Mobilehome park owners in the City of Montclair can proceed with a federal lawsuit alleging that the city's rent control law is a regulatory taking, the U.S. Ninth Circuit Court of Appeals has ruled. A federal district court had dismissed the lawsuit filed by mobilehome park owners because a similar suit was making its way through the state court system (see CP&DR Legal Digest January, 2000). However, the litigation ended early this year when the state Supreme Court refused to review an appellate court decision upholding the city's rent control law because it advanced a "legitimate government interest." Because the circumstances have changed, the district should now hear the federal case, the Ninth Circuit ruled. In June 1998, Montclair adopted an ordinance amending a previous mobilehome rent control measure. The new ordinance limited rent increases to 3% to 8% annually and prohibited park owners from requiring tenants to sign long-term leases that were exempt from the city's rent controls. The city did allow park owners to request higher rents based on operating costs. In August 1998, park owners sued in both state and federal courts. They claimed that the ordinance was unconstitutional because it violated due process protections and was an uncompensated taking. U.S. District Court Judge Manuel Real dismissed the federal lawsuit because, under Younger v. Harris, 401 U.S. 37 (1971), federal courts do not take up cases that would interfere with state court proceedings. Park owners appealed, arguing that state courts "do not permit plaintiffs to instigate inverse condemnation proceedings to redress uncompensated takings and thus do not grant the appropriate remedy guaranteed by federal law." In other words, the lawsuits were not the same. While not getting into details, the Ninth Circuit said Judge Real was correct. "The district court's timely dismissal of the Association's federal lawsuit precluded any federal interference — real or perceived — with the California courts' consideration of the Association's state law claims," Judge Diarmuid O'Scannlain wrote for the unanimous three-judge panel. However, O'Scannlain continued, " ecause materially changed circumstances have rendered moot the district court's reasons for abstaining and dismissing the Association's federal lawsuit, we are disposed to vacate the district court's order." The Case: Montclair Parkowners Association v. City of Montclair, No. 99-55083, 00 C.D.O.S. 3616, 2000 Daily Journal D.A.R. 4863, filed May 8, 2000. The Lawyers: For Montclair Parkowners: R.S. Radford, Pacific Legal Foundation, (916) 362-2833. For the city: Henry Heater, Endeman, Lincoln, Turek & Heater, (619) 544-0123.

After a delay of almost a decade, the battle over how localities in California divvy up their responsibility for low- and moderate-income housing has been joined once again. The first battlefield is metropolitan Los Angeles, where the Southern California Association of Governments is engaged in a struggle with its own members over the "Regional Housing Needs Assessment" (RHNA) process � and is lobbying the state to reduce L.A.'s overall obligation to provide low/mod housing. The SCAG battle is important statewide because the six-county SCAG region is the first in the state scheduled to move through the housing allocation process. The Association of Bay Area Governments is scheduled to follow next year with other regions of the state required to update their housing allocation in years to come. What happens at SCAG is likely to determine how seriously other regions will take the RHNA process in the future. The housing allocation effort is a state-mandated process designed to give each city and county in the state a target number of units for low/mod housing � a number that local jurisdictions then use as the basis for the housing elements of their general plans. The state gives a number to each region, and then the regional planning agency � such as SCAG � must distribute the target among all the jurisdictions in the region. Thus, it's a zero-sum game � unless the region can persuade the state to reduce the overall target number. By law, the housing allocation is supposed to occur every five years � but in the recession years of the early �90s, the Legislature did not fund the allocation process and postponed it for all regions. Therefore, the SCAG allocation effort is the first of its kind anywhere in the state in almost a decade, making it especially important. Housing policy is a high-profile issue now because a booming economy has not equaled a boom in housing construction. The state recently released an analysis showing that housing production in California during the 1990s was only half the total of previous decades. And jobs-housing balance issues have become a high-priority item in Sacramento. SCAG has put a lot of effort into trying to make the process work � doing a lot of technical outreach to local governments, revising its own process and methodology, and delegating decisions to sub-regions whenever possible. Just because the process has been extensive, however, doesn't mean that it has been peaceful. The agency is currently engaged in pitched battle with some of its member jurisdictions � especially those in the Inland Empire � over how the low/mod housing should be allocated. SCAG has already negotiated with the state for a reduction in overall low/mod housing need from approximately 675,000 units to 600,000 over the next five years, and the agency is supposed to be done with the allocations by June 30. But under pressure from its members, the agency has temporarily halted its final approval process, pushed a bill in the Legislature that would provide a six-month deadline extension, and begun lobbying for a further reduction in the region's low/mod housing obligation. All these actions have apparently come as the result of a near-revolution on the part of some Southern California localities who have been unsuccessful in getting SCAG to reduce their allocation. Of the 189 jurisdictions in the SCAG region, 47 appealed their RHNA numbers to the agency's Community, Economic, and Human Development Committee. Many of the jurisdictions, such as the cities of San Bernardino and Moreno Valley, asked for reductions of several thousand units. Joe Carreras, director of comprehensive planning at SCAG, said the state's target number was so high compared to recent construction levels that it called into question the credibility of the whole process, especially in the Inland Empire. "The private market hasn't rebounded as we'd hoped," he said. Of those appeals � virtually all of which called for a reduction in the jurisdiction's target � 11 were fully accepted by SCAG's Community, Economic, and Human Development Committee, 8 were partially accepted, 26 were rejected, and 2 were withdrawn. The SCAG committee made these recommendations on April 26, and SCAG's Regional Council � the organization's governing body � was scheduled to give final approval to these recommendations at its meeting on May 4. Shortly before that meeting, however, the SCAG staff changed the Regional Council's requested action from "approve" to "receive and file". Mark Pisano, the agency's executive director, and Colin Lennard, SCAG's counsel, asked Regional Council members to consider the staff report a "progress report" and send the whole matter back to the committee level, where more public hearings would be held. The Inland Empire jurisdictions, however, reacted with anger at SCAG's proposed process changes. Allison Burns, a lawyer representing Moreno Valley, accused SCAG of Brown Act violations. San Bernardino Mayor Judith Velles, a member of the Regional Council, demanded a halt to the process rather than further committee hearings. "I say, reject the whole thing and start from scratch." Instead of starting from scratch, the Regional Council voted simply to halt the process and lobby the state for further reductions in the SCAG regional target. It remains to be seen whether they'll succeed. Regional housing policy will always be controversial in California. Housing is the only area of planning policy in which local jurisdictions must answer to the region and the state, rather than simply doing what they want � and, understandably, the cities and counties chafe under this requirement After the SCAG debacle, it is likely that the state Department of Housing and Community Development will examine how to improve the process. Both SCAG and the state Department of Housing and Community Development, for example, seem to agree that the process takes too long, and planners often work with numbers and market condition data that are two years old. Even so, it's not likely that the allocation process will go away, which means than in the long run, local governments in California will have to learn how to live with a zero-sum game.

