The Ninth Circuit U.S. Court of Appeals has sided with a miner in a feud between the miner and the U.S. Forest Service. In interpreting the Mining Law of 1872 and the 1955 Multiple Use Act, the court ruled that the Forest Service could not kick a miner off his claim in the Tonto National Forest, and that the Forest Service may not have had justification for increasing a reclamation bond requirement. In an opinion that recounted the history of mining laws in the United States, Circuit Judge Andrew Kleinfeld made clear that the owner of a valid mining claim on public land has great rights. Writing for the unanimous three-judge panel, Kleinfeld cited the U.S. Supreme Court's decision in Wilbur v. United States ex rel. Krushnic, 280 U.S. 306 (1930), which stated, " hen the location of a mining claim is perfected under the law, it has the effect of a grant by the United States of the right of present and exclusive possession. The claim is property in the fullest sense of that term … ." The case involved the Forest Service's attempt to remove Ray and Molly Shumway from the location of two mill site claims — the same as mining claims — in Arizona's Tonto National Forest. The Forest Service had first approved a mining and milling operation plan for the sites in 1979. In 1981, the Forest Service approved a revised plan that allowed a cyanide leaching operation. However, in 1987 the Forest Service ordered the Shumways to move off the site and to remove a horse, trash and equipment, which the Forest Service termed "junk." The Forest Service also raised its requirements for a bond intended to ensure site reclamation from $5,200 to $18,000. In 1991, the Forest Service ordered the Shumways to halt all mining and move out because they had not posted an acceptable bond. The Forest Service also advised the Shumways that a new operating plan would likely come with a requirement for a $150,000 to $200,000 bond. The Shumways did not leave the property, so the federal government sued the Shumways in 1995 to evict them and to require them to remove their belongings and clean up the sites. Arizona District Court Judge Stephen McNamee issued a summary judgement for the government. On appeal, the Shumways argued that their equitable title in the mill site claims entitled them not to be treated as trespassers, that the increase in bond amounts was impermissible and that Judge McNamee failed to consider evidence they presented. The Ninth Circuit panel reversed McNamee. So long as the claims were not shams and the Shumways abided by Forest Service regulations, they were entitled to possess the mill site claims, the court ruled. "The owner of a mining claim owns property, and is not a mere social guest of the Department of the Interior to be shooed out the door when the Department chooses," Kleinfeld wrote. No one disputed that the claim was bone fide and that the Shumways owned it. The court took particular exception to the Forest Service's description of the Shumways' tools and equipment as "junk.." Furthermore, the court said, failure to file an approved mining plan — the Shumways' was rejected for failure to provide the $18,000 surety bond — does not cost the owner his claim. "Like someone who proposes to operate a nursing home in an area zoned for single family residential and light retail, regulations may prohibit their proposed use, but it does not follow that they forfeit their interests in the real estate," Kleinfeld wrote. As for the bond amount, the court ruled that triable issues of fact existed and the lower court should not have issued a summary judgement. The Ninth Circuit said that Judge McNamee erred when he disregarded affidavits from Ray Shumway and his expert witness, both of whom discussed operations at the mill site claims. The Case: U.S. v. Shumway, No. 96-16480, 99 C.D.O.S. 3, filed December 28, 1999. The Lawyers: For U.S.: Robert Bartels, assistant U.S. attorney, Phoenix, (602) 514-7500. For Shumway, Arthur Lloyd, Payson, Arizona, (520) 474-6727.

A commission appointed by Assembly Speaker Antonio Villaraigosa has recommended local governments swap sales tax revenue for a bigger cut of property taxes. The proposal is one of several intended to reduce city and county dependence on sales tax. However, it remains unclear whether lawmakers and Gov. Davis will take meaningful steps toward altering the complex fiscal system this year. It is a two-handed situation. On the one hand, recommendations of the Speaker's Commission on State and Local Government Finance appear to be getting serious consideration, as a new joint standing committee of the Senate and Assembly was created to follow up. On the other hand, Davis's January budget proposal contained scant mention of local government finance. In fact, the governor chided local agencies for failing to spend transportation and housing funds already in their possession, a charge local officials hotly disputed. David Abel, who chairs the Speaker's Commission, said momentum exists for changing a broken system. The 34 members of the commission — established to address "the impacts of topsy-turvy fiscal policy on governance and quality of life" — came from all over the state and represented every political persuasion. Yet the members agreed at the outset on nearly everything and cast unanimous votes during the year-long process, he said. Plus, the Commission on Local Governance for the 21st Century — created by the Legislature to review the Cortese-Knox Act, which guides local agency formation commissions — reached similar conclusions about altering local government funding mechanisms, Abel noted. "The issues are not unclear to those who follow them," he said. One of the primary issues noted by these two groups and by others is that local governments are heavily dependent upon sales tax revenue. This situation causes cities and counties to make land-use decisions based on short-term financial gain — jurisdictions often choose retail uses rather than manufacturing or houses — and pits communities against one another because the town that lures big boxes and car dealers gets more money. Plus, because cities and counties typically get only 10% to 20% of local property tax revenue — while schools get half or more — local decision-makers show little interest in lands that boost property values long-term, such as housing. Recommendations from the Speaker's Commission included the following: o Reduce the local cut of sales tax by half to 0.5%, in exchange for a similar portion of property tax revenue. o Place the existing 0.5% countywide "transactions and use" tax authority in the state constitution to ensure that revenue does not supplant state spending. o Over several years, return $1 billion in property tax revenue shifted from cities and counties to schools in 1992 and 1993. o Clearly define responsibilities of the state and counties when a county is acting as an agent of the state. Sales tax allocation examined Under the Speaker's Commission's proposed swap of sales and property taxes, cities and counties in the first year would receive the same amount of property tax they received the prior year, augmented with the amount of sales tax it lost. In future years, each jurisdiction would get the amount of property tax received the prior year (including the sales tax adjustment), plus a share of property tax growth attributable to increased assessed value within their individual jurisdictions. Thus, if 15% of the increase in a county's assessed valuation occurred in one city, that city would get 15% of the growth in property taxes from the base year. "I think the swap, which is a modest but practical step, is going to get a very fair and open hearing," Abel predicted. "There ought to be balanced decision-making … and not a dependence on sales tax revenue that skews the whole land-use decision-making process." In recent months, the idea of reducing local government dependence on sales received support from the 21st Century panel, State Controller Kathleen Connell, and the California State Association of Counties. The 21st Century panel recommended "that the point-of-sale allocation of the sales tax be revised to mitigate its effect as an incentive for ‘fiscalization of land use' and that the allocation of property taxes should be increased to more completely fund property-related services." A panel convened last year by Connell did not recommend a tax swap. Instead, her State Municipal Advisory Reform Team (SMART) recommended that the growth in sales tax revenue be apportioned according to population. "This will incentivize cash-starved municipalities to invest in community, housing and quality of life programs — instead of erecting huge car malls on cheap land to attract sales tax revenue," Connell said in a prepared statement. The SMART panel also said that the state should return a portion of the 1993 property tax shift, end "unfunded state mandates" and implement performance audits. The counties association recommended that 90% of sales tax revenue growth, after a five-year phase-in, be allocated based on population and to ensure equity among jurisdictions within a county. Like Connell's panel, CSAC recommended keeping the situs-basis for existing sales tax revenue because many local governments have based their budgets on sales tax revenue. The counties association also urged a return of the 1993 property tax shift and constitutional protection of the local 0.5% "transactions and use" tax. Naturally, all the talk about reallocating sales tax makes cities with large retail bases nervous. David Jones, a League of California Cities lobbyist, said it is easy for counties to support reallocating sales tax because counties receive only about one-seventh the amount of sales taxes that cities do. "We are a situs-centric organization, so we have to tread lightly when it comes to swapping sales tax," Jones said. Legislation not yet written