government assigns, contracts or otherwise arranges for private entities to perform shall retain the power of eminent domain. Examples of public use projects that private entities perform include, but are not limited to, the construction and operation of private toll roads and privately-owned prison facilities. (c) Whenever government takes or damages private property for a public use, the owner of any affected property shall receive just compensation for the property taken or damaged. Just compensation shall be set at fair market value for property taken and diminution of fair market value for property damaged. Whenever a property owner and the government can not agree on fair compensation, the California courts shall provide through a jury trial a fair and timely process for the settlement of disputes. … Section 3. Amendment to the California Constitution Section 19 of Article 1 of the state constitution is amended to read: Sec. 19 (a) (1) Private property may be taken or damaged only for a stated public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. Private property may not be taken or damaged for private use. (2) Property taken by eminent domain shall be owned and occupied by the condemnor, or another governmental agency utilizing the property for the stated public use by agreement with the condemnor, or may be leased to entities that are regulated by the Public Utilities Commission or any other entity that the government assigns, contracts or arranges with to perform a public use project. ... (3) If any property taken through eminent domain after the effective date of this subdivision ceases to be used for the stated public use, the former owner of the property or a beneficiary or an heir, if a beneficiary or heir has been designated for this purpose, shall have the right to reacquire the property for the fair market value of the property before the property may be sold or transferred. … (b) For purposes of applying this section: (1) “Public use” shall have a distinct and more narrow meaning than the term “public purpose;” its limiting effect prohibits takings expected to result in transfers to non-governmental owners on economic development or tax revenue enhancement grounds, or for any other actual uses that are not public in fact, even though these uses may serve otherwise legitimate public purposes. (2) Public use shall not include the direct or indirect transfer of any possessory interest in property taken in an eminent domain proceeding from one private party to another private party unless that transfer proceeds pursuant to a government assignment, contract or arrangement with a private entity whereby the private entity performs a public use project. … (3) Unpublished eminent domain judicial opinions or orders shall be null and void. (4) In all eminent domain actions, prior to the government’s occupancy, a property owner shall be given copies of all appraisals by the government and shall be entitled, at the property owner’s election, to a separate and distinct determination by a superior court jury, as to whether the taking is actually for a public use. (5) If a public use is determined, the taken or damaged property shall be valued at its highest and best use without considering any future dedication requirements imposed by the government. If private property is taken for any proprietary governmental purpose, then the property shall be valued at the use to which the government intends to put the property, if such use results in a higher value for the land taken. (6) In all eminent domain actions, just compensation shall be defined as that sum of money necessary to place the property owner in the same position monetarily, without any governmental offsets, as if the property had never been taken. Just compensation shall include, but is not limited to, compounded interest and all reasonable costs and expenses actually incurred. … (8) Except when taken to protect public health and safety, “damage” to private property includes government actions that result in substantial economic loss to private property. Examples of substantial economic loss include, but are not limited to, the down zoning of private property, the elimination of any access to private property, and limitations on the use of private air space. “Government action” shall mean any statute, charter provision, ordinance, resolution, law, rule or regulation. … (e) Nothing in this section shall prohibit the use of condemnation powers to abate nuisances such as blight, obscenity, pornography, hazardous substances or environmental conditions provided those condemnations are limited to abatement of specific conditions on specific parcels.

Auburn Dam is the public works equivalent of a Hollywood zombie, rivaling any Tinseltown creation in its ability to withstand repeated attempts to kill it. First proposed nearly a half-century ago for a site in the American River canyon near the Gold Rush town of Auburn, the dam has withstood attacks by U.S. presidents, member of Congress, state and federal agencies, environmentalists, tax watchdogs, scientists, engineers and even nature itself — the political equivalent of being shot, stabbed, drowned, poisoned, electrocuted and set on fire. But thanks to the dogged efforts of the area's congressman, Granite Bay Republican John Doolittle, the corpse is twitching again. Last summer and fall, after Hurricane Katrina walloped the Gulf Coast, lawmakers raced to capitalize on the attention-grabbing disaster, pointing to eerie parallels between sodden New Orleans and the flood-menaced region at the heart of California: the low-lying bowl occupied by Sacramento, its expanding ring of suburbs, and the Sacramento-San Joaquin River Delta. The strategy was effective. California received long-sought appropriations to bolster its levee system and increase capacity at Folsom Dam, Sacramento's primary bulwark against inundation. But local lawmakers wanted more than money for widely supported improvements to existing flood-protection systems. Doolittle, a senior member of the House Appropriation Committee's water and energy subcommittee, also stuck $4 million for Auburn Dam studies into the $30 billion budget bill intended to fund the Army Corps of Engineers (COE) and U.S. Bureau of Reclamation (USBR) for the fiscal year beginning October 1. Most of the earmarked money — $3 million — would be used to update a 1996 feasibility study of the dam. The other $1 million would pay for a study of the relocation of Highway 49, which would be inundated by the Auburn Dam reservoir. The money won House approval, and it also was included in the version of the COE/USBR budget bill approved June 29 by the Senate Appropriations Committee, although Sen. Dianne Feinstein inserted a provision preventing that money from being spent until completion of an updated cost-benefit analysis of the dam that Doolittle requested last year. That update expected by the end of this month. The news that Auburn Dam is showing new signs of life drew a melodramatic reaction from Jonas Minton, water policy adviser for the Planning and Conservation League, who responded with a curse and a scream of mock horror when a reporter called. His reaction was typical of dam opponents who have been battling what one group, Protect American River Canyons, refers to as "Doolittle's tiresome obsession" for a generation. The saga began during the 1950s with construction of Folsom Dam, which was designed to protect Sacramento from the magnitude of storm that statistically could be expected to occur only once every 250 years. Floods in 1955, 1963 and 1965, however, demonstrated that the hydrologists' estimates of potential runoff had been far too low. Folsom Dam, the flood experts decided, provided protection only from a 120-year storm. Subsequent flooding prompted them to lower that estimate still further, to a 78-year storm. To many Sacramento-area politicians, business owners and community leaders, the solution to the city's watery woes was not to prohibit floodplain development but to build another dam just upstream from Folsom. At the behest of local representatives, Congress authorized Auburn Dam in 1965 on the Middle Fork of the American River. Work began in 1967, but nature interfered before construction had proceeded beyond preliminary site preparation. In 1975, an earthquake struck about 45 miles away near Oroville Dam. At magnitude 5.7, the quake was far more powerful than Auburn Dam had been designed to withstand, and it occurred on a fault system geologists suspected might be related to one that ran directly beneath the Auburn Dam site. Work halted and never resumed, although Doolittle has repeatedly tried to have Congress reauthorize it. Opponents have battled the dam tenaciously since the 1970s, seizing on its dubious economics — studies have demonstrated that the water and flood protection it would offer can be provided far more cheaply through other means — the environmental damage from drowning wildlife habitat, and the recreational opportunities eliminated by inundating 40 miles of river canyon popular with rafters, kayakers, equestrians and runners. Opponents have also argued that the seismic risk is too great. "It is just plain irresponsible to propose building the sixth-highest dam in the United States in an active fault zone right above a major population center," hydrologist Tony Finnerty and UC Davis professor Jimmy Sparrow wrote in a recent essay for the Sacramento News & Review . They warned that the seismic failure