A citizens group and an environmental organization do have a right to attorneys' fees in successful litigation regarding El Dorado County's handling of a large subdivision, the Third District Court of Appeal has ruled. However, the court tempered that right by saying that the aesthetic protections won by the groups and their members should be a factor in the awarding of fees. In other words, because they gained aesthetic protections, the groups might not get as much in attorneys' fees as they would have otherwise. The issue regards the awarding of fees under the private attorney general theory of Code of Civil Procedure §1021.5. For a party to receive fees under this theory, the litigation must "vindicate an important public right," confer a "significant benefit on the general public or a large class of persons," and impose a "financial burden on plaintiffs which was out of proportion to their individual stake in the matter." At issue is approximately $360,000 for legal work at the trial and appellate court levels. In the original case, the Third District ruled that El Dorado County's approval of the 566-lot, 7,868-acre Cinnabar development was inconsistent with a draft general plan. Families Unafraid to Uphold Rural El Dorado County (FUTURE) v. Board of Supervisors, (1998) 62 Cal.App.4th 1332; see CP&DR Legal Digest, May 1998. In the attorneys' fees portion of the case, neither the county nor the developer, Cook Ranch Partners, disputed that the action enforced a public right and provided a significant public benefit. However, they argued that the financial burden of litigation for members of FUTURE and the Foothill Conservancy were not out of proportion with their stake in the matter. El Dorado Superior Court Judge Winslow Christian ruled for the county and the developer, which is the real party in interest. The Third District, in a 2-1 ruling, reversed the lower court. The court pointed to undisputed declarations that the lead attorney, who is a member of FUTURE, and plaintiffs who own property in the vicinity stand to lose nothing financially if Cinnabar is developed. In fact, the high-end, large-lot development could actually increase their property values. And landowners would receive compensation for any small strips of property condemned to allow road widening, the court noted. The court dismissed the argument from the county and the developer that the project opponents were simply NIMBYs. "The fact is that ‘nimby' plaintiffs are often at the forefront of private environmental enforcement in the public interest. CEQA enforcement is built on such private enforcement," Justice George Nicholson wrote. But the court tempered its decision by citing the First Appellate District's ruling in Williams v. San Francisco Bd. of Permit Appeals, (1999) 74 Cal.App.4th 961. In Williams, the court concluded that a plaintiff's personal interest — under the §1021.5 financial burden criterion — can include aesthetic interests. In Williams, a landowner successfully sued to prevent construction of a four-story apartment building next to his single-family Victorian home. The Williams court refused to award attorneys' fees because the homeowners' "interest in maintaining the aesthetic integrity of his immediate neighborhood and protecting both his property's privacy and its access to light, air and views, constitutes an ‘individual stake' equally as significant as a purely pecuniary one." In remanding the case, the appellate panel directed the Superior Court to consider "plaintiffs' non-financial interests" in both the trial and appeal. But Nicholson did add this warning: " or an aesthetic or environmental interest to block an award of attorney fees under the ‘financial burden' criterion, that interest must function essentially in the same way in the comparative analysis as a financial interest, clearly an objective interest. A subjective, vaguely-grounded aesthetic interest, even if ‘heart-felt,' will not be considered sufficient; nor will a mere abstract interest in aesthetic integrity or environmental preservation suffice to block an award of attorney fees." In a concurring and dissenting opinion, President Justice Richard Sims wrote that the plaintiffs are entitled to attorneys' fees but that their aesthetic interests should not be considered. Sims said Williams was wrongly decided and the court should not follow it. "There is simply no way reasonably to place a pecuniary valuation on the sorts of abstract aesthetic interests that are at issue in this litigation," he wrote. The Case: Families Unafraid to Uphold Rural El Dorado County v. El Dorado County Board of Supervisors, No. C031681, 00 C.D.O.S. 2509, 2000 Daily Journal D.A.R. 3329, filed March 29, 2000. The Lawyers: For FUTURE: Randy Barrow, Mackenroth, Ryan & Fong, (916) 924-1912. For the county, Edward Knapp, chief assistant county counsel, (530) 621-5770. For Cook Ranch Partners, Howard Ellman, Ellman Burke, Hoffman & Johnson, (415) 777-2727.

Portions of Santa Monica's rent control law have been thrown out by an appellate court because the provisions conflicted with state law. The Second District Court of Appeal said Santa Monica could not modify conditions established by state law under which landlords can increase rents for voluntarily vacated units, and the city cannot demand more information than state law requires when registering rent-controlled units. In reviewing the Costa-Hawkins Rental Housing Act of 1995 (Civ. Code §1954.50), the court found that the state "fully occupied" the field of law governing the right of landlords to establish rental rates, whether or not the units are subject to rent control. Because the field is "fully occupied," the city cannot adopt additional regulations, the court ruled. The case involved the setting of rents for rent-controlled units that have been voluntarily vacated. Under Costa-Hawkins, a landlord — effective January 1, 1999 — can set initial and subsequent rental rates for new tenancies, even for units subject to rent control. In an interim period from January 1, 1996 to December 31, 1998, landlords were limited to a 15% increase, or 70% of the prevailing market rate, after a tenant voluntarily vacated, abandoned or was properly evicted from a unit. The City of Santa Monica adopted regulations to address this interim period. The regulations defined "voluntary" and "non-voluntary" vacancies, required a four-month tenancy before a vacancy rent increase could be sought and set other conditions. In January 1997, Cabinda LLC became owner of a 20-unit apartment complex subject to the city's rent control law. In March and April 1997, Cabinda applied to the city for vacancy rent increases for three units but was denied by the city's Rent Control Board because the previous tenants left after less than four months. Cabinda filed for another vacancy rent increase in June 1998 but was again denied, this time because the tenant claimed she was harassed into leaving. Cabinda then sued, claiming that the city violated its rights under Costa-Hawkins. The landlord also sought administrative mandamus, and declaratory and injunctive relief. Los Angeles County Superior Court Judge Hugh Gardner III ruled that the city's regulations were preempted by Costa-Hawkins, so they were invalid. The appellate panel said the question before it was narrow: How fully did the Legislature intend to occupy the field of law regarding setting of rental rates? The city argued not fully because the Legislature did not define "voluntary vacancy" for purposes of interim increases, and because local entities retain jurisdiction to monitor health and safety code violations, and evictions. But the unanimous three-judge appellate court rejected both contentions. The term "voluntary vacancy" is readily understood, ruled the court, which quoted from Black's Law Dictionary and Webster's 3rd New International Dictionary. As for local jurisdiction over health and safety codes, Costa-Hawkins's specific provisions "demonstrate the Legislature's desire to preserve to local government and other local entities particular aspects of regulatory oversight, while occupying the remainder of the field itself," Justice Norman Epstein wrote for the court. Costa-Hawkins granted landlords the right to set rates, exempted certain properties, and established an interim period. "This is a comprehensive treatment of the field of decontrol of residential rental rates, indicating the Legislature's intent to fully occupy the field," Epstein wrote. The court found that Santa Monica's criteria for non-voluntary vacancies could preclude rent increases permitted by Costa-Hawkins; therefore, the local law is preempted. "The regulation not only set up additional criteria in order for an owner to utilize the authority granted by Costa-Hawkins, it also gave to the Board the power to challenge an owner's vacancy rent increase ‘if a question of fact arises' regarding the correct registered rent, and places on the owner the burden to prove to the Board that the vacancy was a qualifying vacancy. Costa-Hawkins does not preserve any such authority to the Board," Epstein wrote. The appellate court also said that the trial court properly barred Santa Monica from enforcing local regulations regarding rent registration under the Petris Act, which mandates that rent control jurisdictions with registration requirements certify permissible rent levels within certain timelines. The city can require only a tenant's name, and can only request the extensive information sought under the local ordinance, the court said. The Case: Cabinda LLC v. Santa Monica Rent Control Board, No. B133077, 00 C.D.O.S. 3743, filed May 11, 2000. The Lawyers: For Cabinda: Gordon Gitlen, (310) 883-3333. For the city: Doris Ganga, Rent Control Board general counsel, (310) 458-8781.