A key player in local government finance reform could be Assemblyman Robert Hertzberg (D-Van Nuys), whom Villaraigosa has tabbed as his successor. Hertzberg created the Commission on Local Governance for the 21st Century as part of a 1998 bill intended to ease the San Fernando Valley's pursuit of secession from the City of Los Angeles. When the Commission released its final report on January 20, Hertzberg vowed to put all the recommendations into one bill this year. Paul Hefner, a Hertzberg aide, said the bill language would become clearer as analysts complete an examination of the recommendations. February 25 is the deadline to submit bills. Hefner noted that Hertzberg talks a great deal about the proper roles of different levels of government, regionalism, and the existing structure of government, which the assemblyman believes is failing. Assemblyman Tom Torlakson (D-Martinez) is another likely player. Torlakson has proposed giving cities the option of swapping all their sales tax revenue for a bigger cut of property taxes. He also has discussed letting cities designate "good development" zones that have a jobs-housing balance and good transportation. Cities could get most or all of the property tax resulting from development in these zones. Again, these concepts have not yet appeared in bill form. Last year, the Legislature directed the Legislative Analyst's Office to present alternatives for restructuring the property tax allocation system, partly to "give cities and counties greater fiscal incentives to approve land developments other than retail developments." The legislation, AB 676, set a December 31, 1999 deadline, but the LAO was still working on the report as of late January. The report should be complete shortly, said Marianne O'Malley, an LAO analyst. Besides its immediate recommendations on fiscal reform, the Speaker's Commission also urged the Legislature and governor to begin developing a state policy on regional growth. The commission considered a plan to have local agencies and the state pool resources for regional efforts, but there is no legal structure in place for such pools, said Commission Chairman Abel. Still, the commission planned to discuss incentives for local governments to work together and share sales tax revenues during its final meeting in early February. The pool concept, however, may go nowhere because there is no legal structure in place, said Commission Chairman Abel. Still, the commission planned to discuss incentives for local governments to work together and share sales tax revenues during its final meeting in early February. The Speaker's Commission also urged development of "a set of state, regional and local ‘smart growth' policies to guide the development and conservation of the state." Such policies would require that local general plans be linked to regional plans, encourage efficient use of land through efforts such as mixed-used projects and reuse of brownfields, and infrastructure investment, especially in existing urban areas. Contacts: David Abel, Speaker's Commission on State and Local Government Finance Reform, (213) 629-9019. Paul Hefner, Office of Assemblyman Robert Hertzberg, (916) 319-2040. State Controller's Office: (916) 445-2636. David Jones, League of California Cities, (916) 658-8200. Website: http://speaker.metroforum.org Website: www.clg21.ca.gov

The Salton Sea is sometimes referred to as Southern California's Lake Tahoe, and while efforts to save the northern lake took shape 20 years ago, officials only now are making big decisions about the future environmental health of the southern water body. The Salton Sea (which is also sometimes called a lake) has been in a downward environmental spiral in recent years. Rising salinity, warnings about eating its fish, oxygen depleting algal blooms, and the deaths of thousands of birds and fish have plagued the Salton. But in January, the U.S. Department of Interior issued a Draft Environmental Impact Statement that looked at five alternatives designed to improve the sea's health. The alternatives all involve evaporating salt from the sea to increase the health of its fish population. The five alternatives are really a combination of three different plans for removing salt. They range from such standard ideas as using two evaporating ponds, to building evaporation towers up to 130 feet tall, to using snowblowers that would disburse water. The blowers, similar to those used in snow making, would shoot Salton Sea water into the air and into an evaporation pond. The towers would drop the water in a spray. Either way, salt could be collected from evaporation ponds. A final decision on the alternatives is due by mid-year, but an $8.5 million pilot program to try out all three ideas has already been funded by the federal Environmental Protection Agency and is under way. The sea, located in both Riverside and Imperial counties, is on a salty ancient lake bed, and has grown saltier over the years. The sea does not drain to another water body. The Salton Sea was created by accident in 1905 when construction of an irrigation canal accidentally diverted Colorado River water into a dry lake. The water flow continued for one and a half years. By that time, the water had created the largest lake entirely within the state boundaries. The Salton Sea is 34 miles long and between nine and 10 miles wide. Over time, the sea's salinity has risen as water evaporated in hot desert temperatures, and saline is now at 43 parts per thousand. By comparison, the Pacific Ocean's salt level is 35 parts per thousand. If the level reaches 60 parts per thousand � as could happen during the next 15 to 20 years unless something is done � most of the Salton's 100 million fish will die. Thousands of birds use the lake as a major stopping point on migratory journeys. With most wetlands in Southern California destroyed through urbanization, the Salton Sea serves as an important food source. But disease problems have killed more than 200,000 birds at the Salton Sea since 1992, including endangered California brown pelicans. Thousands of fish have also died during that period. "It's a thorny issue to improve the environmental quality of the Salton Sea," said Perry Plumart, a spokesman for the National Audubon Society. "Nobody knows the answer. It's not clear what's killing the birds." Besides the salt level, high levels of phosphates in the sea from agriculture and from the remains of dead fish also hurt the water quality. Dead fish will be removed from the sea as part of new efforts to improve the water quality. Last year, a U.S. Environmental Protection Agency-commissioned report from the Pacific Institute for Studies in Development, Environment and Security blamed many of the current ecological problems on the intensive use of fertilizers in the Imperial Valley. However, the EIS issued in January downplayed any threat to the sea from other agricultural byproducts, such as pesticides. The Department of Interior proposals are expected to cost between $300 and $600 million, according to Tom Kirk, executive director of the Salton Sea Authority, a joint powers authority that is working with the federal government to restore the water body. Kirk expects the money to come from both federal and state sources. U.S. Senators Barbara Boxer and Dianne Feinstein both have promised to get money for the sea's restoration, and the efforts to improve the sea are also strongly supported by local legislators, including Rep. Mary Bono (R-Palm Springs). According to officials with the Coachella Valley Water District, an earlier plan to help preserve the Salton Sea died in 1974 due to a lack of federal and state funding. A number of other ideas have been proposed to solve the sea's problems. One of the most interesting recent proposals is to build two canals from the Sea of Cortez in Mexico to the Salton Sea. One canal would be used to pump the saltiest water; the other canal would be used to carry ships. But the $3.3 billion proposal by Metcalf & Eddy, a Massachusetts engineering firm, is not expected to go anywhere. Letting the sea evaporate and then die would create other problems, such as exposing remaining pollutants to desert winds, which would carry contaminates into the air. Steps taken to improve the sea's health are expected to increase tourism and development near the lake. Salton Sea State Park already hosts 200,000 visitors a year, but tourism started declining in the mid-1980s when warnings were issued about eating fish in its waters, due to selenium. The sea is still popular with duck hunters, boaters and water skiers. Another challenge facing the sea is that less water from Imperial County is expected to enter into it as the Imperial Irrigation District (IID) begins a controversial water transfer to San Diego County Water Authority. The sea, which on average is about 30 feet deep, could drop 10 to 15 feet when the IID diverts water, according to Kirk of the Salton Sea Authority. This is a similar in some ways to what happened to Owens Lake when Los Angeles removed water there during the early 1900s. But Salton Sea concerns are expected to be addressed in an EIS on the water transfer. Imperial Irrigation District representatives sit on the Salton Sea Authority. IID also faces state mandates to reduce waste flows to the sea. At the state level, last July Governor Davis signed SB 223 by State Senator David Kelley, which gave the Salton Sea Authority the right to form an infrastructure financing district for the reclamation and environmental restoration of the sea. Proposition 12, the state parks bond on the March ballot, is expected to provide up to $87 million for sea restoration. Contacts: Tom Kirk, Salton Sea Authority, (760) 564-4888 Perry Plumart, National Audubon Society, (202) 861-2242

