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.

Odd how the fast food joint has become emblematic of what's wrong with the modern world. The recent bombing of a McDonalds in Brittany was widely interpreted as nothing less than a shot across the bow of cultural globalization. Here on our golden shores, discussions about the merits of quick service restaurants are more measured, but the burger and burrito huts can cause high anxiety. Particularly loathed by many are drive-through facilities. These car-friendly land uses have been scoffed at for years by students of the urban form. After all, when it comes to bleating speakers, idling vehicles belching exhaust, and multiple curb cuts, what's to like? Drive-throughs have been banned in a handful of California's municipalities for many years. Now, a new generation of towns — perhaps enthusiastic about neo-traditional and smart growth concepts — have brought drive-through lanes under new scrutiny. And the fast-food industry is armed and ready. In 1999, the battle of the drive-through ended up in the state Legislature, which argued over the merits of SB 1200. The bill, introduced by Senator Charles Poochigian (R-Fresno), attempted to override local government's land use control of drive-through facilities. As proposed by the bill, cities could not prohibit drive-through facilities without the establishment of elaborate and extensive findings. Supported by the California Restaurant Association, the bill's goodwill theme was access rights for the disabled. A much watered-down version of the bill passed in September 1999. The new law simply requires that local agencies specifically notify "blind, the aged, and disabled communities" regarding hearings on permits for drive-throughs. One has to wonder how interested blind people could be in drive-throughs. Santa Barbara and San Luis Obispo have long disallowed drive-through facilities – not only for restaurants, but for banks and all other services. Santa Barbara's ban dates to 1979, and San Luis Obispo's to 1982. Probably not coincidentally, both burgs are known for both the quality and quantity of their pedestrian life. Glen Matteson, a San Luis Obispo city planner, concedes that the argument for the disabled has some merits. He acknowledges that complaints about the lack of drive-through access to fast food restaurants are heard from time to time in his bucolic city, and many complaints are in fact from disabled people. But even though the fast food lifestyle is thwarted in his town, Matteson believes the overall benefits to community remain in place. "Though the term neo-traditional was not yet in use when we passed the ordinance, the sentiment that minimizing automobile access would be an improvement to pedestrian life has seemed to prove true," he says. Like San Luis Obispo, the City of Santa Barbara also uses an ordinance to force hungry families to get out of their mini vans to purchase burgers and fries. Both cities originally used the onus of air pollution to create the legal nexus for the ban. However, using the air pollution approach is not advisable these days. The County of Santa Barbara lost its attempt to use air quality as the reason for denying a drive-through use permit for the popular In-N-Out chain in 1994. In that county, the applicant must demonstrate that the air quality impacts of a project with a drive-through would be lesser than a project without a drive-through to gain a permit. And that is exactly what the purveyor of Double-Doubles proceeded to do. Armed with a CRA-commissioned study (funded by In-N-Out, Carl's Jr., and Burger King) demonstrating that cars idling in drive through lanes for 15 minutes or less are 25% to 40% less polluting than cars that pull into the parking lot, stop, restart and leave a short time later, In-N-Out prevailed in its appeal for a drive-through. Last year, Marin County had more success with a conditional use permit process. Based on careful site review for circulation and parking issues, combined with neighborhood character review and community input, a drive-through for In-N-Out was rejected in the Mill Valley shopping center. According to Tom Lai, principal planner for Marin County, the finding for denial — which went all the way to the Board of Supervisors on appeal — was based in the fact that the site was within a "neighborhood-oriented" center, and a drive-through would endanger pedestrians and harm the character. In-N-Out proceeded with building the restaurant sans drive-through. Of the chain's 143 stores, it is one of only two without a car queue lane. As it stands today, land use authority over drive-through lanes remains with local agencies. Outright bans are still legal. Conditional use permit restrictions are upon what most jurisdictions rely. And Michael Prosio, the Restaurant Association's deputy director of government affairs, said the CUP approach is what its members prefer. "Blanket bans on drive-throughs really don't respond to the specifics of particular neighborhoods, and may preclude what some customers really want. We prefer to be allowed to address site design on case-by-case basis," Prosio said. In other words, the burger barons want the chance to drive their point home. Stephen Svete, AICP, is a principal in the Ventura-based consulting firm of Rincon Consultants, Inc.