Available land is a rare and, therefore, valuable commodity in Santa Monica. So city officials are pleased with the opportunities they now have after purchasing about 11 acres, owned for decades by a prominent think tank, that lie adjacent to Santa Monica Civic Auditorium, City Hall and Palisades Park. "It's an incredibly strategic area," said Andy Agle, Santa Monica's deputy director of planning and community development. The city could eventually develop parks, affordable housing and office buildings on the property, which is only a block from the beach. Downtown Santa Monica is adjacent to the Pacific Ocean and contains a number of Southern California's most prominent tourist attractions, including the Santa Monica Pier, the Third Street Promenade, and the Santa Monica Place shopping mall. The Rand property separates the Promenade and the shopping mall (to the north) from City Hall and the civic Auditorium (to the south) and has therefore served for decades as a barrier to connecting those two areas. The city's redevelopment agency purchased the property this spring from Rand Corporation for $53 million. An extensive, community-based planning process for the site will likely begin this fall. The purchase of the land between Ocean Avenue and Main Street, just north of the Civic Auditorium, places a key chunk of the Civic Center district in public hands. That's important because a specific plan for the area, which the city adopted in 1993, was never fully executed. That plan assumed that Rand's property would remain in private hands but would get developed with a new Rand headquarters, affordable housing, and public open space. However, Rand officials said the city's plan for the site was not economically feasible for the company. "The city had a fairly elaborate vision of what could be done on this land," Rand spokeswoman Iao Katagiri told the Los Angeles Times. "The economics proved to be impossible for us to meet." Santa Monica has long been ruled by social activists who have not restricted growth in an extreme way, but, rather, have imposed heavy social and community requirements, such as child-care facilities, affordable housing, and transit fees, on new development projects. So Rand was receptive when the city offered to purchase the property. The nonprofit research company is one of the city's largest private employers, with about 1,000 workers. Currently, the site contains a number of Rand office buildings, some of which are dilapidated and boarded up, and a large surface parking lot. Rand has submitted an application for a five-story, 300,000-square-foot office building with an underground parking lot, Agle said. Essentially, Rand will consolidate from 15 acres down to about 3.5 acres. A motel on the site is scheduled to be torn down and replaced this summer with a four-story office building developed by Maguire Partners, one of Southern California's most prominent commercial developers, which is also based in Santa Monica. The Rand entitlement process will likely wrap up this fall, although Coastal Commission approval, which can be sticky, is needed for the project. After Rand builds its new headquarters, it will demolish the current structures, opening the site for the city's redevelopment project. At about the time Rand is scheduled to receive city approval for its new building this fall, the city will begin a public planning process, Agle said. Although the City Council has not yet established the precise structure of the process, he anticipates it will take 12 months to 18 months to scope the project, receive public comment and write a plan. The City of Santa Monica is known for emphasizing the "public" portion of the public planning process, so it will not move quickly. Once a draft plan is complete, the environmental review will commence. "It's a very significant opportunity for Santa Monica," Agle said of the newly acquired land. "It's going to be a real focus on community attention because it's such a strategic location and it presents and opportunity to address some of the critical concerns that the community has raised." Santa Monica badly needs both affordable housing and open space, and the newly acquired property could provide both, Agle said. The City Council talks of diverse population and has hoped to see affordable homes developed on the Rand site for years, as evidenced by the 1993 Civic Center plan. Real estate prices make affordable housing development difficult in Santa Monica, a city whose tough rent control laws have been partially overridden by recent state legislation (see Legal Digest, page 9). In fact, a recent study by the city found that a new state law that lets apartment owners raise rents on vacant units to market rates cost the city 2,000 units affordable to low-income and very low-income households. Rental rates have jumped an average of 41% to 75% for the vacant units. City housing officials project that Santa Monica will lose 3,800 units, or 15%, that were once affordable to families earning 80% of median income. All of these factors put momentum behind the idea of affordable housing development on the newly acquired property. The open space concept is appealing because the property is cater-cornered to heavily used Palisades Park, which overlooks the Pacific Ocean. The city considers the bluff-top park one of its prime assets, and the park could conceivably be extended into at least a portion of the newly purchased property. Acquiring the Rand site also allows the city to tie together the pier, the park, the Civic Auditorium, City Hall, a courthouse and Santa Monica's lively downtown. The upcoming planning process offers the opportunity to rethink the relationships of all the land uses in the area, Agle said. Contacts: Andy Agle, Santa Monica planning and community development department, (310) 458-2275. Santa Monica website: www.ci.santa-monica.ca.us

The City of Livermore and Alameda County are close to completing a specific plan that provides for the development of 3,200 acres and the conservation of 10,300 acres of farmland and open space. However, a Sierra Club-backed urban growth boundary initiative that appears headed for the Alameda County ballot in November could throw the project into question. The city and county are in the midst of conducting approximately 17 workshops and public hearings on the North Livermore Specific Plan. City and county planners say the plan provides for 12,500 much-needed housing units in job-rich eastern Alameda County. Fees from development of those homes will provide about $50 million to fund rural land acquisitions and open space easements, which would preclude additional development on neighboring hillsides. The specific plan marks the cooperation of the city and county, which fought each other in court over development in the area during the mid-1990s (see CP&DR, September 1994). However, if voters in November approve the urban growth boundary initiative, for which the Sierra Club submitted signatures in mid-May, the North Livermore Specific Plan could effectively be invalidated. It is uncertain whether Livermore and Alameda County can both complete specific plan adoption prior to the November 7 election. The Sierra Club has come out against the plan because of the development's affects on traffic, air quality and quality of life. On the opposite side is the 90-member Tri-Valley Business Council. The organization has not taken a formal stance on the specific plan because it is still reviewing details, but the group does back development in North Livermore, Council President Tom O'Malley said. The Livermore general plan calls for development in North Livermore, and the area needs more homes for current and future workers, he said. In 1993, Livermore adopted the North Livermore general plan amendment, which called for dwelling units to accommodate about 30,000 people in an area north of I-580. At about the same time, Alameda County was approving the East County Area Plan, which had alternatives for up to 60,000 people in a broader area. Landowners sued the city, and the city sued the county. All sides settled in 1995 when the city and county agreed to a joint planning process overseen by a committee of two city planners, two county planners and one landowners' representative. "It's an amazing group," said Joe Runco of SWA Group, the specific plan's lead planner and urban designer. "It's remarkable that a project like this could even get this far." Planners first conducted an open space feasibility study, which concluded that a density bonus program and development fees could result in permanent protection of vast tracts of rural areas in northeastern Alameda County. Planners then melded the earlier city and county plans, which called for similar housing production, urban growth boundaries and local-serving commercial