Property owners who never filed a development application have no basis for a takings claim, the Fourth District Court of Appeal has ruled. The court also said a landowner whose one application for a specific plan amendment that was rejected also has no takings argument. The case arose from the City of San Diego's lengthy planning process for the East Elliott community, a former Navy base that the federal government sold during the 1960s. As early as 1981, the city conceded that a 1971 East Elliott community plan was outdated, but the city did not adopt a new one — as part of a Multi-Species Conservation Plan — until 1997. Still, landowners must get a final determination from the government regarding permissible uses before a taking occurs, no matter what a long-range plan says, the court ruled. In 1971, San Diego adopted a community plan and zoning for East Elliott that allowed five residential units per acre on 1,380 developable acres. Ten years later, the city said the plan should be updated, but the city did not have the money to do so. City officials invited property owners to retain their own planning consultant. In 1987, a consultant to the East Elliott Property Owners Association (EEPOA) proposed a plan that would have increased the permitted density of development. City planners and property owners negotiated for five years before the City Council directed staff members to stop processing EEPOA's proposal in January of 1993. Instead, the city began considering siting a landfill in East Elliott, adjacent to an existing county landfill. A few EEPOA landowners then broke away and formed Calprop Corporation. In 1995, Calprop filed an application to amend the East Elliott Plan and an application for a use permit to allow a private landfill. The city dropped its landfill plans and, in 1996, denied Calprop's applications. In October of 1996, Calprop sued the city to force approval of its project and sought damages for inverse condemnation. A few days later, EEPOA and one individual property owner sued the city for failing to adopt an updated plan and for inverse condemnation. While the lawsuits were pending, the city adopted the MSCP and amended the East Elliott plan, which reduced the level of development permitted under the 1971 specific plan. San Diego County Superior Court Judge Judith McConnell consolidated the three lawsuits and issued summary judgement for the city. The property owners appealed only the rulings on inverse condemnation. A unanimous three-judge panel of the Fourth District upheld McConnell's ruling. The court said that the landowners did not have ripe takings claims, they did not qualify for the "futility exception," and they were not entitled to compensation based on the city's slow planning process. In considering ripeness, the court extensively cited the U.S. Supreme Court's decision in MacDonald, Sommer & Frates v. Yolo County, (1986) 427 U.S. 340, in which the court ruled, "Whether the inquiry asks if a regulation has ‘gone to far,' or whether it seeks to determine if proffered compensation is ‘just,' no answer is possible until a court knows what use, if any, may be made of the affected property. Our cases uniformly reflect an insistence on knowing the nature and extent of permitted development before adjudicating the constitutionality of the regulations that purport to limit it." The EEPOA and its members worked only toward a specific plan amendment, the appellate court noted. "Because EEPOA and its members have never sought approval for any specific project, let alone one which met the existing plan and zoning requirements for the area, their claim that their property has been taken is not ripe," Justice Patricia Benke wrote. And, she continued, the city's rejection of one application for a landfill "does not by any stretch of the imagination establish that the city will prevent Calprop from developing its land in any economically viable manner." As for the futility exception to the ripeness doctrine, the court repeated what other courts have said, namely "that the exception is narrow and that it requires some development proposal by the landowner …." None of the landowners has submitted a proposal since the city adopted the MSCP and amended the East Elliott plan. Moreover, the court said, the MSCP specifically contemplates whether the city should allow development or compensate a landowner to prevent construction — a proposition that these landowners never tested. The slow planning process was not a basis for a takings claim because the city never weighed a specific development proposal, and because the city made a good faith effort at planning for the area and the slow pace was part of the normal government process, the court ruled. " t is now up to the landowners to present the city with specific plans for their respective parcels and in that manner provide the city with clear choice of permitting development or providing them some form of meaningful compensation," Benke wrote. The Cases: Calprop Corporation v. City of San Diego, No. D031965, Ann N. Petersen v. City of San Diego, No. D032263, East Elliott Property Owners Association v. City of San Diego, No. D032642, 00 C.D.O.S. 369, filed January 12, 2000. The Lawyers: For Calprop: G. Steven Andersen, Andersen & Keleher, (310) 546-6662. For Petersen and EEPOA: Richard C. Wildman Jr., (619) 338-6500. For San Diego: Anthony Shanley, deputy city attorney, (619) 533-5814.

Stanford University has proposed construction of about 3,000 housing units and 2 million square feet of academic and cultural facilities, offices and athletic structures. At the same time, Santa Clara County is exerting greater control over Stanford land use then ever before. Stanford — which owns 8,180 acres, two-thirds of which is open space — has submitted a draft Community Plan to the county. The document is more detailed than previous plans, something local government leaders and community activists demanded. "It really gets down to who gets to decide what happens there," said Sarah Jones, project manager for the Santa Clara County Planning Office. "We are definitely trying to take a more active role. It's not sufficient anymore to say you can build so many square feet in exchange for such and such." Besides submitting the Community Plan, which the county is treating as a general plan amendment, Stanford has applied for a general use permit that would allow actual construction after review of individual projects. The general use permit will probably expire in 10 years, but the Community Plan should have a longer life, Jones explained. The draft plan calls for nearly two-thirds of new housing to be in the form of apartments, group housing and dormitories for graduate students. Another 350 apartments would be available to hospital residents and postgraduate fellows. Up to 687 single-family houses, duplexes and apartments would be designated for faculty and staff members. Although an environmental impact report is due in June, concerns have arisen already regarding open space protection, traffic and land for a new middle school. Members of the Stanford community and surrounding residents treasure the university's eucalyptus groves, grasslands, lakes and rolling hills. Stanford contends that its plan would not decrease the amount of open space, and, at the county's urging, the university has proposed an academic growth boundary similar to an urban growth boundary. "Development on Stanford land in Santa Clara County will be concentrated in the core campus," the plan states. But Stanford has refused to restrict potential, future use of the open space because the university's founders provided the entire site for higher education. "We plan to keep it open space for the next 10 years," said Andy Coe, Stanford's director of community relations. "To plan beyond that time would be irresponsible." Joe Huber, a former Palo Alto city councilman who serves on a county advisory committee on the Stanford Community Plan, said he is tired of this argument. A good chunk of open space should be preserved, and, if Stanford is unwilling, the county should zone tracts as open space, Huber said. Huber also doubts Stanford's contention that the proposed development would add few vehicles to the area's congested boulevards. Menlo Park City Councilman Paul Collacchi, who also sits on the advisory board, said Stanford should construct a better internal road system. Collacchi figures Stanford's university, research park, medical center, shopping center and other facilities comprise 30 million square feet of development, 37,500 workers and 15,000 students. Yet Stanford relies primarily on off-site roads. Coe said the Community Plan calls for boosting an already aggressive transportation demand management program, which includes a free shuttle to mass transit stations, payments to people who do not drive, and parking fees. Plus, additional on-campus housing should eliminate some existing vehicle trips, he noted. As for a new middle school, Stanford is negotiating with Palo Alto Unified School District. The district already has crowded classrooms, and Stanford's new housing could bring 200 to 500 additional students. The district has asked for a site in the core campus, but Stanford thus far has offered two locations away from the main campus and outside the academic growth boundary. No one strongly disputes Stanford's housing intentions. The market in the northern Silicon Valley is so expensive and tight — the median single family home prices tops $400,000 — that Stanford sometimes has trouble recruiting faculty, Coe said. The larger issue of government police power regarding Stanford might be foremost right now. "We've been trying for years to get some sort of growth plan out of Stanford that protects open space and has limits," Huber said. "Up until now, Stanford has had sort of a free ride with the county. But now the heat's on." He called the draft Community Plan a good starting point and expressed optimism about the current planning process. Even