Requiring a landowner to provide an excess amount of infrastructure capacity - and reimbursing that landowner later with other county funds - does not fall under the state's conflict of interest laws if a county supervisor is one of the landowners, according to a new opinion from the state attorney general's office. According to the attorney general, such a requirement - permitted under the state's Subdivision Map Act - is not a contract between the developer and the landowners and therefore does not fall under Government Code §1090, which prohibits public officers from being financially interested in contracts made by the boards to which they belong. The AG's opinion was requested by San Benito County in connection with a proposed agreement involving excess storm drain capacity. Under Government Code §66485-66487 - part of the Subdivision Map Act - local governments can require landowners to provide excess infrastructure capacity and then pay the landowners back later (often with funds provided by nearby landowners wishing to develop). "If a local ordinance imposes the requirement authorized by section 66485 and the local agency determines that the supplemental capacity is needed to benefit property not within the subdivision, the subdivider must provide the supplemental capacity as a condition for obtaining approval of the subdivision map," noted Deputy Attorney General Gregory Gonot in the opniion. "Under the agreement, the subdivider must be reimbursed for the expense of constructing the supplemental capacity for the benefit of later subdivisions and uses of adjacent property." However, Gonot added: "Even in the reimbursement could be viewed as a benefit, neither the subdivider nor the local agency has any choice in the matter; once the local agency orders the supplemental capacity, it is required by law to provide for reimbursement through an agreement." He said the situation is analogous to the situation laid out to the eminent domain procedure included in Santa Clara Valley Water District v. Gross, 200 Cal.App.3d 1362 (1988). In that case, the appellate court concluded that participating in a process required by statute does not constitute the making of a contract under §1090 even if a benefit may be conferred. "Similarly, here, the supplemental capacity reimbursement procedure for subdivisions is mandated by statute," Gonot wrote. "The reimbursement amount is dictated by the costs of construction; it is not subject to negotiation so as to cause an appearance of impropriety. The supervisor in question may only recover his actual costs - no more, no less - in being required to benefit property located outside the subdivision. Attorney General's Opinion 98-1001, 98 C.D.O.S. 8739 (issued November 25, 1998). Contact: Gregory L. Gonot, Deputy Attorney General, ((916) 324-7860.

The Second District Court of Appeal has reaffirmed its decision to overturn a $2 million takings judgment against the Coastal Commission - even after reconsidering the case in light of a California Supreme Court ruling in another coastal case. However, the property owners' lawyers appear determined to fight on to the California Supreme Court on the very issue that caused the remand in the first place. Lawyer Thomas Banks said his client, Peggy Ann Buckley, plans to appeal the case to the California Supreme Court because the Coastal Commission's action in the case was "arbitrary and capricious" - not an honest mistake as the Coastal Commission claimed. However, in the ruling that sent the Buckley case back to the Second District, the Supreme Court ruled that a government agency's motivation cannot be the basis of a takings decision, unless the agency acted in bad faith. In an interview with CP&DR, Banks said he would argue that the ruling should be reversed because, in his view, the Coastal Commission had deliberately asserted jurisdiction knowing it did not have the power. "It was not a mistake on their part," he said. The Second District's new ruling in Buckley v. Coastal Commission is essentially unchanged from the original ruling, which was issued more than a year ago. The court concluded that the evidence on the record does not establish that the Coastal Commission's actions in denying the Buckleys permission to build a single-family house constituted a taking. The court also ruled that the Coastal Commission did not have jurisdiction over the project because it is located within a single-family zone, meaning jurisdiction lies with the Los Angeles County Regional Planning Commission. The Coastal Commission had sought jurisdiction over the rear portion of the property, which it claimed was in a designated "environmentally sensitive habitat area". In the new ruling, the Second District addressed questions raised by the California Supreme Court's ruling in Landgate v. California Coastal Commission, 17 Cal.4th 1006 (1998) (CP&DR Legal Digest, June 1998). In that case, the Supreme Court overturned a trial judge's ruling that a temporary taking occurred when the Coastal Commission erroneously asserted jurisdiction over another Malibu property owner's plans to build a home in the coastal zone. While acknowledging that the Coastal Commission did make the error, the Supreme Court concluded that it cannot consider the commission's motives and must assume that the commission made an honest mistake in asserting jurisdiction. In revisiting the Buckley case, the Second District concluded the Landgate ruling only reaffirmed its earlier decision to overturn the trial judge's takings judgment. "Similar to Landgate, the present matter essentially involved a clash of wills between the County and the Commission and, to a certain extent, the Buckleys," wrote Justice Michael G. Nott for a three-judge panel of Division Two of the Second District. "However, the record does not support a finding that there was anything improper about the Commission's position that the rear portion of the lot was indeed an environmentally sensitive habitat area. Nor is there any support for the proposition that the Commission's motives were in bad faith. Banks said that the Buckley case is "dissimilar" from the Landgate case and he disagreed with the court on the question of bad faith. The case began when Peggy Ann and John Buckley, a married couple now separated, bought a 2.75-acre lot in Malibu in 1988. The front 1.15 acres was level but the back portion, about 1.6 acres, descended into a steep ravine. In 1989, the Coastal Commission attempted to assert juridsiction. After acknowledging that L.A. County had jurisdiction because it was a single-family zone, the Commission claimed jurisdiction over the back portion of the property because it is located in an environmentally sensitive habitat area, or ESHA - a common designation in the Malibu area. Subsequently, the county issued an exemption based on the Buckleys' assertion that they would not use the back portion of the property. (Such exemptions, commonly known as "Calvo exemptions," are permitted under Public Resources Code §30610.1 and §30610.2) The county approved a plan to grade the front of the property and build a 15,000-square-foot residence. The Buckleys then decided to sell the