development, said Chris Bazar, an Alameda County senior planner. Volume I of the resulting specific plan addresses the 10,300 rural acres, all but 425 of which will remain unincorporated. The plan creates a 1,550-acre rural management/agricultural enhancement area that would serve as a transition zone north of the urban area. Agriculture, large-lot residential development, limited tourist commercial uses and golf courses would be among the allowable uses. In the hills west of the urban area lie 1,675 acres that would provide wildlife habitat and open space. Just over half of the project area, 7,100 acres north and west of the urban area, would be designated for large-lot agriculture and habitat protection. Volume II addresses the 3,200-acre urban area. The 12,500 residential units would be built in densities of 0.2 units to 35 units per acre, with no more than 3,000 units being constructed in a five-year period. The plan calls for 700,000 square feet of commercial development, about two-thirds of which would lie in a "village core." Also included are 22 neighborhood parks, 90 acres of community parkland and eight schools. The plan is an attempt to interconnect the various pieces of the overall development, SWA's Runco said. There are more than 100 landowners in the specific plan area, including about 40 in the proposed urban area. Balancing homes and jobs The plan does contain some New Urbanist components. A fairly tight street grid is in the plan. An extensive trail system is planned, and 30% to 40% of residences will be within a 10-minute walk of the village core, which is intended to serve locals. Nearly all residences will be within a half-mile of an elementary school. However, there will be little employment within the new urban area, and planners concede the development will be heavily auto-dependent. That is not encouraging for motorists stuck on the already congested I-580 freeway that links the East Bay with bedroom communities in San Joaquin and Stanislaus counties, or the even more crowded I-680 freeway, which ties the East Bay to Silicon Valley. Traffic is a major concern of the Sierra Club, which notes that the EIR lists significant, unavoidable impacts from the North Livermore project. Mike Daley, conservation coordinator for the Sierra Club's Bay Chapter, said that what is planned as a new town in North Livermore is unwarranted. Under the initiative, cities would be required to grow within urban growth boundaries, and the county would be out of the development business, he said. For the North Livermore project to go forward, Livermore would first have to receive Local Agency Formation Commission approval to annex the area, he said. The initiative would leave adequate room for growth around cities, said Daley, who pointed to infrastructure problems faced by proposed developments. "We're not saying housing and development cannot occur in these areas," he said. Furthermore, the initiative tightens requirements for affordable housing on all projects of at least 20 units, he added. But the Tri-Valley Business Council's O'Malley said the North Livermore development probably should be even denser than proposed, even though its average of 6.2 units per acre is roughly double the rest of Livermore. Smart growth criteria mandate dense housing, he said. "I think this could be a pilot project to show how high-density could be done in fine fashion," said O'Malley. He said that planners have been stunned to hear anyone arguing for more density in the Tri-Valley area, which is characterized by large tracts of single-family homes and low-rise industrial parks. The area needs more middle-class housing, O'Malley said. Workers are already forced to commute from Tracy and Modesto, and every indication is that industrial growth is moving east from Pleasanton to Livermore, he said. "We have to do more to start providing housing for our work force," O'Malley said. City officials would agree with that statement. With North Livermore built out, Livermore will have an estimated 1.29 jobs per housing unit, said Will Kettler, an associate planner for the city. Without the development, that ratio goes to 1.7 jobs per home, which is higher than the city wants, he said. The county's Bazar said the plan is remarkable for its protection of more than 10,000 acres of rural land. A development fee of $25,000 per acre will go to a land trust for purchasing property and easements � which is the cornerstone of the specific plan's resource conservation program. Besides protecting and enhancing natural resources, the fee also prevents area landowners from getting divided into haves and have-nots. That's especially important because planners essentially drew a line at May Road to divide the urban area and the lightly developed transition zone. There is no obvious topographic break. Market studies suggest the $25,000 fee will not sink the project, Bazar said. "I think we're really setting a pretty strong precedent here," he said.  The plan is the first to consider urban versus non-urban uses for a wide area of the East Bay, and to draw a line between the two, said SWA's Runco. "I can't think of another single development project where developing the urban area protects the rural area at a ratio of four to one," Runco said. Both the Livermore City Council and the Alameda County Board of Supervisors must approve the specific plan. The planning commissions for each jurisdiction are scheduled to make recommendations this summer, but no dates have been set yet for the elected bodies to consider the plan. Comments on the draft environmental impact report were due June 2, although planning commissioners were considering extending the deadline. Contacts: Chris Bazar, Alameda County Planning Department, (510) 670-5400. Will Kettler, Livermore Planning Division, (510) 373-5200. Tom O'Malley, Tri-Valley Business Council, (925) 890-1892. Mike Daley, Sierra Club Bay Chapter, (510) 848-0800. Joe Runco, SWA Group, (415) 332-5100.

Describing the closing of a military base as successful might strike some people as a poor choice of words. Anybody acquainted with base closures knows they are traumatic events. The initial trauma, of course, is the loss of jobs and resulting economic depression that befall surrounding communities. The secondary trauma, which happens more slowly, is the series of barriers that communities encounter in their efforts to reinvent a base into an office park or airport. Redeveloping bases can be difficult because basic infrastructure — roads, sewers, electricity distribution — is often outdated or lacking. And the Pentagon can be a stumbling block until it agrees with local officials on a property appraisal. Without a conveyance agreement from the Pentagon, redevelopment plans cannot move forward. In the case of McClellan Air Force Base in Sacramento County, however, it is finally possible to talk about a successful base closure without a hint of irony. With final closure just over a year away, the conversion process is already well underway to change McClellan AFB into McClellan Park, a master-planned business park with an ultimate buildout of 17 million square feet of commercial space. Already, private businesses have leased about 1 million square feet of industrial space on the base, and several million more currently are under negotiation. One of the tenants, Arctic Slope, is an aircraft maintenance outfit that has obtained permission from the Pentagon to use military runways for commercial purposes. McClellan, in fact, is the birthplace of what is known locally as Hot Turnover — the military base that starts the conversion process long before the official closure date, creating a new job base before the military leaves. As such, McClellan probably represents the most progressive thinking in base reuse anywhere. The stakes are large at McClellan, where 10,000 people, both civilians and military personnel, worked in 1995, and where about 4,000 work now. As one of only five of aircraft maintenance depots in the country, McClellan is a highly developed industrial complex. Although military bases rarely translate easily into commercial real estate, McClellan is the exception. The base has 8 million square feet of space available for lease, almost evenly divided among office space, industrial, and research-and development and warehousing. "Sacramento is a great place to do a case study of base closure," said Rob Leonard, executive director of the county's base reuse department. Sacramento has experienced base closures in all three rounds of base closures under the Base Realignment and Closure Act of 1988. The final round, in 1993, represented the biggest blow when the county was threatened with the loss of McClellan, one of its largest employers. A major setback preceded the current planning effort of converting McClellan into a private