Collacchi, who city has feuded with Stanford for decades, commended the county process. "I would like to see more oversight and treatment of Stanford as a private institution, just as any other institution. It has received extra-legal treatment," he said. In fact, Stanford's land in Santa Clara County lies in a general zoning district, which allows almost any use as long as Stanford gets a use permit. That generous zoning might change, Jones said. Complicating the planning is the fact that Stanford's holdings extend over portions of two counties (Santa Clara and San Mateo) and four incorporated cities (Palo Alto, Menlo Park, Portola Valley and Woodside). In December, Stanford development in Palo Alto advanced when the Sixth District Court of Appeal ruled against Menlo Park's lawsuit regarding several Stanford projects — about 1,000 apartments and senior homes, shopping center expansion, and widening and extending Sand Hill Road, a busy thoroughfare. In an unpublished opinion, the court rejected Menlo Park's argument that the EIR must account for a great deal of future Stanford development. An EIR on another project in Palo Alto, expansion of Stanford Medical Center, is due shortly. Also, the Hewlett Foundation has expressed interest in building an office in the San Mateo County portion of Stanford. Still, Stanford officials recognize "times are different," and they want to ensure the public has plenty of input, Coe said. "There is much more attention being paid to housing, traffic and open space." Contacts: Sarah Jones, Santa Clara County, (408) 299-2454, ext. 226. Andy Coe, Stanford University, (650) 725-3323. Joe Huber, Community Resources Group, (408) 295-7034. Paul Collacchi, City of Menlo Park, (650) 321-9751.

Delays by the City of Los Angeles in issuing a permit to demolish a burned-out hotel amounted to a temporary taking, the Second District Court of Appeal has ruled. The unanimous three-judge appellate panel upheld a trial court's ruling that awarded the landowner $1.2 million, plus interest, for the inverse condemnation. The court upheld the trial court's monetary award after concluding that the city's delay in issuing the demolition permit was not part of the normal development review process, and that the delay temporarily denied the hotel owner of all use of his property. Lawyers on either side of the case could point to no other instances where a landowner has received payment for a taking under state law. Recent takings cases won by landowners, including City of Monterey v. Del Monte Dunes Ltd., 119 S.Ct.1624 (1999), involved federal law. (See CP&DR Legal Digest June and July 1999.) The ruling is only the latest in a 10-year legal battle between Syed Mouzzam Ali, who owned the Ferraro hotel, and Los Angeles. Ali has won almost every round, including a 1995, unpublished appellate court case, Ali v. City of Los Angeles, B077712, in which the court ruled that the permit delay violated the Ellis Act. The Ellis Act (Government Code §7060 (a)) permits the owner of rental housing to go out of business (that is, withhold units from the market) regardless of local housing ordinances. The appellate court's decision provided an outline for aggrieved landowners, said Rosario Perry, Ali's attorney. "I think this case is important because it explains how people are going to get temporary takings in California. We've heard in a lot of other cases about how people cannot prove a temporary takings," Perry said. The city has asked the Second District to grant a rehearing and will file a petition for review by the state Supreme Court if necessary, said Michael Klekner, deputy city attorney. "Our problem with the court of appeal opinion is that it ignores the findings of the trial court that we acted in good faith," Klekner said. In November of 1988, a fire "substantially destroyed" the Ferraro hotel. Two months later, Ali applied for a permit to demolish the burned-out structure. The city refused to approve Ali's application because it contended the Ferraro was a single-room occupancy (SRO) hotel, and the city prohibited demolition of such affordable housing units unless the building could not be repaired or the owner agreed to replace the units. After some legal and administrative proceedings, the city concluded the Ferraro was not an SRO hotel, so the city issued a demolition permit in August of 1990, 19 months after Ali filed his application. In the interim, the city determined that Ali was not providing adequate security at the abandoned hotel — there had been a series of small fires starting in July of 1989 — so the city hired 24-hour security and assessed the cost to Ali. Ali sued the city, claiming that the delay was unlawful and that the security measures would have been unnecessary had the city acted properly. The appellate court in 1995 ruled in Ali's favor, remanded certain issues for trial and allowed Ali to raise new complaints. Two trials followed. In one, Los Angeles Court Superior Court Judge Gregory O'Brien ruled that the delay in issuing the demolition permit was illegal and was solely the fault of the city, so he refunded to Ali $399,000, plus interest, in assessments for security. The city did not appeal the portion of the ruling that set aside and refunded the assessments. In a second trial, Los Angeles County Superior Court Judge Lawrence Crispo ruled that the city's actions amounted to a regulatory taking and a physical taking of Ali's property. Judge Crispo awarded Ali $1.2 million, plus interest, for inverse condemnation. The city did appeal this judgement. At the appellate level, the city argued that the California Supreme Court's decision in Landgate, Inc. v California Coastal Com., (1998) 17 Cal4th 1006, was the controlling precedent. In Landgate, the court ruled the Coastal Commission's erroneous attempt to assert jurisdiction over a proposed parcel split — which delayed development — was not a temporary taking. The state's high court ruled that the delay was the result of the normal development approval process and that the Coastal Commission's actions were objectively reasonable. (See CP&DR Legal Digest, June 1998.) But Ali argued that Landgate was inapplicable and, instead, pointed to the important takings case of First Lutheran Church v. Los Angeles County, (1987) 482 U.S. 304 (known as First English). In that case, the U.S. Supreme Court ruled that a regulation that deprives a landowner of all economically viable use of his land may constitute a regulatory taking, which requires compensation under federal law. The Second District, Division Four, panel sided with Ali, ruling that the facts were distinguishable from Landgate. The court said the city's argument that there was no taking because Ali eventually sold his property to the original purchaser was "a non sequitur which fails to address the temporary deprivation of all use of the property." The real issue, the court said, was whether the denial of the demolition permit for 19 months was a "‘normal delay' in the ‘development process' as explained in Landgate." The court said no. In his opinion, Presiding Justice Charles Vogel noted that the Landgate court held that government action that was arbitrary was different from the Coastal Commission's action, and the delay from such arbitrary action would not be "normal." Vogel wrote, "We conclude the City's attempt to enforce its SRO ordinance in violation of the Ellis Act involves the ‘different question' suggested by Landgate, where the position taken by the City was ‘so unreasonable from a legal standpoint' as to be arbitrary, not in furtherance of any legitimate governmental objective, and for no other purpose than to delay any development other than for an SRO hotel. Therefore, the delay in demolition of the hotel was a temporary regulatory taking requiring compensation." The court rejected the city's argument that its erroneous enforcement of the SRO ordinance was an attempt to preserve the availability of low-income housing. The court said the city's action was "arbitrary and unreasonable in light of the Ellis Act." Furthermore, First English requires that Ali receive compensation because the city's regulatory decisions deprived him of all use of his property, the court said. The court rejected the city's argument that Ali forced the delay because he did not seek administrative review of the decision to list the Ferraro as an SRO hotel. Whether or not it was an SRO hotel, Ali had the right to demolish it under the Ellis Act, the court said. Additionally, the validity of the SRO hotel ordinance vis a vis the Ellis Act "was not an issue for the Building and Safety Department acting administratively," the court ruled. Deputy City Attorney Klekner, in an interview, said the court ignored the city's procedure. "Anyone who is familiar with the permit process knows that things are put down on a checklist that are incorrect, and there are ways to challenge the incorrect items checked," he said. Ali failed to do this, even though the city's administrative process was available, he said. But Perry, Ali's attorney, said it was Los Angeles City Council politics that prevented the city from issuing what should have been a routine demolition permit for a building that was 90% destroyed. "Cities are going to have to learn that they can't vote by popularity on these projects. They have to make an objective decision based on some facts," Perry said. Klekner warned that the case sets a bad precedent for local government. "If this opinion holds up, it would turn every permit into a ministerial act," he said. But Perry disagreed because, he said, the facts of the case are peculiar. The Case: Syed Mouzzam Ali v. City of Los Angeles, No. B114226, 99 C.D.O.S. 15, 1999 Daily Journal D.A.R. 12941, filed December 28, 1999. The Lawyers: For Ali: Rosario Perry, (310) 394-9831. For Los Angeles: Michael Klekner, deputy city attorney, (213) 485-5420.