of Auburn Dam would unleash a torrent that would also collapse Folsom Dam and send a wall of water 100 feet high washing over Sacramento. Four years ago, apparently surrendering to political reality, the USBR began working to restore the river through the Auburn Dam site, construct a permanent pumping plant to replace water that local agencies had been promised from the never-completed reservoir, and to block a diversion tunnel carrying the river around the dam site. But neither criticism nor the apparent lack of interest by the USBR has daunted Doolittle, who's been championing the dam for more than two decades. He says it offers the best chance to protect Sacramento and its suburbs from flooding, secure adequate water for the region, and help meet the state's growing demand for electricity. "Without an Auburn Dam we could soon be in the unenviable position of suffering from both severe drought and severe flooding in the very same year," Doolittle wrote in an op-ed for the Sacramento Bee . Ultimately, money may prove the deciding factor. With construction estimates running as high as $5 billion and USBR able to pick up only 65% of the tab, the local share required before construction could start would be substantial. The American River Authority, an obscure joint-powers agency, has discussed becoming a local sponsor of the project, although it has a minuscule budget and no apparent source of additional financing. A booster organization known as the Auburn Dam Council has proposed creating a regional Auburn Dam Authority encompassing Placer, El Dorado, Sacramento, San Joaquin and Yolo counties, and issuing revenue bonds financed by the sale of water and power. But with the cost of such water estimated at more than $1,000 an acre-foot — twice the going rate — it is unclear who would buy. Still, as they say in the horror movies, "It is alive." Sources: Rep. John Doolittle, (202) 225-2511. Auburn Dam Council, (916) 967-6197. Protect American River Canyons: www.parc-auburn.org

In a case closely watched by cities and counties, a sharply divided California Supreme Court has ruled that counties have the authority to prohibit logging on private land. In a 4-3 decision, the state's high court upheld two Santa Cruz County logging ordinances and stood behind a 1995 appellate court ruling that said the state Forest Practice Act is not the sole authority on commercial timber operations. The decision was a relief to local governments, which feared a reverse ruling would impinge on local land use authority. Instead, the court ruled against logging and property rights advocates that sought to minimize local regulation. Timber interests and property rights advocates argued that the Forest Practice Act pre-empted local authority. But Fran Layton, an attorney who argued the county's case at the state Supreme Court, said the court recognized that the state law did not override local zoning authority. "What's important is the court's recognition of the pre-emption principles. When, as here, you have an area that has historically been regulated by local government, there is a presumption against pre-emption," Layton said. "It goes beyond logging. It goes right to the heart of the zoning power of local government. It is the responsibility of local government to prevent land use conflicts through zoning." In the majority opinion, Justice Kathryn Werdegar wrote, " n many places where it addresses timberland zoning, general state forestry law expressly preserves and plainly contemplates the exercise of local authority. The actual designation of TPZ's , for example, is left to local action." Chief Justice Ronald George and Justices Ming Chin and Carol Corrigan joined Werdegar. In a dissenting opinion, Justice Carlos Moreno asserted, "The majority pulls an interpretive rabbit out of a statutory hat." Moreno, who was joined by Justices Marvin Baxter and Joyce Kennard, wrote that the Forest Practice Act's "pre-emption provision speaks in terms that are expansive enough to leave no doubt that the Legislature intended to displace all local rules, ordinances and resolutions specifically regulating timber operations." Environmentalists and timber companies have fought about logging in the Santa Cruz Mountains of Santa Cruz, Santa Clara and San Mateo counties since at least the 1960s. In fact, local brakes on logging in the Santa Cruz Mountains were partly responsible for adoption of the Forest Practice Act (FPA) in 1973 — and major amendments in 1982, when the Legislature strengthened the FPA to forbid counties from regulating "the conduct of timber operations." At the same time, the state adopted the Timberland Productivity Act (TPA), which seeks to place all qualifying timberland in TPZ's — zones that restrict land use to the growing and harvesting of trees in return for reduced property taxes. The FPA, however, addresses the conduct of logging, not the location , and in 1995, the First District Court of Appeal upheld a San Mateo County ordinance mandating a 1,000-foot buffer between timber operations and residences (see CP&DR Legal Digest , February 1995). That case, Big Creek Lumber Co. v. County of San Mateo , 31 Cal.App.4th 418, bolstered local governments, including Santa Cruz County, which in 1999 adopted several ordinances affecting timber harvesting. So Davenport-based Big Creek Lumber returned to court. In 2004, the company won when the Sixth District Court of Appeal ruled that the First District was wrong in Big Creek v. San Mateo and that there was no difference between the how and the where of timber operations (see CP&DR Legal Digest , April 2004). But the timber company's victory was short-lived, as the state Supreme Court held that the 1995 ruling was correct. The state Supreme Court decided the validity of two Santa Cruz County ordinances. One is a zoning ordinance that prohibits commercial logging except on land zoned for timber production, mineral extraction, or parks, recreation and open space. The second ordinance requires helicopter staging, loading and servicing facilities associated with logging to be located on land zoned for timber harvesting or on an adjacent parcel, and within the boundaries of a timber harvest plan. The appellate court ruled that the county was regulating the conduct of timber harvesting in the most extreme way — by prohibiting logging outright. But in a decision that cites Big Creek v. San Mateo at length, the state Supreme Court disagreed. (Interestingly, Justices Chin and Corrigan, who were in the majority, were on the First District panel that decided Big Creek v. San Mateo . The lumber company asked the judges to recuse themselves, but they declined to do so.) The state Supreme Court determined that there is a difference between the how and the where of logging, and that the FPA and TPA contemplate that local officials may determine where timber harvesting occurs. "Certainly, neither the TPA nor the FPA suggests localities are restricted in what uses they may prohibit outside TPZ zones," Justice Werdegar wrote, citing Big Creek v. San Mateo . "‘Nowhere in the statutory scheme,' in fact, ‘has the Legislature expressly prohibited the use of zoning ordinances.'" Werdegar noted that the Legislature added Public Resources Code § 4516.5(d) to the FPA during the same session that it enacted the TPA. "That the legislature would, in the same session, include in one general forestry statute numerous provisions that rely upon local zoning authority and when amending another general forestry statute forbid localities' exercise of such authority seems unlikely," Werdegar wrote. "Plaintiffs' overriding concern appears to be that localities may by locational zoning prohibit timber harvesting altogether," Werdegar continued. "The ordinance before us does not have that effect, nor does it appear that any county has attempted such a result. … To require that commercial timber harvesting occur on land in a ‘timberland production' or other specified zone is no more a ban on timber harvesting that a regulation requiring that industrial land uses occur on land zoned "industrial" is a ban on factories." Justice Moreno took exception to this point in the dissenting opinion, writing that the court's distinction between how and where "provides a roadmap for those who would use technical artifices to evade the letter and spirit of the FPA." "I doubt," Moreno continued, "that it intended to create a cottage industry in the drafting of local ordinances that appear to regulate only where timber operations may occur, while in actual practice directing how these operations may take place." Layton, the county's attorney, said Moreno arrived at his conclusion by assuming that the county prohibited logging. But the lawsuit was a facial challenge of ordinances, not a challenge to the county's denial of a particular timber harvest, she noted. "If you want to log, rezone to the appropriate zone, which is timberland production," she said. State law requires the county to rezone land that qualifies, and the county has done so since it adopted the ordinances in question, she said. Big Creek owner Bud McCrary told the San Jose Mercury News that the decision puts 60,000 acres off limits to loggers, a figure that county officials disputed. The Case: Big Creek Lumber Co. v. County of Santa Cruz , No. S123659, 06 C.D.O.S. 5802, 2006 DJDAR 8572. Filed June 29, 2006. The Lawyers: For Big Creek: Craig Stewart, Jones Day, (415) 626-3939. For the county: Fran Layton, Shute, Mihaly & Weinberger, (415) 552-7272.