In a case watched closely by ranchers and environmentalists, the U.S. Supreme Court has upheld 1995 grazing regulations for public lands, including about 6.7 million acres in California controlled by the Bureau of Land Management. Ranchers challenged Interior Secretary Bruce Babbitt's power to impose the new rules, which ranchers said would raise their expenses and threaten their livestock businesses. But a unanimous Supreme Court, interpreting the 1934 Taylor Grazing Act, 43 U.S.C. §315, said that the changes were not as significant as ranchers feared and that the Interior secretary did not exceed his authority. The court considered three regulatory changes made by Babbitt that changed the definition of "grazing preference," permitted people who are not in the livestock business to get grazing permits, and gave title for all future permanent range improvements to the federal government. The grazing preference issue was foremost for the ranchers, who said they have relied on the previous regulations to establish businesses and qualify for credit. The 1995 regulations make future grazing subject to "an applicable land use plan." But Justice Stephen Breyer, writing for the court, said ranchers were never guaranteed grazing rights into perpetuity and noted that the secretary has always had the authority under the Taylor act to withdraw rangeland from gazing use. As for who gets grazing permits, Breyer wrote, "The new change is not as radical as the text of the new regulation suggest. … Those in the business continue to enjoy a preference in the issuance of grazing permits." Ranchers fear that environmentalists will buy up grazing rights only to sit on the land. However, the court noted, "New regulations allowing issuance of permits for conservation use were held unlawful by the Court of Appeals and the Secretary did not seek review of that decision." As for the improvements, the secretary has the right to grant the federal government ownership, but permit holders can still own removable improvements, such as corrals, feeders, chutes and troughs, the court held. The case is Public Lands Council v. Babbitt, No. 98-1991, 00 C.D.O.S. 3782, 2000 Daily Journal 5055.

The U.S. Ninth Circuit Court of Appeals has ordered preparation of an environmental study on an already-completed freeway interchange in Washington state. On a 2-1 ruling, the three-judge panel said that the project was not exempt under the National Environmental Policy Act. "While we decline to order the interchange torn down, we direct the district court to order the requisite environmental review …" the court concluded. In 1985, the City of DuPont, between Seattle and Tacoma, identified the need for a new freeway interchange to serve a proposed Intel campus and a 3,200-acre, master-planned development proposed by Weyerhaeuser. Ten years later, the Federal Highway Administration granted preliminary approval for the South DuPont interchange subject to environmental review of the project. The state Department of Transportation planned a two-stage project. The first stage involved construction to allow access to the Weyerhaeuser project. Stage Two would entail a more complete interchange, rerouting of connector roads and reconstruction of an existing, nearby interchange. The transportation department prepared environmental reports analyzing the effects on the Fort Lewis landfill (a former Superfund site), air quality, cultural resources and two endangered species. In April 1996, the state and the Federal Highway Administration (FHWA) released a joint environmental document that concluded there would be no significant environmental impact, and said they had satisfied the criteria for both a "documented categorical exclusion" under NEPA and a Notice of Nonsignificance under Washington's State Environmental Policy Act. Construction followed. Arthur West, an attorney from Olympia, sued, claiming the project was not exempt from NEPA. District Court Judge Robert J. Bryan dismissed West's claims. When West appealed, Weyerhaeuser argued that the lawsuit was moot because Stage One of the project was in place. But the Ninth Circuit said the controversy was live. The court noted it could still order additional environmental review and even order "the interchange closed or taken down." Plus, Stage Two construction had yet to begin, noted the court, which then moved to the merits of the case. West argued that the highway administration should have prepared an Environmental Impact Statement or an Environmental Assessment under NEPA, 42 U.S.C. §4332. But the state and federal agencies contended the project qualified for a documented categorical exclusion (DCE) because federal highway regulations list "approvals for changes in access control" as an example an exempt project. The court said, "‘Approvals for changes in access control,' however, is not defined in the regulations, the legislative history, or case law." Judge Betty Fletcher continued, "None of the examples listed in the DCE regulations approaches the magnitude of this project — an entirely new, $18.6 million, four-lane, ‘fully-directional' interchange constructed over a former Superfund site and