An appellate court has ruled that an environmental impact report for a proposed San Diego County rock quarry was closer to acceptable than a trial judge had ruled, but the EIR still lacked a proper analysis of air quality impacts. The Fourth District Court of Appeal overturned San Diego Superior Court Judge Judith McConnell's ruling that the rock quarry EIR improperly deferred study of highway widening, and that the EIR failed to account for prior illegal mining on the property. Still, the unanimous three-judge appellate panel sided with Riverwatch, a collection of residents near the proposed quarry and environmentalists, on the air quality issue. The court also rejected the mining company's claim that its project had been "deemed approved" years ago and could no longer be challenged in court. Palomar Aggregates filed its first application for a rock quarry near State Route 76 and Interstate 15 in northern San Diego County in March of 1987. After a draft EIR was released in mid-1988, Palomar announced it would not pursue the project described in the study because of concerns over the project's size. Palomar revised the project and prepared a second EIR. But the county Planning Commission denied the permit application in January of 1993 because some environmental impacts could not be mitigated. The Board of Supervisors rejected Palomar's appeal. The company again revised its proposal, and a third draft EIR was released in April of 1996. The EIR's discussion of plans for widening SR 76 in the floodplain of the San Luis Rey River drew criticism from residents, Caltrans, the U.S. Fish & Wildlife Service and local water districts. In response to this criticism, the county required Palomar to widen SR 76 before the quarry opened, and said that the application to Caltrans to encroach onto the floodplain would be subject to environmental study. The Board of Supervisors approved the quarry in March of 1997. Riverwatch filed a lawsuit against the county challenging the EIR and alleging various land-use and zoning deficiencies. Judge McConnell ruled for Riverwatch. She found that the EIR improperly segmented the project by deferring a full study of the highway widening until after the county approved the quarry. She also ruled that the EIR should have set an environmental baseline that included site conditions prior to illegal mining activity. And she said the EIR failed to consider blowing dust from the quarry and haul road. McConnell never reached Riverwatch's land-use and zoning claims. On appeal, Palomar argued that the EIR contained adequate information to evaluate impacts of highway construction. The appellate court agreed. In her opinion, Justice Patricia Benke quoted extensively from the EIR's discussion of the highway project, the associated mitigations, and an analysis of an alternative route. " n its face, the final EIR determined the widening will have a significant impact, requires mitigation which no one disputes will render the impact of the widening insignificant and considers the only feasible alternative route for the widening suggested anywhere in the record," Benke wrote. "Contrary to Riverwatch's contention," Benke continued, "the fact that the final EIR deferred until a later point more detailed analysis of the realignment of SR 76 did not violate CEQA." Benke cited extensively No Oil, Inc. v. City of Los Angeles , (1987) 196 Cal.App.3d 223. In that case, Occidental Petroleum sought permission to drill exploratory oil wells. The city approved the test wells, but project opponents sued because the EIR did not fully analyze the location and impacts of oil transport pipelines that eventually would be required if the exploration were successful. The No Oil court said such an analysis "would be mere speculation" and could be deferred until Occidental proposed building a pipeline. " o Oil makes it clear that CEQA does not require project proponents to act imprudently or to bear unnecessary investigative and assessment burdens" Benke wrote. Although additional data and modeling of the highway widening — requested by Riverwatch and government agencies — would be useful, it would not change the EIR's conclusions, she wrote. "Importantly, no part of the project will go forward until the realignment has been approved by Caltrans and the road has been constructed. Thus, should new information show that any unmitigable impact of the realignment outweighs the benefits of the project, Caltrans can deny the encroachment permit Palomar must obtain and thereby prevent operation of the quarry. The county was certainly entitled to rely on this additional safeguard in deciding to defer a detailed analysis of the highway realignment." As for the EIR's description of baseline conditions, Riverwatch and the Fish & Wildlife Service argued that the EIR did not assess the value of the floodplain as wildlife habitat had the site not served as an illegal sand mine for Palomar's owners and the previous landowners. The Fish & Wildlife Service recommended the county take no action on the quarry application until a Notice of Violation of the Clean Water Act was resolved. Judge McConnell found that the EIR should have developed an environmental baseline that accounted for the prior illegal activity on and near the project site. However, the appellate court said an EIR need not deal with prior unauthorized activity. "We believe that in general preparation of the EIR is not the appropriate forum for determining the nature and consequences of a prior conduct of a project applicant. … Because the prior illegality was subject to enforcement actions and the enforcing agency participated in the CEQA process, CEQA did not require any further accounting for prior activity at or within the vicinity of the project," the court ruled. Potential air pollution was another matter, and the appellate panel upheld McConnell's ruling there. The EIR concluded that the air quality impacts were insignificant because the quarry's processing emission of 95 pounds of particulate matter per day was below the 100-pound threshold of the San Diego Air Pollution Control District. But, the court noted, the study also found that drilling, handling and wind erosion of stockpiles would generate another 82.7 pounds per day of particulate matter (called PM10), and hauling of aggregate would create 111.1 additional pounds per day of PM10. "While the process emissions met the APCD process emission standard of 100 pounds of PM10, that fact did not permit the drafters of the EIR to presume that the other almost 200 pounds of PM10 was insignificant or that together the process emissions and the fugitive and road haul emissions were insignificant," Benke wrote. The court also rejected Palomar's contention that its project had been deemed approved more than 10 years ago. Palomar argued that the city's failure to act on the original 1987 application means the project was "deemed approved" under the Permit Streamlining Act, which sets deadlines for local government to rule on land-use applications, and the time to challenge the approval had long since ended. But the court ruled that the deadline for the county to act did not apply because Palomar itself insisted on halting the original EIR process. Furthermore, the court ruled, the public has 180 days to "bring a CEQA challenge to a project which has not been the subject of a ‘formal decision' by a public agency." Thus, even if the project were "deemed approved," a lawsuit could still be filed because Palomar never started work on the proposed quarry. The Case: Riverwatch v. County of San Diego , No. D030732, 99 C.D.O.S. 9933, 1999 Daily Journal D.A.R. 12743, filed December 22, 1999. The Lawyers: For Riverwatch: Carlyle Hall Jr., Hall & Associates, (310), 441-8300. For the county: R. Mark Beesley, county counsel, (619) 531-6456. For Palomar: Tina Thomas, Remy, Thomas & Moose, (916) 443-2745.