lot. In 1990, the Buckleys applied to the Coastal Commission for a permit to grade the back portion of the property to create a garden, a riding ring, and a guest house. In 1991, the Coastal Commission denied the application based on evidence that a landslide had developed in the ravine and threatened adjacent properties. The Buckleys did not appeal the ruling and the county soon reasserted jurisdiction over the entire property. The county issued a grading permit for the front portion of the property. and the Buckleys began grading. The Coastal Commission issued a stop-work order. But the county then issued a grading permit for the back portion of the property and the Buckleys began grading it. At that point, the state attorney general claimed the Buckleys were in violation of the Coastal Act. As the landslide threat continued, engineers and geologists from the county and the Coastal Commission concluded the grading plan was inadequate. The Buckleys continued grading; the Commission filed another stop-work order. At that point, the Buckleys went to court, filing a declaratory relief action. The Coastal Commission subsequently filed an action for injunctive relief and civil penalties and fines. The Buckleys cross-complained and the cases were consolidated. L.A. County Superior Court Judge William Huss ruled that the Coastal Commission had no jurisdiction. Subsequently, a trial court awarded $1.3 million in damages for a taking and more than $800,000 in attorneys fees and other costs. On appeal, the Second District ruled that the Coastal Commission is not permitted to designate only a portion of a lot as covered by the Calvo exemption. However, the appellate court overturned Judge Huss's ruling that a taking occurred. The court concluded that the Coastal Commission's actions resulted in neither a temporary nor a permanent taking. First, the court said that Judge Huss erred in deciding that the commission's mere assertion of jurisdiction was a per se permanent regulatory taking of their property. "After the trial court ruled that the Commission had no jurisdiction over the lot, the Commission's stop work orders no longer had any effect," Justice Nott wrote. "Any taking that might have occurred was ended by that ruling." On the question of a temporary taking, Justice Nott wrote: "Because the Buckleys could have developed the front portion of the lot, or sold the lot with the County permits in place, the grading restriction imposed by the Commission, though erroneous, did not prevent all economically viable or productive use of the lot." Banks, Buckley's attorney, wants the California Supreme Court's opinion. Although Banks's viewpoint would appear to contradict the Landgate decision, the Supreme Court was deeply split on Landgate, with the Coastal Commission winning on only a 4-3 vote. The majority, led by Justice Stanley Mosk, concluded that the courts should not examine the motive of the government agency's actions but whether there is "a sufficient connection between the land use regulation in question and legitimate governmental purpose". In separate dissents, Justices Ming Chin and Janice Rogers Brown both took the majority to task for not adhering to the U.S. Supreme Court's takings rules in cases such as the landmark First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987). Justice Chin concluded that he did not consider the delays in the Landgate case - the result of a similar jurisdictional dispute between the Coastal Commission and L.A. County - to be "normal" delays as required under Lucas. Brown chastised the majority for being "unwilling to come to terms with the true meaning and operative effect of Lucas and First Lutheran". The Case: Buckley v. California Coastal Commission, 98 Daily Journal D.A.R. 12206 (issued December 2, 1998). The Lawyers: For the Buckleys: Thomas Banks, (310) 451-8831, and Eliot G. Disner, Shapiro, Rosenfeld & Close, (310) 273-6333. For Coastal Commission: Terry Furimoto, Deputy Attorney General, (213) 897-2706.

By importing water from at least three sources, the largest housing subdivision ever processed by Los Angeles County could actually enhance the health of the wild river that splits the project site, according to proponents. Opponents of Newhall Ranch, however, see the proposed 12,000-acre development as a threat to the Santa Clara River, the region's last undammed river, and to Ventura County farmers and urban water customers. No matter who is right, Newhall Ranch is being closely watched statewide by people who want to see more thorough studies of water sources before major developments receive approval. The Los Angeles County Board of Supervisors in late November signaled its intent to approve a specific plan, general plan amendment, zoning changes, and a conditional use permit for Newhall Ranch, near Magic Mountain in northwest Los Angeles County. The proposal, from Newhall Land & Farming Co., calls for 21,600 homes and 1,000 acres of commercial, industrial and mixed-used development on both sides of Highway 126 just east of the Ventura County line. Newhall hopes to build the community for about 60,000 people over 25 years. Ventura County leaders have a number of gripes with the project, especially its potential use of groundwater. If Newhall Ranch drinks up liquid from underground, Ventura County citrus farmers will have less to pump and the Oxnard aquifer, which serves existing urban areas, will suffer, said Ventura County Supervisor John Flynn. "Our basic water supply is threatened by this project,'' charged Flynn, a leading project opponent. "I have not seen any proof of water they may have for their project except for groundwater." Nonsense, counters Newhall Ranch Senior Vice President Jim Harter. The environmental impact report, which is receiving a final touch-up, clearly identifies where the project will derive its water, he said. Newhall Ranch may import water from elsewhere in California, exercise a contractual right to tap nearby Castaic Lake, or buy from the State Water Project, Harter said. The completed project will need approximately 18,000 acre feet of water. Newhall Ranch does not need groundwater, Harter asserted. "That's a totally false assumption. It's only political rhetoric,'' advanced by Ventura County officials who want to stop the project, he said. Moreover, CH2M Hill has examined water practices in the Santa Clarita Valley and determined a perennial safe yield of the aquifer. No one suggests pumping beyond that safe yield, Harter said. In fact, he said, bringing more water into the area would add to the aquifer and Santa Clara River. When homeowners water their yards, some of the imported water will run off into the river and some will trickle into the aquifer, he said. "The water practices in the Santa Clarita Valley actually benefit Ventura County," Harter asserted. That position is a tough sell to Ventura County politicians, farmers and environmentalists who have lined up in opposition to Newhall Ranch. They contend Newhall has not adequately identified its water source and fear once the project gets going, groundwater will be the easiest source. Newhall Ranch is "very, very similar" to the Diablo Grande