requiring 500,000 cubic yards of fill material, 30,000 tons of crush surfacing and 32,000 tons of asphalt concrete pavement. To the contrary, the other examples provided in 23 C.F.R. §771.117(d) suggest that the FHWA intends a very different scale of project to escape the more detailed environmental review that would occur in an environmental assessment." "The FHWA regulations forbid the use of a categorical exclusion for projects that will have ‘significant impacts on travel patterns,'" Fletcher wrote. "The new South DuPont interchange was designed with the intent that it have significant impacts on travel patterns." A fuller environmental review might identify mitigation measures that could still be implemented or could alter plans for State Two, which also must have further study, the court ruled. In a dissent Judge Sidney Thomas said the case was moot. "The environmental damage of which Mr. West complains has been accomplished … No order of this Court can alchemize concrete and asphalt into blueprint," he wrote. Thomas further said that the highway administration's interpretation of its own regulations was "not plainly erroneous" and, thus, should be upheld. The Case: Arthur S. West v. Secretary of the Department of Transportation, No. 97-36118, 00 C.D.O.S. 2171, 2000 Daily Journal D.A.R. 2967, filed March 20, 2000. The Lawyers: For himself: Arthur West, Olympia, Washington. For federal agencies: Brian Kipnis, Department of Justice, Washington, D.C. For state agencies: Deborah Cade, assistant attorney general, Olympia. For Weyerhaeuser: George Kresovich, Hillis, Clark, Martin & Peterson, Seattle.

Two events will shape Stanislaus County planning and development issues this year: a proposed ballot initiative to rein in urban sprawl, and a plan to encourage business development in an unincorporated community north of Modesto. Proponents of the farmland-protection initiative have until May 11 to gather signatures to place it on the November ballot after the county Board of Supervisors refused to do so. Sponsored by the group GOAL (Growth: Orderly, Affordable, and Livable), the measure would establish 30-year urban limit lines that coincide with those set in the general plan of each city and the county. How that initiative, if approved, would affect potentially controversial plans for extensive commercial and residential development in Salida, north of the Modesto city limits, is uncertain. The proposed initiative has one feature that might be unique: it gives elected officials the option of amending general plans that block development in one area to add another development area to the general plan. In other words, more development could be accommodated if another area is declared off limits. The urban limit lines could also be changed by a vote of the electorate, according to Bruce Frohman, a Modesto City Councilman and a member of GOAL's board of directors. Frohman is optimistic that the group would get 11,000 valid signatures needed to place the measure on the ballot. GOAL's members contend that too much of the county's valuable farmland is being used for development. The measure is known as both the FOOD Initiative, which stands for Future Options on Development, and more officially as FSI, the Farmland Stabilization Initiative. The measure will definitely be on the ballot in Turlock this November and in Modesto in November 2001. The city councils in Turlock and Modesto, the county's largest cities agreed to put the FSI to a vote. But those measures will not take effect unless the county measure gets on the ballot and passes. Voters in the county's smaller cities could get a chance to vote on it in elections scheduled for November, or in 2001 and 2002. County Supervisor Nick Blom does not expect FSI to qualify for the ballot. Blom, a farmer, and said the FSI would tell him how to use his land. "You're taking my property rights away," he said. He noted that an earlier GOAL-sponsored proposal, Measure F, was soundly defeated by voters about eight years ago. That measure, Frohman explained, would have changed general plans to stop conversion of farmland to urban use. In contrast, FSI respects the boundaries set by general plans that are in effect. "It lost because it was too restrictive," he said. "I thought it was too restrictive." Modesto, which is home to 182,000 of the county's 450,000 residents, could conduct the key the election. Frohman said two things favor the current initiative: county officials' failure during the past three years to develop a specific proposal on future land use, and anger in Modesto over the implementation of Measures P & Q. Frohman said that the FSI initiative was to be on the ballot last year. But GOAL postponed things for a year because county officials asked for more time to develop their own specific proposals through what they call their visioning plan, which was intended to address land use, education, transportation and other issues. Under city council-sponsored Measures P and Q, voters in Modesto were asked in November 1997 approve the extension of sewer lines to properties that had already been annexed into the city but had not been subjected to a public