In a currently popular coffee-table book titled The Not So Big House, Minneapolis-based architect Sarah Susanka argues for an age-old idea that seems quaint in our hyper economic boom times: quality is better than quantity. When it comes to addressing the current planning dilemma called monster houses � the phenomenon of tearing down older houses and rebuilding with Godzilla proportions in Bambi neighborhoods � Susanka may be to the 2000s what Andres Duany was to the 1990s: an architect that has design antidotes for infill urban design horrors. Susanka's thesis is so fundamentally logical that it takes on the aura of innovation. She writes that well-rendered small spaces can create not only more useable houses, but ones that are better for the soul. Susanka's admonition might also be better for the neighborhood, if the tumult at building permit counters in affluent municipalities is any indication. Community outrage over monster houses has spilled into many of California's City Council chambers � especially in Silicon Valley � and is resulting in urgency ordinances and a range of other code revisions. Of course, the American cultural obsession with size is not limited to houses. The view across most suburban shopping center parking lots is of monster SUVs, monster fast food drink cups, and probably a monster big box or two. But the monster phenomenon is particularly problematic when it comes home to the neighborhood � especially in expensive areas like Silicon Valley. The older, bucolic neighborhoods near the high-tech job hubs in Santa Clara and San Mateo counties are desirable places to by homes, but the houses are just too small for today's tastes. So remodels abound. Now, these quiet, older neighborhoods are fighting back. Last November, the City of San Mateo extended a ban on demolishing single-family homes. Palo Alto approached the problem with politically-correct aplomb, disguising its restrictions as an historic preservation ordinance. And Cupertino approved extensive review regulations for second-story additions. The trickiness of this planning issue is the underlying theme of propriety and neighborliness, which is difficult for most communities to regulate. Many older or longtime residents simply believe it is impolite to construct additions that are taller than the neighborhood norm, or that differ with the standard architecture. On the other hand, some smart growth proponents applaud the reinvestment in existing neighborhoods, compared with building new monster houses on monster lots at the exurban fringes. And by the way, didn't we all � including "Edward Scissorhands" creator Tim Burton � loathe the drab sameness of suburbia, especially the post World War II ranch-style subdivisions? And what of property-rights advocates who deplore new attempts to regulate what homeowners can do with their properties. Add to these issues the ever controversial and sometimes elitist notion of design review � so-called expert panels ruling on roof pitch and siding material choices for the good of the community. Suffice it to say that the monster house trend places myriad philosophical issues into play. It's not that residential building has gone unregulated until now. Standard R-1 zoning in most communities requires 25-foot front and rear yard setbacks, and five-foot side yards. Many communities also have site coverage and height restrictions. But for longtime residents in neighborhoods like San Jose's Willow Glen, such building envelope rules have not stopped a steady stream of special-use permit notices from showing up in everyone's mail boxes. Bulldozers and contractors have been a staple in Willow Glen for the last several years, and that has fired up San Jose's civic debate. San Jose attempt at resolving the monster house controversy has been both measured and comprehensive. The City has passed a tiered design review ordinance, linking the assessment of remodel additions to performance standards depending on a particular lot size. In that way, the scale of a remodel or addition is dependent on relevant site criteria, including the floor-to-area ratio, setbacks, and terrain. Building requests that would have a greater impact on neighborhood scale will require more laborious, extensive, and costly public hearing review. Whether neighborhoods such as Willow Glen will be satisfied with the regulatory approach remains to be seen. Perhaps the City should also require that would-be remodelers read Susanka's book. "We all want to go home," she writes, "but we don't know how." Perhaps with some reflection by the homeowner who thinks he can't possibly live in less than 4,000 square feet, unneighborly consequences can be reigned in. Otherwise, the results can apparently be monstrous. Stephen Svete, AICP, is a principal in the Ventura-based consulting firm of Rincon Consultants, Inc.

A proposed public bailout of the owner of Highway 91 toll lanes in Orange County has died amid allegations of financial improprieties. The experience with the 91 Express Lanes, which even privatization supporters call a "fiasco," appears to put a damper on what little interest remains in constructing private highways. "This is not something that anyone should expect to become the dominant mode of highway building," said Marlon Boarnet, a University of California, Irvine, planning professor who has studied the issue extensively. A joint venture called California Private Transportation Corp. (CPTC) constructed the 10-mile tollway in the right-of-way for the Riverside (91) Freeway. The lanes opened in December of 1995, and more than two years passed before CPTC turned a profit. But usage reportedly dropped by more than one-third to roughly 18,000 trips per day after the Eastern Toll Road opened in late 1998. The Eastern Toll Road, run by the public Foothill/Eastern Transportation Corridor Agency, handles much of the same Riverside County-Orange County commute traffic that the 91 Express Lanes accommodate. For a variety of reasons, CPTC announced it would sell the 91 Express Lanes to a new nonprofit organization called NewTrac, which CPTC helped establish with a $1 million loan. The proposal called for the state to sell $274 million worth of tax-exempt bonds on behalf of NewTrac. CPTC would receive $225 million for the 91 Express Lanes, which reportedly cost about $135 million to construct, and the remaining bond proceeds would pay finance costs and create a reserve. Tolls, now topping out at $3.75, would retire the debt. As the December 9, 1999, date for selling bonds neared, several prominent officials — including state Treasurer Phil Angelides, Orange County Treasurer John Moorlach and Riverside County Supervisor Bob Buster — publicly questioned the deal. When the proposal reached the California Infrastructure and Development Bank, Angelides abstained, but the other two members of the ban, Trade and Commerce Secretary Lon Hatamiya and Director of Finance Tim Gage, voted to approve the bond sale. The day before the scheduled bond sale, however, Angelides, acting as the "agent of sale," halted the issue indefinitely. He could do this because legal issues were raised regarding the sale, said Cathy Calfo, an Angelides aide. In this case, the state Attorney General's office opened an investigation, she noted. Also, the Riverside County Board of Supervisors voted unanimously to pursue legal action to halt the sale. Those who raised questions said no independent appraisal of the 91 Express Lanes was ever made. Some people also wondered about the close ties between NewTrac and the seller, a concern that the attorney general's office and the Internal Revenue Service have decided to investigate. Some people also questioned the role of Gary Hausdorfer, a former chairman of the Foothill/Eastern Transportation Corridor Agency who heads NewTrac. Hausdorfer and CPTC have denied wrongdoing and said the bond sale was attacked for political reasons. The issue is certainly headed for the political arena, as a joint hearing of the state Legislature regarding the proposed sale and the future of the 91 Express Lanes was scheduled for February 1. The courts also will get involved, as the Riverside County Transportation Commission sued Caltrans and CPTC in late December to force Caltrans to take over the toll lanes. The situation appears to have reinvigorated discussion of private highways. State legislation in 1989 (AB 680) authorized four private tollways — the 91 Express Lanes, State Route 125 in San Diego County, extension of the 57 Freeway in southern Orange County, and a highway linking the East Bay with Sacramento. Only the 91 Express Lanes were built. The San Diego County project is nearing final approval after years of environmental study and legal wrangling. The other two proposals appear dead. Boarnet views the 91 Express Lanes as a successful experiment, partly because it brought forth questions that must be answered before future private roads are built. The question of competition from the public sector might be the toughest to answer. The 35-year agreement Caltrans has with CPTC prevents Caltrans from making safety or capacity improvements to the free