resort project in Stanislaus County, said Susan Brandt-Hawley, an attorney for Stanislaus Natural Heritage Project. Brandt-Hawley successfully challenged the Diablo Grande EIR on grounds that it deferred a decision on how the project would get water. Diablo Grande was first proposed during the early 1990s as a high-end resort consisting of 5,000 housing units, a hotel and conference center, golf course and other resort amenities on 30,000 acres in the usually parched mountains west of Interstate 5. The county-approved EIR required only that Diablo Grande identify a long-term water supply to move beyond a "five-year buildout," which comprised mostly roads and golf courses. However, the Fifth District Court of Appeal in 1996 said postponing "any analysis whatsoever of the impacts of supplying water to this project until after the adoption of the specific plan calling for the project to be built would appear to be putting the cart before the horse." The court said decision-makers must know the sources of water -- and impacts of using that water -- when approving a proposed development, Brandt-Hawley said. "They need to do more than defer and give a general laundry list of where they are going to get it," Brandt-Hawley said. The laundry-list approach does not tell the Board of Supervisors of impacts or provide them with options for a smaller project, she said. Randele Kanouse, an East Bay Municipal Utility District lobbyist who argues for stronger analyses of development's water sources, said builders should not be allowed to rely on the State Water Project. "The State Water Project has existing contracts to deliver 4.2 million acres feet of water a year, and the most it has ever delivered is 2.4 million acre feet," he said. Kanouse had not looked at the Newhall Ranch EIR recently but said his earlier review left him with many questions. Environmental impact reports almost never consider water sources during three- to five-year stretches of drought, which are common in California, he said. Ron Bottorff, president of Friends of the Santa Clara River, said Los Angeles County supervisors are not considering Newhall Ranch's impacts. "I don't see how we can keep approving vast development plans without identifying sources of water for them," he said. "I don't think they (Newhall Ranch) can get enough water in extreme drought years without over-pumping the aquifer." Such pumping would damage the underground portion of the river, he said. But Harter, the Newhall Ranch executive, said environmentalists have sounded a false alarm. "We don't need water at this stage because this is a general plan amendment and zone change," Harter said. Newhall must prove it has a stable water supply when it presents tract maps to the county for approval. The specific plan, EIR, and general plan amendment all contain safeguards to ensure Newhall Ranch does not result in a net loss of groundwater, he said. Experts have provided enough information about water sources and related impacts to satisfy the California Environmental Quality Act, he said. "Ventura County's concerns have been very adequately addressed by Los Angeles County," Harter said. Brandt-Hawley, however, said it is too late to study the water issue after the county approves the general plan amendment and rezoning because the project is assured at that point. "You are supposed to look at the bottom line first," she said. Los Angeles County officials never looked at the bottom line from Ventura County's perspective, said Flynn, the Ventura County supervisor. "Those people didn't give one inch. The same issues exist today as when the (draft) EIR was completed," he said. Flynn is convinced Newhall Ranch will turn to groundwater during drought years, which could prevent the underground river from going over a rock formation and into a vital agricultural valley. Los Angeles County officials expect to give Newhall Ranch final approval early this year. Newhall has started market research for the first phase of development and intends to begin building in 2001, Harter said. While Los Angeles County formalizes its approval, Ventura County supervisors, who are not unanimous in opposition to Newhall Ranch, continue to talk with their attorneys about a lawsuit, Flynn said. Supervisors also are talking with environmental groups, including the Sierra Club and the Environmental Defense Center. "It could be a definite issue for the future of agriculture in the state of California," he said. Bottorff, from friends of the Santa Clara River, suggested Ventura County will get a friendly reception from environmental groups such as his, which serves as an umbrella organization for the Sierra Club, the Audubon Society, Santa Clarita Organization for Planning the Environment and others. Both Flynn and Bottorff contend Newhall wields too much political influence. Newhall, which owns 93,000 acres, including 7,000 acres in Ventura County contiguous to Newhall Ranch, gets what it wants from Los Angeles County and the state, Bottorff said. Dave Van Atta, planning deputy for L.A. County Supervisor Mike Antonovich, who represents the area, said the county would not hesitate to reject a specific Newhall Ranch subdivision if the company does not have a permanent water supply nailed down. To do otherwise would violate the county's development monitoring system, he said - adding that a violation of the system would increase the likelihood of a successful lawsuit from Ventura County and citizen activist groups in the area. Contacts: Jim Harter, senior vice president, Newhall Ranch, (805) 255-4000. John Flynn, supervisor, Ventura County, (805) 487-6331. Ron Bottorff, president, Friends of the Santa Clara River, (805) 498-4323. Randele Kanouse, lobbyist, East Bay Municipal Utility District, (916) 443-6948.

The California Supreme Court has agreed to review an appellate court decision that ruled the City of Los Angeles should not be held liable for landslide-related damage to a property in the Pacific Palisades even though it violated municipal code requirements. In Haggis v. City of Los Angeles, Supreme Court Docket No. S074364, property owner Paul Haggis argued that his house was damaged by a landslide triggered in the 1994 Northridge earthquake, and later condemned and demolished by the city. After the house was demolished, Haggis filed a claim with the city under the Tort Claims Act. The city denied the claim and then Haggis sued, arguing that the city violated four municipal code section between 1966 and 1979, thus preventing Haggis from discovering the true condition of the property when he purchased it in 1991. In particular, Haggis argued, that in the '60s and '70s the city failed to record notices of substandard condition; issued permits to permit reconstruction and expansion of the house after prior landslides without requiring dangerous conditions to be corrected; and failing to halt or prevent work on the property until the substandard conditions had been supplied. But the appellate court ruled in favor of the city, concluding among other things that the statute of limitations had run out. The appellate court ruling was reported in the CP&DR Legal Digest, November 1998.