The California Supreme Court in July accepted four cases with direct and indirect land use implications. The case that is likely of most interest to planners involves a City of Hanford ordinance regulating who may sell furniture. The ordinance prohibits furniture sales outside of downtown with the exception that stores of at least 50,000 square feet may devote up to 2,500 square feet to furniture displays. The Fifth District Court of Appeal ruled the ordinance was unconstitutional because it divided retailers into two classes and treated them separately. The separate treatment did not "bear a rational relationship" to the city's goal of preserving downtown (see CP&DR Legal Digest , May 2006). The decision came down only one week after the same court upheld a City of Turlock ordinance banning stores of more than 100,000 square feet from selling groceries. "Despite the court's attempt to distinguish the two decisions, it is difficult to reconcile the disparate holdings," Bingham McCutchen land use attorneys Dan Curtin, Cecily Talbert and Allison Krumbein wrote in an analysis for the Los Angeles Daily Journal . The case is Hernandez v. City of Hanford , No. S143287. The court rejected Wal-Mart's request to hear the Turlock case. A second case concerns three timber harvest plans in Tuolumne County that the state Department of Forestry and Fire Protection (CDF) approved for Sierra Pacific Industries. The Fifth District ruled that CDF's biological assessment was inadequate because the agency used the same "assessment area" when determining the planned logging's cumulative impact on the California spotted owl and the Pacific fisher. Assessment areas should be chosen separately based on the characteristics and needs of each species, the appellate court concluded. The court also ruled that CDF's study of the impacts of post-harvest herbicide use was inadequate. The state Supreme Court agreed to decide whether CDF did in fact correctly interpret and apply the Forest Practice Act and the Forest Practice Rules. The case is Ebbetts Pass Forest Watch v. Department of Forestry and Fire Protection, No. S143689. A third case concerns the formation of the Downtown Pomona Property and Business Improvement District. A property owner contended that a required public hearing was conducted at the wrong time and that the assessments are not proportional to the benefits received. The Second District Court of Appeal ruled against the property owner. The Supreme Court accepted the Pomona case but deferred action until the court decides a different case ( Silicon Valley Taxpayers' Assn., Inc. v. Santa Clara County Open Space Authority , No. S136468) that also concerns the justification for special assessments. The case is Dahms v. Downtown Pomona Property and Business Improvement District , No. S143165. Finally, the state's high court accepted a case involving a dispute between the City of Dinuba and Tulare County. The county had incorrectly coded for tax purposes certain parcels within Dinuba's redevelopment project area. The error shortchanged the city tax increment for four years. Instead, the money went to the county and nine other local government agencies. The county agreed to correct the error prospectively, but the Fifth District ordered the county to pay the city all of the underpaid tax increment (see CP&DR Legal Digest , May 2006). The question for the Supreme Court is whether state law provides the county immunity for its mistake. The case is City of Dinuba v. County of Tulare , No. S143326.