lanes of Highway 91 until congestion substantially worsens. At the time the "no compete" clause was approved, no one appreciated how long 35 years is and how much traffic conditions could change, Boarnet said. Hurting the CPTC is the Transportation Corridor Agency's access to tax-exempt bonds, which reduced costs. "We need to take a closer look to see if the public good would be great enough to have these private franchises float tax-exempt bonds," Boarnet said. Robert Poole, director of the transportation program at Reason Public Policy Institute and a proponent of the original AB 680, said projected population growth and stagnant gas tax revenues mean the state needs alternatives for providing highway capacity. The California Transportation Commission estimates the state has $118 billion in unfunded highway needs through 2008. "Toll-funded projects need to be a big part of the equation in the next 20 years in this state," Poole said. "We ought not let the hiccup that was represented by this little fiasco get in the way of the role that public-private partnerships can play." Like Boarnet, Poole said the 91 Express Lanes experience presented valuable lessons. The original contract between CPTC and the state did not contemplate a change in ownership, Poole said. The 91 Express Lanes situation and the slow pace of approving the San Diego County toll road make clear the need for more flexibility in public-private partnerships, he said. In some other states, for example, the state transportation department carries a project though the planning and environmental review stages, then turns it over to a private developer for construction and operation, he said. A hybrid called "high occupancy toll" (HOT) lanes received a boost from a January study of high occupancy vehicle (HOV) lanes by the Legislative Analyst's Office. These HOT lanes are free for carpools, while single-occupant vehicles pay a toll. Intestate 15 has HOT lanes that carry commuters into and out of San Diego. A computerized system, which reads transponders on vehicles, charges tolls ranging from 50 cents to $4 based on highway congestion. Tolls can change every six minutes. The San Diego Association of Governments calls the I-15 HOT lanes a success, and the Legislature has extended the pilot program's sunset date to 2001. Still, Californians' acceptance of toll roads appears limited. The San Joaquin Hills Toll Road (Highway 73) in western Orange County has not come close to traffic and income projections since opening four years ago, forcing the Transportation Corridor Agency to raise tolls. Boarnet said California motorists will accept toll roads only if the new lanes provide obvious relief from congestion on the network of free highways. Contacts: Marlon Boarnet, UC Irvine, (949) 824-7695. Robert Poole, Reason Public Policy Institute, (310) 391-2245. State Treasurer's office, (916) 653-2995. Website: www.lao.ca.gov

Faced with the possibility of adding another 1.5 million people during the next 20 years, Riverside County has embarked on an ambitious effort to plan for that growth. The Riverside County Integrated Plan seeks to combine land use, transportation, and habitat planning into one unified blueprint for growth. County officials emphasize that the planning process does not seek to restrict growth. Rather, the goal of the process is to channel and accommodate new growth while meeting federal standards for protecting wildlife habitat. "We think we're on the right track," said County Supervisor James Venable, whose district includes Hemet and other areas in the path of growth. "If we don't pull this off, Riverside County will be chaos." So far, the project is on schedule and all stakeholders — from builders to environmentalists — remain engaged in the process. But the project is reaching a critical point. "We will begin facing critical decisions in the next 90 to 120 days," said Mel Placilla, project manager for Svedrup Inc., an Orange County engineering firm that is coordinating the massive team of project consultants. County officials have set aside more than $20 million for the planning process, which they expect to take three years – a "fast-track" schedule for a project of this size. The end result will be three new plans: o The long-awaited Multi-Species Habitat Plan, or MSHP, which is expected to designate a preserve of more than a half-million acres in total and identify ways to acquire and pay for between 40,000 and 120,000 acres of new preserve land. o A plan for building two new transportation corridors — one east-west and one north-south — through what officials are calling the Community and Environmental Transportation Acceptability Process, or CETAP. o An updated county General Plan, which will create 19 specific plans in unincorporated territory capable of accommodating massive jobs and housing growth over the next 20 years. The habitat plan and the general plan revision will ultimately be approved by the county Board of Supervisors. The transportation plan must eventually win the approval of the Riverside County Transportation Commission, whose members include the county and its cities. Each plan has an advisory committee composed of 30 to 35 members, including stakeholder groups and other government agencies. Seven consulting firms are involved in the process, including Transcore (transportation), The Planning Center (land use), Dudek & Associates (habitat planning) and LSA (environmental review). The concept of integrating land use, transportation, and environmental planning in a local government planning process at such a large scale is unusual. But the Riverside County program has many parallels to regional and state planning processes undertaken elsewhere in the country, according to Marya Morris, a researcher at the American Planning Association in Chicago. An effort such as the New Jersey State Plan, for example, is probably comparable in size, she said. "It's big but it's not huge for that population," Morris said of the Riverside effort. "Conceptually, it doesn't sound that unique." The Riverside plan is almost certainly the most expensive local planning process in California history. The cost of the Riverside plan is probably comparable to some single-issue regional planning processes, such as the Natural Communities Conservation Planning effort in Southern California. However, the NCCP is creating 11 sub-regional plans dealing with only one issue, habitat preservation. If the Riverside plans are approved and implemented, they could represent a revolution in the way the county grows. The county's population has increased from approximately 500,000 people in 1970 to 1.4 million today. State demographers predict that it will grow to 2.7 million by 2020, meaning it would have about the same population that Orange County has today. In the past, most growth has occurred in unincorporated areas, with new communities becoming cities later on. The county has operated under a general plan that is "policy driven" — meaning it does not have a map outlining physical development — and the plan has frequently been amended. While all stakeholders are actively participating in the Integrated Plan, they do not appear to share a common vision — at least not yet. Dan Silver of the Endangered Habitats League is pushing for concentrated development in urban "nodes" that can support transit and other alternatives to traditional suburban sprawl. By contrast, Barry Burnell of T&B Planning in Orange County, who works for many Riverside County landowners, is unsure that urban-style transit is viable in the next 20 years under any scenario. Both, however, are enthusiastic about the process. "There's true political leadership in Riverside County," said Silver. Added Burnell: "They're approaching this intelligently. You don't see efforts like this every day." The multi-species habitat preserve is likely to form the broad outlines of the county's growth pattern. Riverside County has been under pressure from the U.S. Fish & Wildlife Service to prepare an MSHP for several years. The county has completed a conservation plan to preserve one species, the Stephens' kangaroo rat, but the county has a rich biodiversity and many other species are likely to be listed in the future. The consulting team has identified close to 400,000 acres of publicly owned property that could be included in the preserve. An additional 40,000 to 120,000 acres will likely have to be acquired, either with state and federal funds or with money obtained from a mitigation fee system similar to the one now in place for the kangaroo rat. So far, the consulting team has written plans and established criteria but has not "drawn lines on a map" to lay out the preserve. On transportation, the consulting team has identified four possible transportation corridors, including: 1. A new east-west connection between Riverside and Orange counties, paralleling the already overburdened Highway 91 corridor. 2. A new east-west connection (actually running northeast-southwest) from Banning and Beaumont southwest to Lake Elsinore. 3. A new north-south corridor going north from San Bernardino to Moreno Valley. 