As California's post-recession economy picks up steam, many city and county planning departments are revisiting an important policy document that serves as one of the pillars of the community's planning. Contrary to expectation, however, this policy document is not the general plan. It's the zoning ordinance — a document that serves as the workhorse of day-to-day land-use planning but can easily be rendered obsolete or irrelevant by a rapidly changing economy or a highly political planning environment. It remains to be seen, however, whether communities are open to a wholesale rethinking of the concept of zoning. Though some policy analysts are pushing for performance-oriented standards, such standards have proven difficult to administer — and could create an open-ended system of analysis similar to environmental impact reports. Most communities appear to feel more comfortable tweaking the existing ordinance by simplifying it and focusing on potentially controversial land uses. Without question, however, there is concern and discontent in the planning community over the traditional site- and use-specific approach to zoning regulations. In residential subdivisions, deed covenants — administered by homeowner associations — are becoming the norm. Meanwhile, in commercial areas, the concept of separate uses has become increasingly irrelevant, as businesses combine activities in unpredictable combinations under one roof. "I've heard more than one planning director say, ‘I don't care what goes on in the building so long as it looks nice'," says Paul Crawford, a principal with Crawford Multari & Clark in San Luis Obispo, who says he is currently revising 12 different zoning ordinances around the state In response to this concern, communities and policy advocates throughout California and the country are using various methods to reform zoning. Among them are the following: o Perhaps the most common step communities are taking is to revisit the all-important "list of uses" — the list specifying which land uses are permissible in each zoning district. Given the rapidly changing economy, it's hard for any community to keep such a list current. Furthermore, changing poltiical circumstances make it hard to predict which uses might be controversial in the future. o Partly because of the difficulty in keeping such lists current, some communities appear to be considering a move toward "performance zoning," which emphasizes minimizing the impact of a building and its use on neighbors. o Along the same lines, a team of market-oriented public policy researchers in Los Angeles are calling for a move away from cumbersome zoning regulations toward performance standards based in nuisance law. o And at the same time, many advocates of The New Urbanism are proposing that zoning ordinances move in the opposite direction. They do not challenge the basic concept of zoning ordinance as a dense and comprehensive set of regulations, but rather propose that the ordinance be altered to favor traditional-style development patterns. Underlying much of the problem appears to be not just rapid economic change but also the peculiar nature of zoning as a tool to implement community planning. Critics across the spectrum agree that zoning decisions are often much more political "in real life" than the actual policy language would suggest. They say that zoning ordinances often appear to provide certainty and consistency, but many times they are used to provide political cover for potentially controversial land-use decisions. "The overall framework of zoning doesn't work, but the politics of local government has enveloped it," says Samuel Staley, a researcher with the Reason Public Policy Institute in Los Angeles, which recently issued a report proposing market-based alternatives to traditional zoning. Lloyd Zola of LSA Associates in Riverside, a longtime California planning consultant, agrees that local politics often distorts the seemingly clear regulatory framework of a traditional zoning ordinance. Often, he argues, the code will include permitted uses, but require conditional use permits in individual situations that provides local planning commissions with an "out" in case of public opposition. "There should not be a situation where a use is permitted in a plan when you wouldn't want it actually approved," says Zola, who has been wrestling with the development code for the Eastside Reservoir recreation plan for the Metropolitan Water District of Southern California. Increasingly, advocates of reform point to the concept of "performance zoning" as a possible alternative to the traditional use-based zoning ordinance. Under the performance zoning concept, individual development projects must meet community performance and impact standards, rather than conform to a specific list of uses. Performance zoning is preferable, Zola suggested, because no longer is the "list of uses" used as cover for a political problem: "Right now, we're using the type of use as a substitute to try to answer a question like how many truck trips are there?" Design their elegance as a concept, performance zoning standards have not proven popular. Many communities that have adopted them are now moving back toward traditional zoning ordinances, while their popularity has not spread. In recent years, for example, the pioneering performance zoning system in Fort Collins, Colorado, has been cut back. And a perfomrnance system in Tallahassee, Florida, has been replaced by a traditional ordinance. The reasons vary — but in large part they boil down to the apparent fact that performance standards can be difficult to administer and don't provide a clear picture of what a landowner may do with his or her land. Landowners in Tallahassee complained that they had to hire engineers and other consultants to determine what was permissible. "There is a fear among planners that they can't control the future with performance zoning," observed Staley. Though he's an advocate of performance standards, he acknowledged that traditional zoning regulations provide "an illusion of certainty" that is politically attractive to communities across the country. If performance standards are harder for landowners to understand, they are also harder for planning departments to administer. "For the counter planner, a traditional zoning ordinance is simple," says Zola. "You look down the M-1 list and you see whether it's allowed or not. You can operate with a less experienced, more entry-level staff. It requires far less discretionary thinking." By contrast, he adds, "it's harder to measure, enforce, and make performance determinations for every use with performance standards." In lieu of such radical departure, many communities appear to be pursuing a more incremental approach by trimming and refining the "use list". Consultant Crawford says he is working with many cities and counties to cut down the "encyclopedic list" to a more "generic list" — for example, collapsing 8 or 10 categories of "retail commerce" to just one or two. Such an approach allows a city or county to process most land uses routinely, while still calling out potentially controversial uses for special consideration. "Pet stores are a hot item everywhere right now," Crawford says. "I'm not quite sure why." Crawford acknowledges that the fine-tuning approach isn't self-executing, and that zoning ordinance "tune-ups" are still required on regular basis. But, he says, "we're trying to design them to make them easier to update." Meanwhile, Staley and Lynn Scarlette of the Reason Public Policy Institute are attempting to fine-tune their own efforts to persuade planners to move in a more "market-oriented" direction. Staley said Reason hopes to build on the appeal of performance-based zoning by creating a model ordinance that would focus on resolving nuisance-oriented problems rather than controlling every aspect of a business's activities. But he says Reason is not wedded to a specific solution — a critique he has of New Urbanist zoning ordinances, who he claims simply want to replace the old segregation of uses approach with a new, integrated-use approach: "If you're just saying, here's the problem and here's the answer, you'll run into trouble. That's what's happening with the New Urbanists. Contacts: Paul Crawford, Crawford, Multari & Clark, (805) 941-2622. Lloyd Zola, LSA Associates, (909) 781-9310. Samuel Staley, Reason Public Policy Institute, (937) 848-8896.