business park. Under a program known as "privatization in place," McClellan would have preserved several thousand jobs on the base by auctioning off different "workloads" to private companies. The Pentagon, however, rejected the plan, and made McClellan compete with Hill Air Force Base in Utah for the privilege of performing maintenance work for the Air Force. In 1998, Hill won the competition. Losing the competition "put a high-intensity light on the re-use of McClellan," Leonard said. The upside was that the planning that had gone into the "privatization in place" competition could now be applied to a different closure scenario. Another potential impediment was the changeover of responsibility for utilities, from the base to the local utility provider. In the past, "there was a reluctance on the part of the local utility to provide service to a base because the utility needed to upgrade systems, and there would be no ratepayers" to support the upgrades, according to Tony Gallegos, western regional director for the Office of Economic Adjustment, the Defense Department agency that coordinates base closures. In the case of McClellan, however, the Air Force agreed to become a ratepayer of the local utility, Sacramento Metropolitan Utility District, enabling the utility to get a head start on upgrading electrical service. Meanwhile, county officials are negotiating with Northridge Water District and PG&E to provide water and gas to the base; county sewer and storm-drain agencies plan to provide services to the base before closure. Particularly innovative is the lease agreement that the Pentagon signed with the base in 1998. The structure of the lease is uniquely flexible, because it is additive: Whenever the developer finds a tenant for an available vacant building on the base, the developer can amend the lease with a "serial supplement," that adds the building to the county's leasehold. This type of lease has a number of advantages for both sides. The military maintains control of most of the base, and carries the cost of maintenance. The developer has the option of marketing many different buildings to potential tenants, without being obliged to pay for their maintenance. Known as McClellan Park LLC, the development team is made up of Larry Kelley, developer of the master-planned Stanford Ranch in Rocklin; Industrial Realty Group of Redondo Beach; and Morgan Stanley Real Estate Fund III. New tenants at the base are expected to minimize the impact of the military departure. When McClellan AFB closes next year, in fact, about 4,000 jobs will remain, or roughly the current level of employment with the military in place. In short, McClellan will be that unheard of event: A base closure without a net loss of jobs. The military worked closely with local officials in 1998 to formulate a mutually acceptable appraisal of $90 million, to be paid over 40 years. Local officials are hoping the military will waive that purchase price under the "No Cost Economic Development Conveyance" program that allows local authorities to assume ownership if they spend more than the purchase price on infrastructure or rebuilding. The developer has agreed to buy the land from the county for $90 million after title is transferred from the federal government, whether or not the county itself pays for the base. The creation of what will likely become the largest industrial center in Northern California is newsworthy enough. The real importance of McClellan, however, is the example it provides of keeping the lights on at the base after the military plays taps for the last time. The only sad part is that the Pentagon, the largest single purchaser of research in the country, did not figure this out 12 years ago, before the cycle of base closures dealt pain to hundreds of communities in California and elsewhere.

A county's mobilehome rent control ordinance applies for people who live in recreational vehicles for at least nine continuous months, the Sixth District Court of Appeal has ruled. The court said that Santa Cruz County's Mobilehome Rent Adjustment Ordinance applies to about 20 sites in a travel trailer and resort facility because residents of those sites have lived there continuously for nine months or more. The controversy began when Willows Resort owner Harold Griffith eliminated central garbage collection service and advised residents to obtain individual service. Willows Resort residents complained to the county. A hearing officer then ruled that Griffith, under the county's mobilehome rent adjustment ordinance, had to reduce rents by $11.60 per month (the cost of garbage collection) for about 20 sites where people had maintained residences for at least nine months. Griffith sued, arguing that the county ordinance is pre-empted by state laws prohibiting commercial rent and regulating mobilehome parks. Santa Cruz County Superior Court Judge Robert Yonts ruled against Griffith, who then appealed. A three-judge panel of the Sixth District upheld the trial court's decision. The court said that Griffith is subject to two state laws, the Mobilehome Parks Act (Health & Safety Code §18200) and the Recreational Vehicle Park Occupancy Law (Civ. Code §799.20). The Mobilehome Parks Act governs construction and operation of mobilehome and recreational vehicle parks. The recreational vehicle law addresses tenancies. Because the issue in this case is the right of tenants, the Mobilehome Parks Act, which Griffith argued preempts the county ordinance, does not apply, the court said. The recreational vehicle law gives "nine month" tenants rights similar to those of permanent mobilehome park tenants, the court ruled. The state prohibition of commercial rent control specifically exempts a mobilehome park, which Griffith runs for the 20 units in question, the court held. The Case: Harold Griffith v. County of Santa Cruz, No. H019474, 00 C.D.O.S. 2998, 2000 Daily Journal D.A.R. 4021, filed April 18, 2000. The Lawyers: For Griffith: Douglas Allen, (408) 298-6540. For the county: Pamela Fyfe, assistant county counsel, (831) 454-2040.

For the past decade, the Los Angeles Department of Water and Power has been preparing to tap a significant new supply of water to help meet demand in its growing service area. Yet, after investing $55 million in a pipeline and related facilities, the DWP put the project on hold in late April, just days before it was to begin operation. The reason was a loud, albeit belated, public outcry about the source of that new water: the Donald C. Tillman Water Reclamation Plant, which treats municipal sewage in the San Fernando Valley. The disruption of DWP's plans, even if the halt turns out to be temporary, illustrates the magnitude of the continuing public-relations challenge facing water managers as they try to tap a promising supply to meet the needs of California's booming population — namely, treated wastewater. As water gets more expensive and demand grows, wastewater recycling is expected to increase substantially. The State Department of Water Resources projects wastewater recycling will increase by about 60% to 577,000 acre-feet by 2020, and has identified the capacity for 1.4 million acre-feet a year if all potential projects identified in its 1995 survey of water providers were implemented. The DWP planned to pump treated effluent 10 miles to a spreading grounds in Sun Valley, where the liquid would percolate into the aquifer. That water, having undergone natural filtration during the long percolation process, would mix with natural groundwater and eventually would be pumped back out from wells more than a mile away, whereupon it would be chlorinated, mixed with water from other sources and piped to consumers. It would take about five years for the wastewater to complete its journey back into the municipal water system. The project would provide about 35,000 acre-feet a year — enough to supply 70,000 households in Los Angeles. Despite assurances by state and local health officials that the treated water would pose no health threat, local residents and their political representatives balked when they learned about the imminent startup in a series of local newspaper stories. New public hearings have been scheduled, even though the project was thoroughly aired during at least three phases of the planning and permitting process. Even the city's mayoral candidates have jumped on board, criticizing the lack of public involvement. "This is exactly the kind of issue that people have a right to make their own decisions about. It's their money, it's their water, it's their lives and they have to be consulted," Los Angeles City Councilman and mayoral candidate Joel Wachs told the Los Angeles Daily News. The resistance is not particularly surprising. The prospect of drinking former toilet water, no matter how much it has been purified