4. A new north-south corridor going south from Hemet to Temecula, linking two fast-growing areas that also have a great deal of open land. Discussion about the transportation corridor has revolved around the question of transit — whether it is viable in Riverside County, and whether and how the corridors should plan for potential transit lines. Thus, the transportation discussion overlaps with the land-use debate happening in the context of the revised General Plan. With the consultants, the General Plan Advisory Committee has laid out three broad land-use alternatives — a "trends" proposal that simply extends current trends into the future, a "spheres" proposal that incorporates city plans regarding their spheres of influence, and a "vision" plan, which places more emphasis on infill development, land preservation, and concentrated urban nodes. The Advisory Committee has adopted a set of "vision statements" but has yet to craft the final set of land-use recommendations. Advocates of more compact development acknowledge that altering Riverside County trends will be a difficult political sell. "The 7,200-square-foot lot is a religion," said environmentalist Silver. One big question is how cities in western Riverside County will participate in the process — especially the land-use planning process. Cities are officially participating in the transportation and habitat planning components of the Integrated Plan, but the land-use plan will affect unincorporated county territory only. Project manager Placilla said his team is seeking to bring the cities into the process with a series of presentations — most recently in Temecula, where the City Council heard a presentation on January 18. Both Placilla and city officials say the county's effort is being received positively. "I think this is long overdue and I applaud the county for getting it together," said Gary Thornhill, Temecula's deputy city manager and community development director. Yet there is considerable bad blood between the county and many cities, which were incorporated because of discontent with the county land-use planning policies that created those communities in the first place. For example, in many cases the county has already approved projects located inside city spheres of influence. So for the cities, one goal of the process may be to change those projects or minimize their impact — perhaps by having some properties designated as part of the habitat preserve. For example, Thornhill recently praised a deal involving the county and the Trust for Public Land to purchase the 1,376-acre Johnson Ranch. In December, county supervisors approved a 3,500-home development on the ranch, which is located inside Temecula's sphere of influence. A week later, however, TPL bought the ranch for use as part of the species preserve. Contacts: Jim Venable, Riverside County Supervisor, (909) 955-1030. Mel Placilla, Svedrup Inc., (714) 549-5050. Barry Burnell, T&B Planning, (714) 662-2774. Dan Silver, Endangered Habitats League, (323) 654-1456. Gary Thornhill, City of Temecula, (909) 694-6400. Marya Morris, American Planning Association, (312) 431-9100.

The U.S. Supreme Court has ruled that citizens can sue alleged polluters under the Clean Water Act. The high court's January decision in a case from South Carolina was a significant victory for environmentalists, who argue that the government sometimes does not adequately enforce the Clean Water Act and other environmental protection laws. On a 7-2 vote, court ruled that Friends of the Earth (FOE) had standing to sue Laidlaw Environmental Services over the company's violation of a National Pollutant Discharge Elimination System (NPDES) permit that allowed Laidlaw to discharge treated wastewater into the North Tyger River. The court also ruled that the lawsuit was not made moot by a settlement between Laidlaw and the South Carolina Department of Health and Environmental Control. Finally, the court backed a civil penalty of $405,800 against Laidlaw. Laidlaw — which has since changed its name to Safety-Kleen (Roebuck), Inc. — purchased a hazardous waste incinerator in Roebuck, South Carolina, in 1986. It soon received the NPDES permit from the state. However, Laidlaw repeatedly violated permit conditions, especially limits on mercury discharges. In April 1992, Friends of the Earth notified Laidlaw that the environmental group intended to file a lawsuit under the Clean Water Act, 33 U.S.C. §1251 et seq. In an attempt to head off the lawsuit, Laidlaw invited the state to file a suit. Laidlaw drafted the lawsuit and even paid the filing fee. Just before the deadline for FOE to file its lawsuit, Laidlaw and the state agreed to a settlement that required Laidlaw to pay a $100,000 civil penalty and make "every effort" to comply with the permit. Friends of the Earth sued anyway, and the federal District Court ruled for the environmental group in January 1997. The court ruled that because the state's action against Laidlaw had not been "diligently prosecuted," FOE could proceed with its complaint. The court found that Laidlaw had violated the mercury discharge limit 489 times, with the final violations occurring in 1995. The court also determined Laidlaw had violated monitoring and reporting requirements hundreds of times. The court fined Laidlaw $405,800. Friends of the Earth appealed the penalty as inadequate, while Laidlaw cross-appealed, arguing that FOE lacked standing to sue and that the state had diligently prosecuted the matter. The Fourth District Court of Appeals reversed the District Court. The appellate panel ruled that the case was moot because Laidlaw no longer violated the permit, and concluded that civil penalties were inappropriate because they did not redress any injury FOE suffered. The Supreme Court reversed the Fourth District panel. Writing for the majority, Justice Ruth Bader Ginsburg said FOE had standing to sue because Laidlaw pollution had affected members' recreational, aesthetic and economic interests. Thus, FOE could seek civil penalties that would discourage further pollution. "Here, the civil penalties sought by FOE carried with them a deterrent effect that made it likely, as opposed to merely speculative, that the penalties would redress FOE's injuries by abating current violations and preventing future ones — as the District Court reasonably found when it assessed a penalty of $405,800," Ginsburg wrote. Furthermore, Ginsburg wrote, Laidlaw's voluntary compliance with the NPDES permit did not make the case moot. "It is well settled that ‘a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice,'" wrote Ginsburg, citing City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982). In a dissent joined by Justice Clarence Thomas, Justice Antonin Scalia said FOE did not prove it had been harmed. Scalia made clear he thought the court was giving environmentalists too much authority, and he argued that the Clean Water Act's provisions allowing citizens to sue for civil penalties were unconstitutional. "The undesirable and unconstitutional consequence of today's decision is to place the immense power of suing to enforce the public laws in private hands," Scalia wrote. The Supreme Court remanded the case to the district court for further proceedings. The case is Friends of the Earth, Incorporated v. Laidlaw Environmental Services (TOC), Inc., No. 98-822, 00 C.D.O.S. 289, Decided January 12, 2000.

The state Supreme Court has granted a petition for review of a case involving a city's utility user's tax. Six of seven justices voted to review Howard Jarvis Taxpayers Association v. City of La Habra, 1999 Daily Journal D.A.R. 9003, in which the Fourth District Court of Appeal ruled that the statute of limitations had elapsed for challenging the tax. (See CP&DR Legal Digest, October 1999.) Lawyers on either side of the case had expected the state's high court would take the case because the decision conflicted with a 1997 ruling by the same appellate division. The case stems from the La Habra City Council's decision in December of 1992 to levy a tax based on utility use. Jarvis argued that Proposition 62 from 1986 required that such taxes have voter approval. The appellate court ruled that the three-year statute of limitations expired before Jarvis filed its lawsuit in March of 1996. Jarvis relied heavily on McBrearty v. City of Brawley, 59 Cal.App.4th, 1441, a similar local tax case. In McBrearty, the court said a three-year statute of limitations was not in effect because the state Supreme Court did not rule that local taxes levied without voter approval were illegal until after the three years had expired. In the La Habra case, the court said the McBrearty decision was "flawed." The court also rejected a Jarvis argument that the three-year statute of limitations began with the first implementation of the tax in May of 1993, not with the City Council's adoption of the tax in December 1992. And the court turned away Jarvis' contention that the three-year statute is renewed every time the city collects the tax. Dozens of cities and counties have similar taxes that have been levied without voter approval.