The City of South San Francisco isn't required to compensate a property owner for the city's own leasehold interest in the property - as well as the value of the property itself - in an eminent domain action, the First District Court of Appeal has ruled. The case involves South San Francisco's decision to take the property of the Mayer family by eminent domain - property that the city had already leased from the Mayers for use as a city conference center. The Mayers leased the property to the city in 1989 for 20 years. The city paid no rent for the first 18 months, during which the city constructed the conference center at a cost of $7.5 million. (The property had previously been used as a warehouse.) The city agreed to pay all expenses and surrender all improvements to the Mayers at the end of the lease term. The lease did contain a condemnation clause in case the city wanted to take the property. In 1997, the city initiated eminent domain proceedings against the property but specifically not against the leasehold. The city valued the property at between $4.3 million and $5.15 million, which did not include the value of the leasehold. The Mayers valued the property at $9.5 million, including the value of the leasehold interest, which the city had not condemned. San Mateo County Superior Court Judge Shelton Phrasel ruled in favor of the city and the First District, Division Two, affirmed. In court, the Mayers argued that under the lease agreement the city could not initiate eminent domain proceedings against the property alone and not against the leasehold as well. But the First District disagreed. Instead, the court agreed with the city's argument that it is possible to condemn only the property and not the leasehold based on three strands of eminent domain law - specifically, (1) the requirement that property be condemned only for a "necessary" public purpose, (2) the notion that a public agency cannot be required to either purchase an interest it already owns or purchase more property than is "necessary", and (3) the legal prohibition against reading a contract to require a city to exercise its eminent domain power in any particular way. The Mayers argued that a public agency must take its own contractual obligations into account when it exercises the power of eminent domain because if it does not it would place landowners at a severe disadvantage in eminent domain proceedings. But the First District concluded that "none of Mayer's parade of horribles convinces us that the City should be required to compensate Mayer for the value of the leasehold interest." The Case: City of South San Francisco v. Mayer, No. A081531, 98 Daily Journal D.A.R. 11910 (issued October 27, 1998; publication ordered November 23, 1998). The Lawyers: For South San Francisco: David Skinner, (510) 351-4300. For the Mayers: George Yuhas, (415) 773-5446.

The proposed expansion of Farmers Market in Los Angeles raises an important question: Can "theme-park" architecture co-exist with "real" urbanism? By now, everyone is familiar with the coming urban apocalypse known as "Disney-fication" or "the theming of America." Outside of Las Vegas and Hollywood Boulevard, this phenomenon has largely been limited to suburban "entertainment centers," which are usually anchored by multiplex theaters and sell fast food and other "impulse" items amid an atmosphere of dislocated, cinema-like fantasy. Entertainment centers are now in vogue with developers, who want to develop them everywhere. The Grove at Farmers Market is arguably the first large-scale entertainment center to be built in a mature, urbanized area in Los Angeles. But how well will this new project co-exist with the original Farmers Market, a landmark collection of small wooden buildings that has stood here for 60 years? And how well will this themed development fit into the surrounding Fairfax District? Fairfax, after all, is one of a comparatively few pedestrian-oriented streets, bustling with Orthodox Jews, émigré Israelis, and Hollywood types. In other words, Fairfax is one of the unquestionably "real" places in Los Angeles. Alarmists and worst-case scenarists may wish to cite "Unreal America: Architecture and Illusion" by the doyenne of architectural critics, Ada Louise Huxtable. In the introduction, she writes that "surrogate experience and surrogate environments have become the American way of life. Distinctions are no longer made, or deemed necessary, between the real and the false...." Elsewhere, she adds that "themed parodies pass for places now, serving as the new planning and design models, even as real places with their full freight of art and memories are devalued and destroyed." Huxtable's argument is not black-and-white, however. Her view is nuanced enough to admit the originality of Citywalk, a built-to-order shopping street that has long been excoriated by some as a privatized ripoff of a Hollywood street scene. I'm not as worried about the phony vs. the real as Huxtable appears to be. Architecture, in fact, has traditionally retailed in forms and images that are clearly unreal, starting with the bank in the form of a Roman temple, the suburban house in the form of a Tudor cottage, or the public library in the form of a Renaissance Florentine orphanage. Yesterday's phony building often becomes today's landmark. Indeed, the venerable Farmers Market itself is a group of roadside buildings of the 1930s, decked out to resemble a group of barns. That said, the issue of phony vs. real did leap out at me when I took a first glance at the new master plan for The Grove at Farmers Market. Here, the developers - upscale retailing guru Rick Caruso and the long-time owner of Farmers Market, the Gilmore family - plan to create what will be virtually a new urban district made up of ready-made fantasy streets with rows of tarted up, faux-historical buildings. The site plan, designed by the San Francisco-based architectural firm of Kaplan McLaughlin Diaz, certainly looks urbane; it almost could be a miniature city unto itself. But the street grid of this new "city" is not simple or straightforward. Like the streets in a Hollywood stage set, they twist and turn, including a curved with an "endless" vista that could have been borrowed from the backlot of 20th Century Fox. The "center" is Town Square, a well designed and well-scaled urban space of roughly 200 by 300 feet, which has the simplicity, albeit of a self-conscious kind, of an old courthouse square. A pair of parking structures conceals an oil field on the property; at six stories, they are by far the tallest structures in the project. Another constraint of the site is an historic adobe, with existing gardens. The master-plan architects have made the garden into a visual centerpiece for a three-story office building and several restaurants. Another quaint touch is the so-called "Red Cars", which are actually rubber-wheeled jitneys that carry shoppers back and forth between the new multiplex and the original Farmers Market buildings. If the shopping mall is inward looking, the site planners have been conscientious about maintaining an urbane edge on Third Street. The project actually creates a "street wall" of construction where none previously existed, and breaks the monotony every 200 hundred feet or so, when "streets" or passages into the mall open onto Third Street. The site plan seems more intent on framing views or present certain illusions rather than being strictly functional. In this case, creating surprises and enchanting scenes is functional, in a sense: Caruso, the developer, has said that he wants shoppers to stay three or four hours at his centers, rather than rush in, make a purchase, and rush out. Keeping customers on the premises means creating a place where visitors like to hang out. The toughest issue with the scheme is not the site plan but the buildings themselves. These buildings are two cuts above the kind of nostalgic fluff found in many present-day developments. The designers at Kaplan McLaughlin have demonstrated they can design historicist buildings in a literate and witty style. Yet the original Farmers Market buildings, with their naïve detailing, are no match for the sophisticated razzle-dazzle of the new buildings. It's not as if the old buildings are particularly distinguished; they are not. But Farmers Market is a genuine landmark that may appear swamped by the village of fantasy retail that it has engendered. The developers were wise to try and recreate the old Farmers Market. Still, The Grove at Farmers Market does come on a little strong. But The Grove is not Disneyland: the project is designed to fit into a real city street. The project has replaced the long parking-lot frontage along Third Street with some interesting elevations and open spaces. At the end of the day, projects are worthwhile because they provide some of the basic pleasures and functions of good urbanism. That is why The Grove may be successful even after this technicolor project has bleached in the sun for a few years. As for theme-parks and authenticity, we should keep in mind that, two generations ago, Farmers Market was a roadside novelty. Today's fantasy street may be tomorrow's real thing.