Colusa County In an advisory vote, the electorate made clear it opposes off-reservation Indian casinos in the county. A “yes” vote indicated opposition to casinos. Measure D, Yes: 82.4% Glenn County A proposal from the Grindstone Rancheria of Wintun-Wailaki Indians to build an off-reservation a casino along Interstate 5 near Willows failed to receive support in an advisory election. Measure F, No: 52.8% Kern County An initiative that bans the application of sewage sludge on farm fields won easily. About one-third of all sewage sludge — a byproduct of sewage treatment — in the state is now hauled to Kern County and spread on agricultural land. The county has tried for years to halt the practice because of public health and image concerns. Measure E, Yes: 83.3% Merced County A half-cent sales tax for transportation for 30 years failed to receive a super-majority vote. The tax would have raised an estimated $466 million for road improvements. Measure A, No: 37.2% (2/3 vote required) Monterey County A half-cent sales tax for transportation for 14 years failed. It would have raised an estimated $350 million for 16 highway improvement projects. Measure A, No: 43.3% (2/3 vote required) Napa County Voters widely rejected the Fair Pay for Public Benefit Act. The property rights initiative would have required the county to compensate a property owner “who suffers an established decrease in value of that property due to the impact of a new Napa County land use restriction.” Measure A, No: 63.6% A half-cent sales tax measure for transportation failed. The tax would have brought in about $530 million over 30 years. Measure H, No: 47.6% (2/3 vote required) Orange County A measure backed by the Orange County Board of Supervisors that prohibits the county from taking property via eminent domain so that the property may be used for private development gained widespread support. Measure A, Yes: 75.9% o . Voters narrowly approved a controversial initiative that requires general plan amendments and rezonings to be decided by voters. The initiative also establishes a height limit of 35 feet. Measure B, Yes: 51.1% San Bernardino County o . A measure backed by the City Council that amends a 1999 ballot measure prohibiting rezoning without voter approval won. The new measure gives the City Council the final say on general plan amendments and zoning. Measure N, Yes: 59.3% o . An initiative to give preference to San Bernardino County Indian tribes in development of a casino failed badly. The measure was an attempt to halt development of two Indian casinos proposed by two tribes from out of the area, a project that has the support of the city and the state. Measure H, No: 80.4% San Diego County o . Voters backed a charter amendment placed on the ballot by the City Council that prohibits the use of eminent domain to make property available for private development without voter approval. Proposition C, Yes: 73.8% o . A $596 million bond to fund construction, repair and improvements to Tri-City Medical Center and other medical facilities in Oceanside, Carlsbad and Vista barely failed to receive super-majority approval. The bond would have cost property owners about $23 per $100,000 of assessed value. Proposition F, No: 34.1% (2/3 vote required) San Francisco Voters overwhelmingly rejected an initiative aimed primarily at Laguna Honda Hospital admissions and care policies that also would have permitted development of nursing homes as conditional uses on land zoned for public use. Measure D, No: 73.6% Santa Barbara County A measure that would have carved a new county out of the existing county failed miserably. The proposed Mission County would have encompassed Santa Maria, Lompoc, Buellton and the Santa Ynez Valley. Measure H, entire county vote: No, 82.8% Measure H, within proposed county: No, 81.3% Santa Clara County A half-cent sales tax failed even though only a majority vote was required because the tax revenue was not officially designated for uses. Much of the revenue, however, likely would have gone for transit, primarily the $4.7 billion extension of BART from Fremont to San Jose. Measure A, No: 57.1% Parks continued to prove popular in the South Bay, as a 12-year extension of a special tax to fund parkland acquisition, development and maintenance was successful. The tax has been in place since 1972. The tax amounts to $14.20 for every $100K of assessed value. Measure B, Yes: 71.1% (2/3 vote required) o . Voters repealed a 1987 voter-approved zoning limitation that prohibits grocery stores at the Cochrane Plaza Shopping Center. A Target store now anchors the center, but Target plans to relocate. Measure H, Yes: 82.3% o . Voters said they do not want the city to sell the former Grace Methodist Church, which the city purchased four years ago for use as a new senior center. The senior center never relocated to the site, and the city proposed selling the 2.6-acre property. Sale opponents insist the church sold the property to the city at a discount and the property should remain in public hands. Measure J, No 75.6% Solano County A half-cent sales tax for transportation failed for the third time in four years. After relatively close votes in 2004 and 2002, this time the rejection was resounding. Measure H, No: 54.6% (2/3 vote required) Ventura County o . A 2,155-unit, 800-acre housing project was rejected. The City Council approved the Centex project last year, but opponents forced a referendum. Measure E6, No: 52.7% Yolo County o . An urban limit line initiative won approval. Supporters said the measure encourages downtown redevelopment, while opponents questioned the measure’s effectiveness and said it would induce growth on the city’s fringe. Measure A, Yes: 53.7%

Maybe it was while I was strolling amidst the mixed-use projects rising in the historic Pearl District. Or maybe it was while I was sipping coffee at a Powell’s outlet in the funky Hawthorne District. Or maybe it was while walking down the full sidewalks of Beaumont Village to a brewpub on a Tuesday evening. At some point during a recent visit to Portland, Oregon, I realized I wasn’t in Sacramento. The cities’ populations are roughly the same — Portland is about 570,000 people in a metro area of 2.1 million, Sacramento is about 470,000 in a metro area of 1.9 million — and both cities straddle one river while bordering a second. Both cities have an impressive number of mature trees. But I can’t think of much else they have in common. Portland is a city. Sacramento is a pretender. I’m not necessarily knocking Sacramento. OK, I am. But I don’t dislike the Big Tomato. I know it has charms. I lived there during the 1980s and continue to spend quite a bit of time there for work and socially. I’ve enjoyed watching the slow renaissance of my old midtown neighborhood into a modestly urbane district. But Portland has numerous districts all over town that top midtown Sacramento — districts where people fill the sidewalks, parks, eclectic shops and restaurants with life. And don’t get me started on downtown. There are more people out and about in downtown Portland on a Sunday afternoon than at any time in downtown Sacramento. They ride into the heart of Portland on the MAX light rail line by the tens of thousands to eat and drink, shop, go to the park or library, catch a minor league baseball game, or simply to hang out with friends. Ever walked down J Street in downtown Sacramento on Sunday afternoon? Right, no one has. There are a million big and small things that make Portland the city that Sacramento is not. Suffice to say that the late Jane Jacobs was right. A true city has a lot of unprogrammed commotion, a lot of people bumping into each other as they go about their lives. A city has vitality. After four days in Portland, I headed north on I-5 and stopped in the suburb of Vancouver, Washington. Although I had traveled only a few miles, I knew instantly that I wasn’t in Portland any longer. The streets were wide and fast, lined with cheesy commercial strips and huge parking lots. No one was on the sidewalk. I felt like I was in Sacramento.