vote, as an earlier ballot measure had specified. Those measures would have provided sewer service to 2,500 acres on the fringes of the city that would support 4,000 homes. Measures P and Q both lost by wide margins, but the City Council continued to approve the extension of sewer lines into the area, claiming that state laws required them to do so because properties had already been annexed into a city (See CP&DR, January 1998). Voters in the same November 1997 election approved Measure M, which was intended to tighten loopholes in Measure A, an advisory vote passed in 1979. Measure A required the city to conduct elections before extending sewer lines to new developments. Measure M was also an advisory vote, so GOAL and its allies were not able to force the council to heed it. Frohman said there has been a lot of new development on the north side of Modesto in the past two years, and many people are angry because they voted against it when they defeated Measures P and Q. "They're not trusting their elected officials," Frohman said. Supporters and opponents disagree on how the FSI could impact another hot issue in the county: a community plan update for Salida, an unincorporated area just north of Modesto. Salida has a current population of 12,000 but is projected to grow because of its proximity to Highway 99. While much of Modesto has been built out, county supervisors see the agricultural areas around Salida as a place to add businesses and jobs. Many Modesto residents now make long commutes to jobs in the Bay Area. Several years ago, Modesto city officials eyed the Salida area for future expansion. But efforts to expand Modesto's sphere of influence were shot down by the Stanislaus County Local Agency Formation Commission, according to Modesto City Council member Kenni Friedman. The Board of Supervisors is scheduled to consider the Salida Community Plan Update this month, when a draft environmental impact report on it is released. The update is supposed to guide development in the area for the next 20 years. The Salida Community Plan update was first presented to the Board of Supervisors a year ago and projected a great deal of residential growth. But supervisors sent planners back to the drawing board, saying they wanted more business development. Of the 5,500 acres that are part of the community plan, about 1,800 acres would be set aside for business parks, according to the new plan, which officials were hesitant to discuss. The new plan would allow Salida to grow to about 21,000 by 2020, down from original estimates of 37,000, according to the Modesto Bee. Modesto supports the revised plan for Salida because it would increase local employment, according to both Blom and Friedman. A tax agreement for the area provides that approximately 75% of the tax revenue will go to the county, and 25% to Modesto for providing water and other services. "We want to partner with the county on this," Friedman said. Frohman said that the Salida Community Plan will not be affected by the Farmland Stabilization Initiative if it passes, because the area has already been designated in the county's general plan for growth. Blom disagreed. "If it passes, it will waste all the time we've spent ," he said. Contacts: Bruce Frohman and Kenni Friedman, Modesto City Council, (209) 571-5169 Nick Blom, Stanislaus County supervisor (209) 525-6560 Ron Freitas, Director of Planning and Community Development, Stanislaus County, (209) 525-6330

Voters in Culver City rejected an initiative that would have blocked a downtown redevelopment project, while voters in Benicia overwhelmingly approved an open space protection measure during April 11 special elections. The split decisions on growth follow March 7 balloting, when three-quarters of slow-growth measures failed. In Culver City, which lies a few miles north of Los Angeles International Airport, Measure M received only 32.8% of the vote. The complex Save Our Schools Initiative would have prohibited certain uses, such as parking garages, theaters and liquor stores, within 400 feet of schools. Measure M was aimed at a downtown redevelopment project called Town Plaza that is planned to include a large theater, retail stores and a parking garage. City officials vigorously fought the initiative, which they said would "kill efforts to bring downtown back to life." Initiative proponents said they wanted to protect schoolchildren from "unrestrained commercial development" and complained about city subsidies for retailers. In Benicia, a Solano County city along the Bay, 88.6% of voters backed a very different Measure M. This one will require voters to approve development or sale of city-owned land designed as open space in Benicia's 1999 general plan. The measure does not apply to private property but does affect dozens of city-owned parcels, including some very small ones, throughout Benicia. Controversy last year over a city proposal for a 50-unit affordable housing development on a grass field in the Southampton subdivision spurred the measure, which the City Council placed on the ballot. Some environmentalists questioned the measure, saying it would discourage infill development.