A major land deal to preserve thousands of acres of Southern California desert land is in the works between a land conservation organization and the Catellus Corporation. Acquisition of the land is considered as significant for Southern California as the Headwaters Forest acquisition has been in Northern California. U.S. Senator Dianne Feinstein threw her support behind the proposal in mid-December. Feinstein, a longtime supporter of efforts to create two national parks and a national preserve in the desert in 1994, sits on the Senate's Interior Appropriation Subcommittee, and could be crucial to getting the $36 million in federal funds for the deal. Catellus, formerly the real estate division of Santa Fe Pacific Corp., owns thousands of acres of land in the desert including land inside the Mojave National Preserve. The Wilderness Conservancy, which is trying to broker the deal, had previously purchased 14,000 acres from Catellus inside the boundaries of Joshua Tree National Park. Under the proposed deal, Catellus would sell 430,000 acres in the desert to Wilderness Conservancy, based in Yucaipa. The land would include 86,000 acres inside the 1.6-million-acre Mojave National Preserve, 140,000 acres of desert habitat between Barstow and Needles and 206,000 acres in 19 federal wilderness areas in the desert. The land is home to the endangered desert tortoise. The conservancy also hopes to acquire another 45,000 acres of land from other sources for a total acquisition of 475,000 acres. The Catellus-owned land is scattered throughout some 4 million acres of federal land, according to David Myers, executive director of the Wilderness Conservancy. Much of the Catellus land consists of alternate sections given by the federal government to the railroads in the 19th Century as an incentive to build new track. If the land were developed with homes and fences, it would mar views and impact wildlife corridors in the surrounding federal land, he said. "Four million acres would be impacted by the purchase of 400,000 acres," he said. Catellus has sold some of its land in San Bernardino County to private landowners, and new landowners have erected gates and fences, which limit access to nearby public lands. "For sale" signs for Catellus property have been erected inside the Mojave National Preserve, Myers said. Under the deal, the Wilderness Conservancy also plans to buy the remaining 20,000 acres of private land inside Joshua Tree National Park from other small private landowners. The conservancy would donate land back to the national park, and would put up $11 million in cash for land acquisition from Catellus. The group is seeking $36 million from the federal government for the remaining costs for land acquisition. The money would come from the federal Land and Water Conservation Fund. Mojave National Scenic Area and Joshua Tree and Death Valley National Parks were created in 1994 when Congress approved the Desert Protection Act. The measure also created over 100 new wilderness areas. Myers planned to meet with Catellus's president in mid-December. The company has not committed to the deal. But one Catellus executive told the Los Angeles Times that "it's a pretty good offer." The Wilderness Conservancy is one of the west's largest land trusts, with title to 150,000 acres in Southern California. Contacts: David Myers, Wilderness Conservancy, (909) 797-8507.

The U.S. Forest Service should have prepared an environmental impact statement before awarding a series of contracts for timber salvage sales in the Umatilla National Forest in eastern Oregon, the Ninth U.S. Circuit Court of Appeals has ruled. The Ninth Circuit's ruling - the latest in a long series of decisions on Forest Service operations in the Northwest - reversed the ruling of U.S. District Court Judge Ann Aiken, who had granted summary judgment to the Forest Service against the claims brought by the Blue Mountains Biodiversity Project and other environmental groups. The ruling means that the Forest Service will have to prepare an EIS even though some of the sales had already commenced in the summer of 1998. The case involves proposed salvage timber operations in the wake of the largest wildfire in the recorded history of Umatilla National Forest. In 1996, three wildfires swept through the watershed of the North Fork of the John Day River in eastern Oregon and Washington, charring 51,000 acres in a 10- to 14-mile swath. Subsequently, the Forest Service proposed three separate timber sales - known as the "Big Tower" sales - encompassing more than 4,100 acres that would remove virtually all remaining trees in the area and yield 30 million board-feet of lumber. According to the Ninth Circuit ruling, however, 65% of the area to be logged contained soils with high erosion potential. The Forest Service prepared an environmental assessment, or EA, for the proposed timber sales. But the EA did not identify the locations of the 18 miles of road that would be required to complete the timber sales, nor did it discuss the cumulative impact of the Big Tower sales and four other timber sales proposed in the fire area. Following Judge Aiken's ruling, the Forest Service permitted logging to begin in August of 1998. In November, however, the Ninth Circuit enjoined all future logging and road building in the fire area pending a ruling in the case. In reversing Judge Aiken, the three-judge panel of the Ninth Circuit found considerable deficiencies with the Forest Service's EA for the Big Tower salvage operation. "The Big Tower EA simply fails to persuade that no significant impacts would result from Big Tower project," wrote Judge Betty Fletcher for the panel. "We find no documentation of the estimated sediment that would result from the logging and accompanying roadbuildings or the impacts of increased sediment on fisheries habitat. The Forest Service's only attempt to measure sedimentation failed when its data collection box overloaded with sediment." The Forest Service made several arguments as to why an EA was sufficient and an EIS was not necessary, but the Ninth Circuit rejected them all. For example, the EA identified "best management practices" to be used in the logging. But the Ninth Circuit noted that these best practices are based on "past observations of logging on unburned areas.": Wrote Judge Fletcher: "We find nothing in the EA to support the Forest Service's conclusion that the proposed BMPs will be adequate in a severely burned area where increased levels of erosion have already occurred. We note that even before the fire water quality was suffering." Similarly, the Ninth Circuit rejected the Forest Service's argument that an EIS was unnecessary because the timber sales could be "tiered" off of the Umatille National Forest Plan EIS and other EAs. "Nothing in the tiering regulations," Judge Fletcher wrote, "suggests that the existence of a programmatic EIS for a forest plan obviates the need for any future project-specific EIS, without regard to the nature or magnitude of a project." Perhaps most significantly, the Ninth Circuit found that the EA did not take cumulative impacts into account. The Big Tower project was only one of five separate salvage sales proposed in the wake of the fire. The Ninth Circuit noted that the Big Tower EA failed to even mention three of the four other salvage sales proposed for the fire area - even though the Forest Service acknowledged that all five were part of a coordinated strategy. "At the very least," wrote Judge Fletcher, "these sales raise substantial questions that they will result in significant environmental impacts. A single EIS, therefore, was required to address the cumulative effects of these proposed sales." The Ninth Circuit also ruled that the case was not rendered moot by the fact that more than half the trees have been cut down. Relying on its recent decision in Kettle Range Conservation Group v. U.S. Bureau of Land Management, 150 F.3d 1083, the Ninth Circuit panel concluded that because some trees are still standing the case is still a live one. The Case: Blue Mountains Biodiversity Project v. Blackwood, No. 98-35783, 98 Daily Journal D.A.R. 12223 (issued December 2, 1998). The Lawyers: For Blue Mountains Biodiversity Project: Marc D. Fink, Boise, Idaho. For U.S. Forest Service: Michael J. Martin, U.S. Department of Justice, Washington, D.C.