Opponents of a school consolidation plan in a Santa Cruz County school district did not provide evidence showing that the consolidation was not exempt from California Environmental Quality Act review, the Sixth District Court of Appeal has ruled. The court ruled that the San Lorenzo Valley Unified School District did not violate procedural requirements of the California Environmental Quality Act (CEQA) because the law did not apply, and ruled that substantial evidence supported the district’s determination that school consolidation was categorically exempt from CEQA. At issue was the school district’s decision, made in April 2003, to close Redwood and Quail Hollow elementary schools, and transfer the students to Boulder Creek and San Lorenzo elementary schools. Four months after making the decision, the district, in response to public concerns, retained two consultants to evaluate environmental impacts of consolidation, including traffic. The district soon filed a formal notice of exemption from CEQA but also authorized preparation of an initial study of environmental effects. The study identified potential traffic and parking problems but concluded impacts would not exceed historic levels. A group called San Lorenzo Valley Community Advocates for Responsible Education (SLV CARE) sued the district on a number of grounds, including alleged CEQA violations. Santa Cruz County Superior Court Judge Irwin Joseph ruled for the school district on all claims. On appeal, the Sixth District upheld the lower court’s decision. The appellate panel first addressed the question of whether school consolidation was a “project” under CEQA. The court ruled it was a project with two components — closure of Redwood and Quail Hollow schools, and transfer of students from those schools to the Boulder Creek and San Lorenzo campuses. The court noted that in , (1982) 32 Cal.3d 779, the state Supreme Court ruled that the possibility that a school closure may have a significant effect “cannot be categorically rejected” and, therefore, was a project. As for the second component, the court again cited in finding that “transferring students may ‘change bus routes and schedules, and affect traffic patterns.’” After determining school consolidation was a project, the court turned to the issue of CEQA exemption. Section 15314 of the CEQA Guidelines provides an exemption to “minor additions to existing schools” when the addition “does not increase original student capacity by more than 25% or ten classrooms, whichever is less.” The court found that this exemption applied because the student transfers would give Boulder Creek and San Lorenzo schools, respectively, only 2.4% and 5% more students than original design capacities. Additionally, neither school would need 10 new classrooms. Consolidation opponents argued that the district did not follow the proper procedure for declaring the exemption because the district approved consolidation four months before filing the CEQA exemption. The court found that the district did nothing wrong. “CEQA has no application to exemption determinations made during an agency’s preliminary review, such as the one at issue here. Since CEQA does not apply, compliance with its procedural requirements is not required,” Justice Franklin Elia wrote. The question for the court then became whether consolidation warranted an exception to the exemption, meaning that CEQA would in fact apply. Section 15300.2 of the guidelines call for such an exception “when there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” Consolidation opponents argued there were unusual circumstances. They said the consolidation would increase the potential for mold in classrooms, pose a geologic hazard because of a fault near Boulder Creek school, cause problems with failing septic systems, and cause traffic, parking and emergency access problems. The court rejected every contention: A study of mold cited by SLV CARE found that the level of mold spores in classrooms “is not considered significant.” A 1990 study of geologic dangers found that the nearby fault was no longer considered a potential earthquake source. The septic systems had been repaired. There was no evidence that traffic, circulation and parking issues were unusual. The court concluded, “There is no evidence of unusual circumstances setting this school consolidation apart from others in the exempt class.” The court further rejected SLV CARE’s arguments that the consolidation violated statutory provisions regarding the use of bond funds, that the district failed to provide public records and violated the state open meeting law, and that the district broke Education Code requirements mandating community involvement in decisions involving school closures and surplus property. The Case: , No. H028147, 06 C.D.O.S. 4490, 2006 DJDAR 6509. Filed May 26, 2006. The Lawyers: For SLV CARE: Gerald Bowden, Dawson, Passafuime & Bowden, (831) 438-1221. For the school district: Timothy Volkmann, Burton, Volkmann & Schmal, (831) 425-5023.

Voters appeared to be in both an anti-tax and an anti-growth mood in June. In recent years, voters have shown a willingness to approve sales tax increases to fund transportation projects. But in the June primary, voters in five counties said no to sale tax increases, with four of the five measures not even close to passing. The startling results have some transportation backers rethinking plans to place sales tax increases on the ballot in November. Meanwhile, voters showed a slow-growth bent, as they rejected a 2,100-unit housing development in Santa Paula, narrowly approved a far-reaching growth-control initiative in Yorba Linda, and overwhelmingly rejected a property rights initiative in Napa County. Voters also approved eminent domain limitations in Orange County and the City of Chula Vista. The only substantial victories for development interests occurred in San Bernardino County. Voters in the Town of Apple Valley approved an amendment to a 1999 initiative that had required voter approval for zoning changes. And in the City of Barstow, more than 80% of voters rejected an initiative that attempted to halt two casinos proposed by out-of-area Indian tribes. The rejection of sales taxes for transportation is likely to have the most far-reaching effects. Sales taxes in Merced, Monterey, Napa and Solano County all failed to receive the necessary two-thirds of the vote. In Santa Clara County, a general purpose sales tax that would have provided money for a BART extension to San Jose and county health facilities failed to receive even the needed majority vote. “There is a feeling of mistrust,” said Suisun City Mayor Jim Spering, who is chairman of the Solano Transportation Authority and member of the nine-county Metropolitan Transportation Commission board. “It was almost like an anti-incumbent vote. The state is in a very angry mood right now.” Shiloh Ballard, director of housing and community development for the Silicon Valley Leadership Group and a leader in the campaign for Santa Clara County’s Measure A, detected a similar sentiment. Polling about a week before the election showed support for local government sinking, she said. “People were feeling less confident in the county government generally,” Ballard said. “I kind of feel like we had the right campaign, but the wrong time. Timing can be everything.” Indeed, only 19 months earlier, voters approved new transportation sales taxes for transportation and sales tax extensions in seven counties. At that time, taxes failed in only four counties. One of the those four counties was Solano, but the tax received 64% backing. Voters in Santa Clara County have approved sales tax overrides four times since 1984. But this time, neither tax received even majority support, despite minimal opposition campaigns. “This was by far the biggest coalition of supporters we’ve ever organized,” said Ballard. “When you see that even library bonds lost, that makes you feel a little better,” she added, pointing to the defeat of state Proposition 81. Sarah West of the Self-Help Counties Coalition said there were numerous factors in the defeat of the sales tax measures. June elections are always tougher for spending items, and people had been hearing about the large state bond package coming in November, she noted. Plus, the two-thirds requirement is “incredibly difficult,” she said. According to West, as many as 10 counties are considering placing new transportation sales taxes or extensions of existing taxes on the ballot in November. Amador, Kern, Placer and Stanislaus counties are considering first-time taxes. Renewals could appear on the ballot in Fresno, Imperial, Madera, Orange, San Joaquin and Santa Barbara counties. The situation is most urgent in Fresno County, where a half-cent sales tax is scheduled to expire in 2007, and an attempt to extend it in 2002 received only 54% support. Spering, the 20-year mayor of Suisun City, recommended counties avoid even trying a sales tax in November. Voters’ lack of confidence is based on issues such as the state’s circumventing Proposition 42’s dedication of gasoline sales tax for transportation, and restoring confidence will take time, he said. “It has got to start at the state Legislature. The Legislature is going to have to restore the money for transportation and things people think they were supporting,” Spering said. “At the local level, we need more accountability.” The Central Solano Citizen/Taxpayer Group, which opposed the sales tax, sounded a similar theme. “Voters were pretty clear. We have already paid our share of taxes to maintain state and interstate highways,” John Takeuchi wrote on the group’s website. “Caltrans is responsible for the work. We will not be intimidated into taxing ourselves again for jobs that are not our responsibility.” In the growth wars, voters also demonstrated skepticism of their elected officials’ decisions. In the Ventura County city of Santa Paula, voters rejected development for the second time in three months, and the fourth time in six years. The latest project to lose was a proposal from Centex for 2,155 housing units and a smattering of retail space on about 800 acres in rugged Fagan Canyon, on the city’s northern end. Centex had agreed to set aside about 1,000 acres of open space. The City Council approved the project in late 