There is no doubt that the Sacramento metropolitan area is awash in retail shopping development, but whether or not the region is facing an excess of retail stores is subject to debate. The question arises while a 1.1-million-square-foot regional mall prepares to open in Roseville this summer, and regional malls of similar size are proposed in Folsom and Elk Grove. Plus, the City of Sacramento continues to consider large-scale downtown retail development. In three recent studies performed for the City of Sacramento, David Wilcox of Economics Research Associates, warned that the region faces an unhealthy glut of retail shopping development. Wilcox examined a fast-growing four-county area (Sacramento and Yolo counties, south Placer County and western El Dorado County) with about 1.7 million people, and compared it to similar-sized metropolitan regions. "What I found was just this enormous amount of retail space that is being built, or has been built in the last five years," Wilcox said. "Then there was this whole huge amount of place-holder projects there was being proposed. … Sacramento would have a massive amount of retail if all of these speculative proposals would get built." Some analysts contend that retail development is only following the residential and industrial growth that has occurred in the lower foothills east of Sacramento. Indeed, Wilcox found that power centers (collections of big-box stores such as Home Depot and Wal-Mart) have closely followed residential subdivision development in the Placer County cities of Roseville and Rocklin, where the population has more than tripled during the last 20 years to approximately 110,000. Plus, there is a great deal of additional wealth in the area thanks to an increase of high-tech jobs. Roseville Planning Director Patty Dunn said she sees no problem, at least in her rapidly growing town, which is a net importer of jobs. "We've really striven to have a balance of land use. Right now, in terms of commercial zoning, we might have a little bit of an overage. Based on models, about 80% of it will be absorbed by 2020," Dunn said. "But if you look at most city or county general plans, you see a little bit of an overage in commercial because residential typically is absorbed much faster." The cities of Roseville and Rocklin, on the I-80 corridor, and Folsom, along Highway 50, will see 2-million-square-feet of retail space open this year alone, Wilcox said. The largest project is the Galleria at Roseville, a 1.1-million-square-foot regional mall aimed at higher end shoppers. Nordstrom, Macy's, J.C. Penney and Sears will anchor the Galleria. Across the street from the Galleria at Roseville is proposed Creekside Town Center, a 400,000-square-foot power center. The Galleria at Roseville undoubtedly will compete with Sunrise Mall, about six miles west in Citrus Heights. Sunrise has served the region for decades and recently underwent a $10 million facelift. Less than 15 miles south of the Galleria at Roseville and about six miles east of Sunrise Mall lies the site of the proposed Broadstone Mall in Folsom. The city approved the 1.1-million-square-foot regional mall in 1991, but it has yet to be built. However, Broadstone Plaza, a smaller retail and entertainment center, is scheduled to open before year's end in Folsom, whose population has more than quintupled to about 50,000 in the last two decades. While all of this retail development plays out in Sacramento's eastern suburbs, the southern suburb of Elk Grove, which voted last November to become a city, is the site of a proposed 1-million-square-foot regional mall called Lent Ranch Marketplace. Although Lent Ranch could divert Elk Grove shoppers from south Sacramento's retail opportunities along Florin Road, Lent Ranch would have little other competition within close driving distance. In Sacramento itself, city officials have had to consider new retail proposals in North Natomas, a collection of farms along I-80 and I-5 where long-planned development is finally becoming reality. Some North Natomas landowners requested that their property be rezoned from industrial and office designations to commercial. The landowners proposed six of what ERA's Wilcox called "intercept centers" ranging from 250,000 to 680,000 square feet apiece. Landowners said commercial development would do more for city finances than office buildings. But Wilcox said the proposed commercial centers would seriously harm the prospects for neighborhood shopping centers that are planned throughout North Natomas, which is projected to have a build-out population of 60,000. In late March, the Sacramento City Council refused to approve the rezoning and stuck with the North Natomas plan. The Sacramento council also has continued to focus on the long-struggling, pedestrian-only K Street Mall. Westfield Corp. has recently consolidated much of the mall under one ownership for the first time, and in March Westfield hired renowned architect Jon Jerde to create a plan for about seven blocks of the K Street Mall from the Downtown Plaza to the Sacramento Community Convention Center. Both the Plaza, an enclosed shopping mall, and the Convention Center received major upgrades during the 1990s, but the K Street Mall still languishes, especially at night and on weekends, when state office workers are absent. The City Council had been weighing plans of Mills Corp., a Virginia-based developer, for a mixed-use project on an old railroad yard just north of downtown. Wilcox, however, said that the retail aspect of the Mills project would have competed with the K Street Mall effort. The potential conflict was solved when Mills withdrew its plans at about the same time its request for a $75 million city subsidy was reported by the Sacramento Bee. Contacts: David Wilcox, Economics Research Associates, (310) 477-9585. Patty Dunn, Roseville Planning Department, (916) 774-5276.