Despite a developers' decision to drop out of a 40-acre sports-themed project in Anaheim, city officials are keeping the project on track. Known as Sportstown, the entertainment project is taking shape in the parking lot of the Big A, home of the Anaheim Angels baseball team, and close to the Arrowhead Pond, home to the major league hockey team, the Mighty Ducks. In November, Cleveland-based developer Forest City Enterprises Inc. dropped plans to develop Sportstown, which is to include sports-themed businesses, hotels, and offices adjacent to an Amtrak train station at the stadium. Speculation arose that Forest Cities had dropped the project because of an abundance of new entertainment and retail establishments in the area, including those planned for the Disneyland area and in the nearby Orange County cities of Orange and Garden Grove. But Anaheim officials moved ahead in December with plans to lease land to one sports-themed business and to sell land to an office building developer. The land is located inside a city redevelopment area, according to Richard Bruckner, deputy director of the city's community development department. The sports-themed business is called Gotcha Glacier, and is to include indoor skiing, skydiving, snowboarding and a water park, along with retail and restaurants on 430,000 square feet. The project is to cost $65 million, and the city will receive $37.8 million in revenue over 30 years, under terms of the lease, according to the Orange County Register. Already open in Sportstown is Tinseltown Studios, a 700-seat restaurant and nightclub that gives guests a chance to pretend they're Hollywood celebrities by walking a red carpet, give autographs and be interviewed in front of television cameras. Bruckner said he expects the city to seek hotels and retail for the remaining acreage in Sportstown. The other venues will all tie together with sports, he said. Other new developments in the area include the 12-acre Stadium Crossings, rising across the street from the Big A, and a 25-screen theatre complex. Contacts: Richard Bruckner, city of Anaheim, (714) 765-4300.

A state hospital once used as an insane asylum has triggered one of the most contentious development battles in Silicon Valley, with officials on both sides of the deal calling each other crazy - and more. "It was a sweetheart deal and there was a lot of yelling over it," said Eddie Souza, former Santa Clara mayor. Sun Microsystems is building new corporate headquarters on 82.5 acres it bought from the state for $52 million. The high-tech company's digs will rise on a portion of the former Agnew Development Center, which lies at the north end of Santa Clara across the Bayshore (101) Freeway. which divides the north and south parts of Santa Clara. "This is a model of private/public partnership," said Bill Agnello, Sun's vice president of real estate and the workplace. "A lot of people said we got a great deal, but they don't understand how corporate developers pay for land." Located at Lafayette Street and Montague Expressway, the Agnew site boasts some open land, R&D facilities, and housing developments that are underserved compared with the south end of town. There are no public libraries, parks, police or fire stations, let alone shopping mall. Sun and its supporters said that the Sun project would help attract these amenities to the area But Sun had to battle numerous groups over destroying Agnew, a Beaux Arts complex built in 1888 whose 60 buildings featured tiled roofs, marble floors, and Mediterranean-style flourishes. Its elegant clock tower holds an original Seth Thomas timepiece; some rooms sported shoulder-high wainscoting. And quite apart from the preservation issue, opponents of the project argued that a new library and supermarket were already on the way whether Sun moved in or not. The 330-acre site was landscaped by John McLaren the longtime superintendent of Golden Gate Park. Some 1,300 trees had been planted to shade the asylum's retarded, mentally ill and disabled residents, who farmed the surrounding land. The complex thrived until the 1960s, when the state's commitment to the mentally ill dwindled. By 1995, Agnew had deteriorated so much that it flunked requirements for continued federal funding "The state had to make a decision," said Geoff Goodfellow, Santa Clara planning director. The state moved Agnew's 800 residents to a smaller facility, then closed Agnew's Santa Clara campus. "The state was supposed to sell (Agnew's) for fair market value, although there is legislation that can force them to use it for open space or affordable housing," Goodfellow said. Instead, the state held a confidential auction in which it collected 200 sealed proposals for the site. Sun, which would demolish most of Agnew's buildings and construct its own facility, was the only high-tech finalist. The state sold Sun that portion of land where the buildings were clustered. Out of the $51 million purchase price, Sun would spend $17 million for renovation of a few buildings which would not be demolished. The state will reimburse Sun for the cost of renovation, so the net purchase price was $34 million. Critics point out that Sun paid a net of $412,000 per acre, a fraction of the then-market value of $1.5 million per acre for land in this coveted area. (Sun responded that a lower price was appropriate because it plans to build at a low floor-area-ratio of 0.28.) Neither former mayor Souza nor current city councilwoman Pat Mahan, a lawyer, could explain the state's secretive process. "I had some concerns about it," said Mahan. "But by the time the city got the (Sun) project, it was done deal." Representatives of the state Department of General Services did not return repeated telephone calls. In December 1996, the state presented the Santa Clara City Council with the done deal. "Either you accept the deal with Sun, or not at all," Mahan said the council was told. Many citizens and officials unsuccessfully tried to convince Sun to swap the historic site with vacant land next door. Santa Clara's planning commission rejected Sun's project 4-3, but the City Council ignored staff recommendations and approved the project 4-3. Then began a complicated two-tiered environmental review process that made planning difficult, said Goodfellow. Planners had to draft an EIR for Sun's project, and another for the remaining 248 acres. Meanwhile, citizens galvanized to stop Agnew's demise. One group registered the 330-acre site as a national historic district in August 1997 - making it the only such historic district in Northern California. "We thought the move would save those buildings," said organizer