2005, but the group We Care – Santa Paula qualified a referendum for the ballot. About 53% of voters rejected the project. Centex, which spent about $1.5 million in the campaign against the referendum after losing a lawsuit to keep the measure off the ballot, indicated it was through fighting Santa Paula’s activists. And city officials portrayed the vote — which occurred only two months after voters declined to enlarge the city’s growth boundary to accommodate a 495-home luxury housing project and golf resort in a different canyon outside of town — in stark terms. “In terms of another developer coming in to build in the canyons, I think this closes the door on that idea,” Councilwoman Mary Ann Krause told the . But Richard Main, who authored the referendum, rejected the characterization that We Care is a “no growth” group. “It’s not that we don’t want any houses or any growth. We just can’t seem to get the City Council and the city planners to look at growth with a discriminating eye,” Main said. Main, who helped draw the city’s growth boundary that voters approved in 2000, said Fagan Canyon was included within the boundary even though it is outside the city limits because it could provide for growth. But earlier studies had suggested about 450 units, he said. Next up for Santa Paula voters will be an initiative that would require voters to decide any project of more than 80 acres proposed at a density greater than allowed by the general plan — an initiative that a court ordered reluctant city officials to place on the ballot (see , June 2006). In the north Orange County city of Yorba Linda, voters narrowly approved the “Right to Vote on Land Use Amendments Initiative.” The measure requires a vote on any proposal to increase residential density, rezone residential land, rezone nonresidential land for more than 10 units per acre, or repeal any “planning policy document.” The initiative also establishes a citywide height limit of 35 feet and adds new noticing requirements. The initiative resulted from the city’s plans to redevelop the town center. Last fall, the city adopted a plan providing for 500 housing units and 560,000 square feet of retail development in a 60-acre redevelopment project area. Slow-growth advocates qualified a referendum of the town center plan, which the City Council then withdrew. The redevelopment opponents also advanced the right-to-vote initiative, and, even though the town center plan had been repealed, discontent apparently lingered. The initiative passed with 51% of the vote. In Napa County, a property rights initiative that mimicked Oregon’s Measure 37 was trounced, receiving barely more than one-third of the vote. The initiative would have required the county to compensate landowners for the economic impact of new regulations. It was authored by Napa Valley Land Stewards Alliance, a fairly new organization that fought a successful referendum campaign in 2004 to repeal a county stream setback ordinance (see , March 2004). Flush with that victory, the group pressed ahead with the “Fair Pay for Public Benefits Act.” However, Napa County has a history of slow-growth politics. In 1990, county voters approved Measure J, which reaffirmed agricultural land use designations and required a public vote to change them. Measure J was the subject of the landmark case , 9 Cal.4th 763 (see , April 1995), in which the state Supreme Court ruled that a general plan may be amended by initiative. Measure J remains a cornerstone in Napa County, and the Fair Pay initiative was viewed as a threat. In San Bernardino County, as usual, things were different. Voters in the Town of Apple Valley approved an amendment to a 1999 initiative that had given them final say over zoning changes. The Town Council contended that the 1999 initiative was focused on limiting residential development to two units per acre, and that the requirement for a subsequent election on zoning was superfluous. Officials said the requirement was hindering their ability to attract desired industrial development. Farther out in the desert, Barstow voters rejected an initiative that attempted to block a proposal for side-by-side Indian casinos. The Chemehuevi tribe backed the initiative, which would have established a casino development preference for tribes based in San Bernardino County. The tribe opposes a deal amongst the state, the city and two out of the area tribes — the Big Lagoon tribe from Humboldt County and the Los Coyotes band from San Diego County — for a major casino resort along Interstate 15 in Barstow.

My first impression of San Pedro occurred 15 years ago during a tour organized by the Los Angeles Conservancy. A middle-aged man, who had been a sailor during World War II, became animated as we stood beside the old city jail in the municipal building. He had been a teenage sailor when he went on furlough in San Pedro, then one of the toughest Navy towns on the West Coast. In one particularly notorious bar, men stationed on either side of the door both would wait for the next customer to walk through the door, and belt the unwary newcomer from both sides. After that hazing, the customer was free to nurse his throbbing jaw with a steady flow of stiff drinks. The protagonist of our story may have been new to booze. In any event, he found himself amid a sprawl of other drunken sailors in the basement of the municipal building. This was not an unusual occurrence in San Pedro, where the local authorities were familiar enough with Navy customs to release the men at dawn, so they could stumble their back to ships in time for roll call. The Navy has left San Pedro, and has been replaced by the second busiest port in the nation. A walk through many parts of this oceanfront district, however, gives the impression that little has changed here since the 1940s. Today, San Pedro is the Sad Sack of Los Angeles. Although much of the region’s wealth rolls through San Pedro on trucks and trains, they leave little in their wake but diesel fumes. Officially part of the City of Los Angeles – attached to the city by a ludicrously slender thread of land so that city officials are able to maintain control of the profitable port — San Pedro feels like a neglected stepchild of the wealthy city to the north. Not without reason: A walk through the district is a walk through working-class grit, combined with the weathered, seaside look that comes from constant exposure to salt air. True, there is a middle-class community, including some houses with commanding views of the ocean from tall bluffs. On the whole, however, there is little happening in San Pedro in the way of redevelopment. One of the best chances to improve the quality of life in San Pedro lies along the waterfront. The Port of Los Angeles has proposed and begun work on an eight-mile long stretch of San Pedro’s coastline as a waterfront walk, or, to put it in planning terms, a linear regional park. The appeal of walking along the waterfront is obvious; what is unusual here, perhaps, is that people in San Pedro may be accustomed to thinking of the tall bluffs as the waterfront, while much of the proposed new park lies below the bluffs, close to the shore. “There are no waterfront parks in the Los Angeles area, with the exception of Santa Monica,” said project architect Vaughan Davies. In a wealthy city, the typical pattern of developing an urban waterfront is for one or two developers to clear out the old industrial buildings and clean up the contaminated land. The cool air and pleasant view of water makes waterfront development desirable for hotels, restaurants and high-end housing. In a comparatively poor community like San Pedro, however, local government, rather than private investment, must provide the impetus for redeveloping the waterfront. In the design by architect Davies, who prepared it while a principal in the Los Angeles office of Ehrenkrantz, Eckstut & Kuhn, and continues to supervise the design from his current post as principal of EDAW’s Los Angeles office, the San Pedro waterfront becomes the mechanism to create a whole set of desirable uses (mostly) for the district. Here, some purists may balk at the colorful theming proposed to reposition drab little San Pedro. The oceanfront walk has been divided into several “themed” areas, each emphasizing the heritage of commercial fishing and shipping in San Pedro. The 22nd Street Marina attempts to bring San Pedro closer to the water, while a second area, the “outer harbor warehouse,” promises to provide a hotel, a fish market and a restaurant. Moving north we find the Ports o’ Call/San Pedro Slip, which will “preserve and renew the attraction of the authentic, working commercial fishing industry,” according to the project proponents. Further north still is the downtown harbor, providing a set of pedestrian linkages to downtown San Pedro, including attractions to lure downtown visitors, such as an expanded Maritime Museum. The northernmost area, known as the Piers District, will showcase the shipping industry. The Piers District is also the site of the World Cruise Center, a passenger facility that will be “complemented” by a new maritime building and what port officials describe as a “waterfront plaza.” In some ways, this optimistic plan makes itself an easy mark for cynical comments, which I don’t necessarily share. Purists, as mentioned before, will claim that the historic character of San Pedro is in danger of being obscured behind the marketing glitz; San Pedro is being marketed as a kind of imitation of itself. I dislike theming, (“This is Happiness Village here, and over there is Beautiful Vista cove.”) but I have come to understand that this is the way that designers and civic leaders provide a rationale for certain kinds of improvements. San Pedro is, in fact, a place of genuine historical interest, and if theming can remind us of that history without being overbearing, I will keep an open mind. There are worse things in the world. The most important thing is not to make San Pedro into a regional attraction—that may or may not ever happen—but to provide a breath of fresh air and a continuous waterfront to walk or bicycle to the residents of this long-neglected Navy town. Even some theming has to be better than the neglect that the district has endured, and it is certainly better than a sharp uppercut to the jaw.