A garbage company does not have legal standing to file a lawsuit regarding the environmental review of a competing company's landfill plans, the Third District Court of Appeal has ruled. The three-judge panel unanimously voted to dismiss a suit filed by Waste Management of Alameda County. Waste Management argued that Alameda County should have required environmental impact report before allowing Browning-Ferris Industries to accept "designated wastes" because the county required Waste Management to prepare an EIR for a similar project. But the appellate court concluded Waste Management was only pursuing its economic interests, which was not adequate to maintain a lawsuit under the California Environmental Quality Act. The dispute arose from BFI's proposal to accept "designated wastes" within the meaning of State Water Resources Control Board regulations (essentially, all nonhazardous solid wastes) at BFI's Vasco Road Sanitary Landfill in the hills east of Livermore. The county determined the project was exempt from CEQA review because it involved only a minor alteration to an existing use. Both the San Francisco Regional Water Quality Control Board and the state Integrated Waste Management Board gave permission for BFI to accept designated waste. However, when Waste Management had earlier sought permission to accept designated wastes at its Altamont landfill four miles east of BFI's facility, the county had required an EIR. Waste Management filed a lawsuit. Sacramento County Superior Court Judge Cecily Bond ordered an environmental review of BFI's plans and ordered BFI to stop accepting designated wastes. The appellate court overturned Bond's ruling A party can bring a lawsuit if it has a beneficial — i.e. direct — interest in a matter. Waste Management did not such an interest, court said. "An interest, including a financial or commercial interest, which is not within the zone of interests to be protected or regulated by the asserted legal duty can only be an indirect interest from the standpoint of the law. It has been clear throughout this litigation that Waste Management's interest is commercial and competitive," Presiding Judge Arthur Scotland wrote. "CEQA is not a fair competition statutory scheme." Simple logistics also were not adequate to establish Waste Management's beneficial interest, the court ruled. There was insufficient evidence to argue that BFI's acceptance of designated waste would have environmental consequences for Waste Management's landfill, which is on the other side of the mountain range, the court said. Waste Management also argued that it could bring a "citizen's action" that was intended to enforce a public duty. But the court said that a corporation is not a "citizen" and that Waste Management "has shown no demonstrable interest or commitment to the environmental concerns which are the essence of CEQA …" Because it ruled that Waste Management lacked standing to bring the lawsuit, the court did not rule on the merits of the case. The county had argued that the two landfill projects were dissimilar because Waste Management's plans involved expanded acreage and other operating changes. The Case: Waste Management of Alameda County v. County of Alameda, No. C024917, 00 C.D.O.S. 2972, filed April 17, 2000. The Lawyers: For Waste Management: Michael Zischke, Landels, Ripley & Diamond, (415) 512-8700. For Alameda County: Lorenzo Chambliss, Senior Deputy County Counsel, (510) 272-6703 For Integrated Waste Management Board: Matthew Campbell, deputy attorney general, (916) 327-2477. For Browning-Ferris: Scott Gordon, Bruen & Gordon, (925) 295-3131