by artificial and natural processes, generates what water managers refer to as the "yuck factor" — an almost insurmountable, visceral reaction that is not easily countered with testing data and epidemiological studies. However, there is nothing new or rare about the use of reclaimed wastewater in California. According to a September 1999 report by the State Water Resources Control Board's Office of Water Recycling, an estimated 364,595 acre-feet a year of municipal wastewater is currently being used. It is produced by 221 treatment plants, representing 45 of California's 58 counties, and is used at about 4,380 sites. By far the largest use is agricultural irrigation, which consumes 177,622 acre-feet a year. Landscape irrigation and impoundments rank second, at 67,776 acre-feet. Groundwater recharge, a category that includes the possibility of eventual residential use, is third at 38,489 acre-feet, followed by wildlife habitat, 27,174; industrial use, 18,418; recreational lakes and ponds, 17,854; and combating seawater intrusion, 10,141. Wastewater reclamation projects are particularly popular in semi-arid Southern California, which relies on imports for most of its municipal and industrial water supply. Imported water is expensive, and Los Angeles in particular has seen significant reductions in its supply. California, which uses of 5.2 million acre-feet of Colorado River water annually, will soon be cut back to its legal entitlement of 4.4 million acre-feet, with most of that extra 800,000 acre-feet to be subtracted from the Metropolitan Water District's supply. Recent court settlements have reduced the amount of Owens Valley and Mono Basin water available to Los Angeles by 10%. And deliveries from the State Water Project have been curtailed to prevent harm to endangered fish. Increasingly, reclaimed wastewater looks like a promising alternative to imported supplies. Already, 76 such projects are in operation in a six-county Southern California area: 19 in Los Angeles County, 16 in San Bernardino, 13 in San Diego, 12 in Riverside, 11 in Orange and five in Ventura. The rising cost of imported water has made reclaimed water economically competitive, despite the need for expensive treatment. The price of water supplied by the LADWP's East Valley Water Reclamation Plant will be about $500 an acre-foot; the MWD now charges $431 an acre-foot for drinking water. Still, the public needs convincing. As long as reclaimed wastewater irrigates golf courses, cemeteries, freeway medians, and pastures, or is pumped through industrial cooling systems, the public does not seem to care. What prompted the April backlash against the San Fernando Valley project was the likelihood that water sent down the sewer would eventually return via the kitchen faucet. Similar concerns helped torpedo a similar project last year in San Diego. A 1995 proposal to release treated wastewater upstream from a huge Miller Brewing Company plant in Irwindale prompted a similar outcry — along with a spate of jokes — which forced that project to be scaled back and redesigned. (Beer drinkers no longer need fear that the water they flush down their toilets will return to them in six-packs.) Nevertheless, residential customers throughout California already drink water that has passed through a municipal sewer plant, whether they know it or not. Some of that reuse is intended and is the result of carefully designed projects; the rest is what the Office of Water Recycling refers to euphemistically as "unplanned reuse." The latter consists of much of the State Water Project's supply, which is drawn from the Sacramento-San Joaquin Delta. Nearly every municipal wastewater plant in the Sacramento River watershed upstream of San Francisco Bay releases treated effluent into the river or its tributaries, and an indeterminate portion is pumped into the California Aqueduct. And water agencies throughout California pump groundwater that is a mixture of pristine sources and surface water that has percolated underground after washing over city streets, farm fields and other potential sources of contaminants. Still, there is something uniquely disturbing about the direct conceptual link between toilet and tap, as embodied by such projects as the LADWP's East Valley Reclamation Project. Water managers probably will never overcome the "yuck factor" entirely; if they hope to realize the promise of this largely untapped resource, they must either restrict its use to nonresidential customers or do a better job of enlisting the support of local politicians. Contacts: The WateReuse Association, (916) 442-2746. Lynn Johnson, chief of the Office of Water Recycling, (916) 227-4580. Los Angeles Department of Water and Power Public Affairs office, (213)-367-1361. Joel Wachs, Los Angeles city councilman, (213) 485-3391.

A Subdivision Map Act provision that gives local government a maximum of 120 days to acquire an interest in land upon which a subdivider is obligated to build improvements applies only in cases where the improvements are a condition of final map approval, the Fifth District Court of Appeal has ruled. A developer in the City of Clovis contended that such a narrow reading of Government Code §66462.5 would place an undue burden on the subdivider because a city could wait decades before acquiring off-site property, forcing the developer to bear a greater expense than originally contemplated. But the court held that if the off-site improvements are not a condition of final map approval, the local government and subdivider can set a time limit as part of a development agreement. In February 1990, Clovis and landowner William Tatham Jr. signed a subdivision agreement that called for Tatham to extend Temperance Avenue from the project to Shaw Avenue, a major thoroughfare. The city approved a final map for Tatham later that same month. In October of 1990, the city signed an agreement with N.T. Hill, who had acquired Tatham's interest in the project. The contract had roughly the same conditions. The city approved a second final map for the other portion of the subdivision that same month. Hill developed the two housing tracts but never extended the road. The city and Hill then sued each other for a variety of reasons based on the other side's alleged breach of contract, and they went through extensive legal contortions before arriving at the appellate court. The issue before the three-judge panel was narrow — the applicability of the 120-day requirement. Hill argued that the requirement applied to any condition relating to off-site improvements when neither party holds sufficient title to the land. Thus, because Clovis did not acquire the property for the road extension within 120 days, Hill contended he was not obliged to complete the work. Clovis countered that the 120-day limit applies only when a local body postpones or refuses approval of a final map because the off-site improvements have not been completed. Upholding Fresno County Superior Court Judge Gary Austin, the Fifth District said Clovis was right. The court relied heavily on the legislative intent behind AB 3452 from 1982, which created the Subdivision Map Act provision in question. "The concern which generated the enactment of §66462.5 is that a city or county could … completion of all improvements before approval of the final map, even when completion is made impossible as a result of the local body's own failure to obtain sufficient title," Justice Timothy Buckley wrote for the unanimous court. The law was intended to prevent a local government from holding up development by delaying off-site property acquisition necessary for project completion. Furthermore, the law specifically allows the local agency to require a subdivider to enter into a contract for completion of off-site improvements when the local agency acquires adequate interest in the land, Buckley noted. In this case, there were two such agreements, but they contained no specific term for Clovis to acquire the land. If Clovis' delays had interfered with Hill's ability to execute his part of the contract, Hill could have sued to enforce the contract's conditions, the court added. " y limiting §66462.5 to those instances in which approval of the final map is refused, this court does not impose an unjust burden on subdividers, nor does it create unreasonable consequences inconsistent with the legislative purpose," Buckley wrote. "Indeed, by refusing to expand §66462.5 as appellants advocate, the court will leave a carefully balanced legislative scheme intact." The Case: N.T. Hill v. City of Clovis, No. F032045, 00 C.D.O.S. 3321, 2000 Daily Journal 4563, filed April 28, 2000. The Lawyers: For Hill: Barbara McAuliffe, Motschiedler, Michaelides & Wishon, (559) 439-4000. For Clovis: Jerome Behrens, Lozano, Smith, Smith, Woliver & Behrens, (559) 431-5600.