WASHINGTON _ The Supreme Court's splintered decision on wetlands protection is likely to result in more litigation for federal agencies and new attention to California water boards’ expansive jurisdiction over the state’s waters. In a ruling issued in June, the justices divided three ways in a pair of cases brought by Michigan developers challenging the Army Corps of Engineers’ expansive claims of jurisdiction over wetlands remote from recognized waterways. A bloc of four conservatives led by Justice Antonin Scalia voted to significantly narrow the Corps’ power to regulate filling or clearing of wetlands, while four liberals voted to uphold the Corps’ current approach. Justice Anthony M. Kennedy cast the pivotal vote in an opinion only for himself that rejects the Corps’ existing regulations. Instead, Kennedy said the Corps has jurisdiction over a wetland only if it has “a significant nexus” to a navigable waterway. Under Supreme Court precedents, Kennedy’s opinion in should provide the controlling rule, but experts and advocates on all sides agreed the fractured ruling promises continuing uncertainty and litigation. “The decision introduced a lot more questions than answers,” said M. Reed Hopper, a principal attorney with the Sacramento-based Pacific Legal Foundation, who argued the case for the two developers before the high court. “There has to be more litigation.” Hopper called the ruling “a significant victory” because the upshot of Kennedy’s pivotal vote was to set aside the decision by the federal appeals court for Michigan upholding the Corps’ jurisdiction over the disputed wetlands in the cases. Environmental advocates acknowledged that the ruling leaves the Corps’ authority unsettled. After initial disappointment, however, some saw Kennedy’s opinion as a positive sign for environmental enforcement. “The bad sign is that it’s going to create enormous administrative headaches,” said Tim Searchinger, a senior attorney with Environmental Defense in Washington. “The good side is that Kennedy accepts in theory every argument that we’ve made for why wetlands adjacent to streams need to be protected.” In California, the State Water Resources Control Board sent out word on the day of the high court decision that the state’s all-encompassing Porter-Cologne water act may plug any gaps if federal authority is trimmed. “Our state legal definition of ‘waters of California’ is far more extensive and far more expansive than the federal definition,” said water board spokesman William Rukeyser, citing the act’s operative phrase. Like the federal Clean Water Act, state law requires a permit before filling or dredging wetlands. State and regional boards have essentially followed the Corps of Engineers’ lead on wetland issues, according to Kenneth Bogdan, a lawyer with the land use consulting firm of Jones & Stokes in Sacramento. Rukeyser said water boards may have to “polish up” the state’s procedures if federal jurisdiction changes. A building industry lawyer agreed on the broad reach of California law, but warned of likely new controversies if the state and regional water boards step into the breach left by receding federal jurisdiction. “I would not be surprised if there’s a legal challenge to the state board’s interpretation of their authority to regulate wetlands as expansively as they have articulated it to be,” said Paul Campos, general counsel for the Home Builders Association of Northern California. Regulations issued by the Corps of Engineers dating to 1977 define its jurisdiction to cover any wetlands “bordering, contiguous or neighboring” to a navigable waterway or tributary. The high court’s liberal bloc, led by Justice John Paul Stevens, said the regulation was a permissible interpretation of the Clean Water Act’s provisions. In his opinion, Scalia said the Corps’ definition went “beyond parody” to cover everything from storm drains and ditches to topographical features dry most of the time. As a narrower test, Scalia said a wetland should be covered only if has a “continuous surface connection” to a “relatively permanent, standing, or continuously flowing” body of water. In his opinion, Kennedy faulted Scalia for adding new tests not found in the statute, but chided Stevens for failing to limit the definition of “navigable waters” at all. Kennedy said his “significant nexus” test would be met “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable.” Significantly, Kennedy suggested that the wetlands in both of the Michigan cases might meet his test. In his opinion, Stevens noted the possibility that a wetland could be covered if it met either Kennedy’s or Scalia’s test. Barbara Vlamis, who has worked on California vernal pool issues extensively as executive director of the Butte Environmental Council, called Kennedy’s test “reasonable” while sharply criticizing Scalia’s definition as “narrow and myopic.” Protecting “ephemeral wetlands” is necessary to avoid “severely degraded watersheds and tributaries,” she said. Environmental experts as well as a government lawyer agreed, however, that Kennedy’s “significant nexus” test would mean more work for the Corps of Engineers to justify its jurisdiction on a case-by-case basis. “It’s going to be a mess in a discrete number of cases,” said Malcolm Stewart, an assistant solicitor general who helped write the government’s brief in the case. Bogdan noted that applying either of the tests poses special difficulties in California and other parts of the West, where water channels are often dry for parts of the year. “This is a land that’s filled with different kinds of wetland water resources where the hydrological connection to a traditional waterway is challenging,” he said. In his opinion, Kennedy, a native Californian, noted that the Los Angeles River “often looks more like a dry roadway than a river,” but has periodic releases of “powerful and destructive” volumes of water. For their part, critics of the Corps of Engineers’ approach saw the ruling as a message to the agency to cut back rather than try harder to claim jurisdiction over wetlands with tenuous connections to recognized waterway. “It’s time for the federal government to take a step back and heed the admonishment in the to defer to local and state regulators in their role on land use decisions,” Campos said. Kennedy in his opinion and two other justices in separate opinions urged the Corps to try to write rules defining its jurisdiction more precisely. Chief Justice John G. Roberts Jr., who voted with the conservative bloc, noted that the Corps had opened a rulemaking process following the court’s 2001 decision in , 531 U. S. 159, 168 (see , May 2001, , February 2001). That decision barred the agency’s jurisdiction over “isolated” wetlands. The rulemaking process “went nowhere,” Roberts said. Liberal Justice Stephen G. Breyer delivered a similar message. “Today’s opinions, taken together, call for the Army Corps of Engineers to write new regulations, and speedily so,” he said. The Case: , No. 04-1034, 06 C.D.O.S. 5260, 2006 DJDAR 7661. Filed June 19, 2006. The Lawyers: For Rapanos: M. Reed Hopper, Pacific Legal Foundation, (916) 419-7111. For the U.S.: Paul Clement, solicitor general, (212) 514-2203. Contributing Editor Kenneth Jost, a former editor of the , is Supreme Court editor for .