Liz Holmes. But because a private - not public - entity was doing the razing, the buildings weren't spared. Then, a second citizens group filed a lawsuit against the city, attacking its EIR. The citizens lost but appealed." The delays were costing us a lot of money in stalled construction costs," said Agnello. So, Sun offered to pay the citizen's legal fees if they'd drop the matter; they did. Meanwhile, a third grassroots group collected enough signatures to put Sun's project to a public vote. To defeat Measure D, Sun mounted a well-defined public relations campaign, mailing 14 different pamphlets and spending at least $500,000. "We tried not to make it too glitzy," said Agnello. "Yet, we explained our position, which was we would preserve some buildings, have open space and stimulate development on that side of the city." In June, 64% of Santa Clara voters strongly backed the Sun project. However, bad blood boiled into November, when Santa Clara held its municipal elections. Sun's project became a campaign issue although voters did not cast ballots along Sun lines. Both Mayor Judy Nadler - who supported the Agnew project - and Councilwoman Mahan - who opposed it - won reelection by wide margins. Sun has since tried to appease critics and provide public needs. It will save three buildings as well as part of the clock tower, which will become Sun's reception area. The three buildings will be shared with the public, while an adjacent 14.5-acre grassy field will become a park. Sun will spend $220 million building a low-density, low-rise campus, said Agnello. For its part, the state will pay for a homeless shelter and a child-care center on site. Agnew's remaining 248 acres will become a housing development with a mix of single-family, low-income housing, and senior housing. Prior to Sun's arrival, the city had already started to bring a supermarket chain and public library to the area. "But now the question is how we'll fund a new school and park," said Goodfellow. There are many lessons to learn from the experience, said Mahan. "The major one is you have to figure out a way to be pro-active in planning." In this case, she regrets that the state didn't involve the city earlier in the process. "I wish there had been an opportunity for the city to say to the state, 'Look, this is what we need, let's work together on this.' "But that never happened." Contacts: Bill Agnello, vice president of real estate and the workplace, Sun Microsystems, (650) 934-9651. Geoff Goodfellow, Santa Clara director of planning, (408) 261-5260. Pat Mahan, Santa Clara City Councilwoman, (408) 237-1055. Eddie Souza, citizen, (408) 984-6037.

San Diego County's integrated waste management plan did not require preparation of an environmental impact report even though the plan called for the creation of new landfills and identified 10 possible sites for those landfills, the Fourth District Court of Appeal has ruled. "There is no substantial evidence in the administrative record to support a fair argument that the county's adoption of the summary plan and siting element may have a significant environmental impact, and thus the county did not prejudicially abuse its discretion by certifying the negative declaration," wrote Justice Gilbert Nares for a unanimous three-judge panel of the Fourth District. Nares also wrote that "because all 10 of the proposed landfill sites identified in the siting element are only 'tentatively reserved', preparation of an EIR (including a program EIR) would be premature and is not yet required under CEQA." The lawsuit was brought by the Pala Band of Mission Indians, whose reservation is located near Gregory Canyon, which was identified in the waste plan as one of the 10 possible landfill sites. In fact, the county's voters specifically designated Gregory Canyon as the location for a private landfill by passing Proposition C in 1994. After preparing the plan pursuant to the state's integrated solid waste management law, the county Department of Public Works issued a negative declaration on the plan under the California Environmental Quality Act. The Pala tribe sued based on a four-page comment letter it had written in response to the negative declaration notice. In the letter, the tribe argued that the county had not examined several important environmental issues in deciding to issue a negative declaration. Among other things, the tribe claimed that the county's initial study ignored "considerable documentation of the potential secondary effects" of the plan and argued that the inclusion of a landfill site "is the first step in the approval process of that landfill". The tribe also argued that the initial study ignored a "substantial body of information" available from the county, and that it should conduct additional analysis focusing on "potential effects of developing the landfill sites" and "program-level mitigation measures". At the trial court level, Superior Court Judge Judith McConnell, the designated CEQA judge for San Diego County, denied Pala's petition, claiming that because the Gregory Canyon site was only one site of 10 under consideration, it was premature to require an EIR. The appellate court agreed. "Because the proposed potential landfill sites identified in the siting element are only 'tentatively reserved,' there is nothing in the administrative record to establish it is reasonably foreseeable at the current planning stage that any of the sites will actually be developed. The siting element suggests that although potential sites have been identified in North and South County, these sites may not be developed." The appellate court also concluded that none of the cases Pala used to make its argument required a different conclusion. The three cases in question all dealt with program EIRs and tiering, but the appellate court concluded that they were not "on point" in that none of them required even a program EIR at such an early stage. The court also rejected Pala's argument that its comment letter constitutes substantial evidence in support of a fair argument that the county's approval of the siting element may have a significant impact on the environment. The letter, the appellate court found, "consists almost exclusively of mere argument and unsubstantiated opinion, which are excluded from the definition of substantial evidence under CEQA." The Case: Pala Band of Mission Indians v. County of San Diego, No. D029489, 98 Daily Journal D.A.R. 12579 (issued November 18, 1998; published December 9, 1998). The Lawyers: For Pala Band: Thomas D. Mauriello, (619) 515-1144. For San Diego County: R. Mark Beesley, Deputy County Counsel, (619) 531-6456.