A proposal from Cisco Systems to build a 6.6 million-square-foot campus for up to 20,000 workers in south San Jose has focused attention on the Silicon Valley's housing shortage. Cities and counties south of San Jose feel threatened by the continued industrial development in Silicon Valley because more and more technology employees are commuting from places like Hollister, Salinas and Santa Cruz. The City of San Jose, however, says it has long carried more than its fair share of the housing load and the city needs more jobs. And regional planners predict the Bay Area will create 400,000 jobs — but only 100,000 new homes — during the next 10 years. In the meantime, the housing market continues to tighten. The median single-family home price in Santa Clara County rose 38% in one year to $540,000 in March, according to California Association of Realtors. In a seven-county Bay Area region, the median hit $447,000 in March, a 28% jump. Although incomes are high for professionals, the National Association of Homebuilders now says that the five least affordable housing markets in the United States are in or adjacent to the Bay Area. The effects spiral outward from Silicon Valley to San Francisco, the far reaches of the Bay Area, the San Joaquin Valley and rural areas south of the Bay Area. The real estate prices — combined with traffic congestion created by people forced to commute long distances — are getting the attention of state lawmakers. Now it appears that Silicon Valley's skewed jobs-housing picture is driving much of the land-use policymaking occurring in the state Capitol. Coyote Valley calls Computer networking giant Cisco Systems has proposed a 6.6 million-square-foot campus on 688 acres in North Coyote Valley. The land is within the City of San Jose's urban growth boundary (called the Greenline) but has remained mostly agricultural. Cisco would construct the $1.3 billion project over five to ten years, and 20,000 people would work on the site at build-out. Cisco has applied for a rezoning to allow compact development — and retain nearly 300 acres of open space. A draft environmental impact report has been circulated and could go before the City Council this month, said Joseph Horwedel, San Jose deputy planning director. Cisco planners say they picked the site because the area has been designated for industrial growth since 1983, transit is available, the site would spur a "reverse commute," and new houses are planned nearby within San Jose. "We chose the North Coyote Valley for several reasons, one of which is that it was planned precisely for this type of project many years ago through a community and public process," said Cisco spokesman Steve Langdon. "And it is well-situated for public transit, with Caltrain on one side of the site and light rail planned on the other side." The reverse commute comes about because so many people now live in San Jose and head north every morning to the job-rich cities of northwest Santa Clara County, such as Sunnyvale, Mountain View and Palo Alto. Cisco would be the first major employer to locate south of most residential areas. But it is Cisco's location in south San Jose that has neighboring jurisdictions worried. The Cisco EIR estimates that only 20% of the workers will live south of the campus, and only 5% south of Santa Clara County. "We've already seen that that's not true," responded Salinas Mayor Anna Caballero. "Add 20,000 jobs 10 miles closer to us, and it's a natural commute. If you go north and housing prices are twice as high as if you go south, you're going to go south." Salinas has long provided housing for Monterey County farm laborers and the coastal tourism industry's service workers. But Monterey County's median income is about half that of Santa Clara County's, unemployment is double-digit, and many workers are underskilled. The result is that Salinas locals are getting priced out of the housing market, Caballero said. Salinas and other members of the Association of Monterey Bay Area Governments (AMBAG) contend the Cisco EIR is inadequate. The Cisco project qualifies as a "project of regional significance" under the California Environmental Quality Act, according to Kate McKenna, AMBAG special projects manager. However, the EIR says little about regional impacts. Planners to the south also note that although San Jose has set aside land for 30,000 additional homes in the Mid-Coyote Valley Urban Reserve and the nearby Almaden Urban Reserve, San Jose has no near-term plan to permit that housing development. San Jose officials, however, appear unsympathetic. They defend San Jose's long-range planning and suggest that outlying towns can choose how fast they grow. Moreover, they point to the city's $100-million-a-year housing program, which plays some role in the development of one-quarter of all new units in town, as evidence that the city cares deeply about sheltering its people. San Jose has 0.8 jobs per employed resident, San Jose planner Horwedel said, while cities in northwest Santa Clara County offer 1.5 to 2.5 jobs per employed resident. San Jose needs a bigger employment base to solve some long-standing budget problems, he said. The city will allow housing development in the urban reserves when several triggers are met: freeway improvement projects are underway, the city's budget is balanced for a projected five years, municipal service levels hit certain levels, and 5,000 jobs are created in North Coyote Valley. "Had we not put those triggers into the general plan, we would have long ago built that out with single-family residential, and that would not have solved anything," Horwedel said. The city continues to approve 3,500 to 5,000 new homes a year, two-thirds of which are in multi-family structures, he added. But Rob Mendiola, planning director for rural San Benito County, about an hour south of Silicon Valley, said San Jose is relying on 17-year-old general plan policies that are no longer valid. "What they are successful in doing if they implement that plan is pushing their problems off on other jurisdictions," Mendiola complained. "It seems fairly irresponsible to continue to build tens of thousands of jobs and not have a corresponding housing supply. It was irresponsible for the Mountain Views and Palo Altos to do that to San Jose years ago. They should certainly understand what they are pushing off on other jurisdictions." Technology workers have driven up housing prices in the Hollister area to the point that people who work in San Benito County must commute from small towns 50 miles away in the Central Valley. The county has responded to the growth pressures by making it difficult to increase building densities on land designated for agriculture. The Board of Supervisors also is considering a 2% annual growth cap. But there is little in the way of north-south negotiation. "It's very adversarial, which is unfortunate," added Salinas Mayor Caballero, who has sought assistance with transit and job training. "We have a totally different economy, and we're not even in the same county, so we have no pull." The new growth pressures in San Benito, Monterey and southern Santa Cruz counties are only the latest signs of the economic boom in Silicon Valley, where seven jobs have been created for every one housing unit constructed since 1995. Earlier indications can be found on Altamont Pass, which separates the Central Valley towns of Tracy, Manteca and Modesto from the Bay Area. Those three cities have grown to a combined population of nearly 300,000 while serving primarily as bedroom communities for Silicon Valley, up to 100 miles away. Not even San Francisco is immune. An estimated 500 Internet-related companies — with 40,000 employees — have set up shop in San Francisco. Those new companies, which are desperate for office space, combined with highly paid Silicon Valley technology workers who want to live in a hip atmosphere, are gentrifying some of San Francisco's grittiest neighborhoods. Business, lawmakers take notice Many of the Silicon Valley's big technology companies participate in various planning efforts, including the 175-member Silicon Valley Manufacturing Group and Joint Ventura Silicon Valley. According to SVMG President and CEO Carl Guardino, member CEOs say the biggest obstacle to continued economic growth is "homes that are affordable to working families. Almost completely tied with them is a working transportation system." To help meet those needs, SVMG spearheaded a $20 million housing trust fund (Cisco is a contributor) to assist first-time homebuyers, develop and rehabilitate affordable rentals, and shelter homeless people. On the political front, SVMG has a grass-roots Housing Action Coalition that uses "smart growth" criteria to lobby for residential developments, and a leadership council that inventories land and meets with city leaders to champion housing. The group has also led successful campaigns to raise the Santa Clara County sales tax to fund highway and transit projects. Guardino concedes that the large number of high-paying jobs has skewed the housing market. But he argued that California's government financing system — which caps property taxes at artificially low levels, gives the majority