A little more than a year after hurricane Katrina turned New Orleans into a r eal-life Atlantis and focused scrutiny on flood-imperiled cities nationwide, California voters will be asked this fall to spend billions to prevent a Katrina-size disaster in the heart of their own state. But despite widespread agreement that something must be done about the aging system of levees, the $4.09 billion flood bond’s prospects on November 7 seem uncertain at best. For one thing, voters appear to be in a tight-fisted mood. Offered relatively painless opportunities to spend money on two feel-good programs — borrowing to build libraries and taxing rich people to finance pre-school — voters on June 6 rejected both propositions by wide margins. The November general election could be an even more troubling environment for spending proposals. The flood measure is one of five major bonds on the November ballot. The collective price tag is a record-setting $42 billion, a deluge of prospective borrowing big enough to daunt even the most spendthrift voter. The money would finance everything from school and road construction to low-income housing, water projects, and habitat conservation. The flood-protection bond also is carrying some extra political baggage. Levee repairs financed by the bond proceeds would be largely exempted from the rigorous analysis requirements of the California Environmental Quality Act (CEQA). That exemption is contained not in the bond bill, but in separate legislation, AB 1039, by Assembly Speaker Fabian Nunez (D-Los Angeles) and signed by the governor on May 19. That legislation also extends the CEQA exemption to seismic retrofit work conducted with the proceeds of a highway bond also on the November ballot. Water and flood-protection districts have long sought CEQA exemptions for their favorite projects, and appending such a clause to the bond might have posed a thorny dilemma for environmental advocates. Flood projects typically have the potential to disrupt riparian and aquatic ecosystems, some of the most vulnerable and compromised elements of California’s natural heritage. But actively campaigning against the bond measure because of the associated CEQA loophole would put die-hard environmentalists in the position of arguing that fish and trees are more important than farmers and homeowners. Environmental organizations so far have declined to take issue with the CEQA exemption. The bill was tailored to apply only to repairs of existing structures, not their enlargement or relocation, minimizing its effect. The Sierra Club, “concentrated on trying to insure that there would be no CEQA jailbreaks in the bonds, and it appears there were not,” state Legislative Director Bill Allayaud wrote to the group’s members, The flood bond’s more significant potential liability is its conflation of two related but distinctly different threats: possible collapse of the aging network of farm levees in the Sacramento-San Joaquin River Delta, and inadequate protection for urbanizing floodplains in and around Sacramento. The bond measure mashes them together and throws wads of money at the whole mess, leaving the precise allocation among competing ideas and priorities unspecified and subject to future negotiations between the Legislature and the governor. Yet the two problems have very different origins, involve very different sets of public-policy decisions, and have different long-term solutions. The threat in the Delta clearly has statewide significance. Some 1,100 miles of earthen levees form a precarious barrier protecting land that is generally below sea level. The Department of Water Resources (DWR) last year concluded that a moderate earthquake on one of the many seismic faults west of the Delta would cause at least 30 breaks. That would flood 3,000 homes and 85,000 acres of cropland, close the Port of Stockton and two highways, disrupt electricity and natural-gas supplies, and send 300 billion gallons of sea water toward the pumps supplying drinking and irrigation water to two-thirds of California through the Central Valley Project and State Water Project. The other Central Valley flooding issue pertains to urban development in the floodplains of the Sacramento and American rivers. Multiple dams and 1,600 miles of levees protect about 400,000 people in and around Sacramento, which faces the highest risk of flooding of any major American city, according to the Sacramento Area Flood Control Agency (SAFCA). The agency has spent more than $300 million during the past 10 years repairing, strengthening and raising levees, and estimates it needs to spend twice that much again. However, it is hard to make the argument that taxpayers statewide have an obligation to defend floodplain development in the Sacramento region. Supporters of the flood bond may find it difficult to craft a clear campaign pitch for a measure that makes no meaningful distinction between the two types of threats. The fact that development continues unabated in the flood prone Central Valley may not help the campaign, either. According to an analysis of regional development plans conducted in Katrina’s wake by the , at least 115,000 new homes are in the pipeline for land in the valley that is protected by levees and has been flooded repeatedly in the past. The total, according to the newspaper’s analysis, could be as high as 170,000 units, but no one really knows because no single agency keeps track. “Levees are piles of dirt,” Jonas Minton, a former deputy director at DWR now with the Planning and Conservation League, told the . “They have a tendency to fail. If people are living behind levees, many feet below the water surface, it is only a matter of time ’til some of them flood.” The flood bond does contain one unambiguous objective: It would commit the state to developing a formal Central Valley flood plan to replace the mishmash of statutes and structures that have developed over the past century without any real coordination or oversight. According to Alf Brandt, a consultant to the Assembly Committee on Water, Parks and Wildlife, this comprehensive approach is a direct response to the landmark decision in (113 Cal.App.4th 998; see , January 2004). In , the Third District Court of Appeal concluded that the state’s acceptance of substandard levees made it legally and financially responsible for the failure of those structures even if it had nothing to do with building or maintaining them. Contacts: Alf Brandt, Assembly Committee on Water, Parks and Wildlife, (916) 319-2096. Bill Allayaud, Sierra Club, (916) 557-1100. Disaster Preparedness and Flood Prevention Bond Act of 2006: http://leginfo.ca.gov/pub/bill/asm/ab_0101-0150/ab_140_bill_20060519_chaptered.html