of property tax revenues to schools, and forces cities and counties to rely heavily on sales taxes — is as much to blame as anything. "We penalize cities that provide housing," Guardino observes. "Even HP is a revenue-neutral proposition for local government, even though those are tremendously high-paying jobs." More than ever before, elected officials at the local and state level appear to recognize the impacts of what is popularly called the "fiscalization of land use." The Capitol is full of bills that address land use practices, and proposals to reform local government financing are everywhere. Notably, representatives from the Bay Area's fringes are leading much of the discussion. Assemblyman Fred Keeley (D-Santa Cruz) said that what happens in Silicon Valley drives the policy debate because Silicon Valley is seen as the prime component of the state's economy, and because the technology entrepreneurs are largely apolitical. "People," said Keeley, "chase both values — a high paying job in the new economy, and an affordable house." But the political, social, economic and environmental consequences of people living two hours from the office are enormous, he said. In the Legislature, the nine bills backed by the broad-based, bipartisan Jobs-Housing Coalition appear to be a direct result of the Silicon Valley imbalance. (See CP&DR, April 2000.) The bills provide regulatory changes and financial incentives for local government to approve more housing near job centers. Other bills have been introduced that encourage transit-oriented development and require that regional housing plans contain one residence per 1.5 jobs. And Assembly Democrats have proposed a $1 billion housing package to help first-time homeowners and provide affordable rentals. However, most observers expect no systemic changes to the land-use planning process unless Gov. Davis makes the issue a priority, which he has not thus far. Local elected officials talk about transportation and they have convened regional transit meetings in recent months. They and Silicon Valley business leaders appear to have influenced Davis's recently released transportation plan, which favors the Silicon Valley over any other region of the state. But few local elected officials are willing to broach the topic of housing. Mostly they argue about regional projections for housing demand and say new houses should be built elsewhere. What's the answer? One solution would be for technology companies to spread outward to places like Salinas and Modesto. But companies show little interest in leaving Silicon Valley because that is where the talent pool and start-up companies are concentrated. Gary Patton, executive director of LandWatch Monterey County, which bills itself as a land-use watchdog, said housing subsidies and creative approaches by expanding companies are necessary. "The answer is, obviously, requiring a city to specifically tie approval of new jobs to construction of adequately priced housing in the jurisdiction that gets the new jobs," Patton said. University of California, Berkeley, City and Regional Planning Professor John Landis, who has studied the region extensively, offered an even simpler answer: Build many more housing units. "There's only one way to get out of this, and that's to build our way out of it," Landis said. "No amount of ‘good planning' or transit-oriented development is going to solve the problem. We just need more housing production, and that's a hard thing to say if you are an elected leader." Cities in northwest Santa Clara County are mostly built-out. Jurisdictions that have land available have little political will to allow large-scale housing development, Landis said. If Silicon Valley is going to house the workers, it probably means addressing the amount of land reserved as open space, Landis added. Contacts: Joseph Horwedel, San Jose planning department, (408) 277-4576. Anna Caballero, Salinas mayor, (831) 758-7201. Rob Mendiola, San Benito County Planning Department, (831) 637-5313. Kate McKenna, Association of Monterey Bay Area Governments, (831) 883-3750. Fred Keeley, Santa Cruz assemblyman, (916) 319-2027. Steve Langdon, Cisco Systems, (408) 525-1499. Carl Guardino, Silicon Valley Manufacturing Group, (408) 501-7864. John Landis, UC Berkeley, (510) 642-5918.

Making clear that the Community Redevelopment Law "is not simply a vehicle for cash-strapped municipalities to finance community improvements," an appellate court has thrown out the City of Diamond Bar's redevelopment plan. A unanimous three-judge panel of the Second District Court of Appeal ruled that Diamond Bar did not prove that its 1,300-acre redevelopment project area suffered from "blight," as defined by the Community Redevelopment Law (Health and Safety Code §§33000 et seq., 33030). The court found that the city, in establishing the redevelopment area, relied on boilerplate language and unsupported findings from a field survey. The court extensively cited another case, County of Riverside v. City of Murrieta, (1998) 65 Cao.App.4th 616, (see CP&DR Legal Digest August 1998) in which a city offered "little concrete evidence of actual conditions of blight." Diamond Bar has asked the state Supreme Court to review the case. In July 1995, the Diamond Bar City Council adopted an ordinance approving a 30-year redevelopment project for 1,300 acres. The city made the legal findings regarding physical and economic blight that presents a burden on the community and "cannot be expected to be reversed or alleviated by private enterprise or governmental action, or both, without redevelopment." Two weeks later, 12 Diamond Bar residents sued the city, claiming that the area was neither blighted nor "predominately urbanized," as required by the CRL. Los Angeles County Superior Court Judge Ernest Hiroshige ruled for the city in what the appellate court called "a terse minute order." The residents made the same arguments to the Second District, which overturned Judge Hiroshige on the question of blight. The appellate panel ruled for the city in one aspect, saying that the area was predominately urbanized because it passed the threshold of containing at least 80% urbanized land. The court found that 1,034 acres, or 79.5 percent of the land, was developed, and 191 acres of vacant land was "an integral part of an urban area." The court then proceeded step by step to address different ways the city tried to prove that the area was blighted. The court shot down all of the city's arguments. The city first argued that the area has unsafe or unhealthy buildings. But the city dropped that argument, which the court said was appropriate because a city consultant's survey found only one structure in need of "extensive rehabilitation." The city then argued that substandard building design, commercial areas with inadequate parking and small parcels inhibited economic development in the project area. But the court said the city did not identify specific buildings and based its determinations on a field survey by consultant Rosenow Spevacek Group, Inc. "At the end of the day, the raw data in the administrative record consists of a series of checkmarks reflecting the field surveyor's ultimate conclusions. The field surveyor's bald conclusions do not amount to tangible proof which can be scrutinized in a meaningful way," Presiding Justice Joan Klein wrote. Delving into the redevelopment project's details, Klein noted that although the city claimed there were buildings and lots of "inadequate size given present standards and market conditions," the city did not plan "‘power centers' in the project area to remedy this purported source of blight. Thus, there is a total ‘disconnect' between the cause of the alleged blight and the proposed remediation." The court also rejected the city's argument that incompatible uses hindered economic development. The identification of industrial uses next to an elementary school was irrelevant, as the city did not prove how the juxtaposition harmed economic development, the court ruled. The court dismissed the city's argument that small and irregular lots under multiple ownership hurt economic development. The city provided no evidence. "In addition," Justice Klein wrote, "although the City contends its commercial areas have been rendered obsolete by the shift toward large scale ‘power centers' and ‘big box' type retailers, as noted, the City has eschewed that type of development. Further, even assuming economic development requires the availability of large tracts of land, the redevelopment area contains a number of undeveloped parcels as large as 47, 41, 36, 35 and 24 acres." Finally, the court dismissed the contention that the project area lacks sufficient infrastructure. The court cited the city's 1995 general plan, which said the city "has a fairly new infrastructure." Redevelopment, the court pointed out, is not intended to deal with future growth. The Case: Barbara Beach-Courchesne v. City of Diamond Bar, No. B130244, 00 C.D.O.S. 3295, 2000 Daily Journal 4391, filed April 27, 2000. The Lawyers: For Beach-Courchesne: Murray Kane, Kane Ballmer & Berkman, (213) 617-0480. For Diamond Bar: Gregory Kunert, Richards Watson & Gershon, (213) 626-8484.