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New conflict-of-interest rules promulgated by the Fair Political Practices Commission went into effect in February, and many changes affect public officials who make land use decisions. The rule changes come at a time when land use scandals appear to be at a new peak, with one staff planner pleading guilty to soliciting bribes and the planning director in another city facing a trial on bribery charges (see sidebar). Leaders of the FPPC say the new regulations (California Code of Regulations §§ 18700 - 18708) and an accompanying eight-step test for determining conflicts of interest make rules clearer for government officials and the public. "If nothing else, the revisions to the rules allowed us to explain what the rules really were because there was a lot of misinformation out there," FPPC Chairwoman Karen Getman said. The FPPC revised the longtime "300-foot rule," and modified other regulations to allow small-time landlords to make rent-control decisions. The agency also attempted to clear up when a public official with a conflict of interest must participate. But some observers question whether the changes, two years in the making, will have much impact. "It's not a significant change," said Matthew Jacobs, a Sacramento attorney with Downey, Brand, Seymour and Rohwer and a former federal prosecutor. "It's kind of tweaking at the perimeters, but the fundamental rules are still the same. There is only so much that can be done within a regulatory structure that is existing." Getman said the new regulations are not an attempt to go after the truly bad actors because they are usually busted for violating the Penal Code. Still, she said, the revisions should make conflicts clearer in cases where a public official makes a decision that helps himself. "There are more of those out there than you care to see," she said. The FPPC hopes to prevent public officials from even getting in that position. Jacobs, who prosecuted the Operation Rezone sting in the Fresno area during the 1990s, said that the FPPC's rules, in fact, do affect criminal cases. Prosecutors will not bring a case until they have evidence of bribery or a quid pro quo, but they often use violations of state conflict-of-interest requirements in the actual prosecution, he said. The voter-approved Political Reform Act of 1974 created the FPPC. The Act addresses a variety of state and local government officials — not just those in the land use field. The FPPC often gets more attention for its oversight of campaign contribution reporting. But state regulators spend a great deal of time dealing with land use conflicts of interest because there are so many gray areas. Land use decisions are seldom a simple yes or no, unlike the awarding of a contract. "The land use decisions caused the most trouble," Getman said of earlier rules. "More people were disqualified and felt they were unjustly disqualified. A lot of the advisors had trouble interpreting the rules." The new eight-step, conflict of interest test is intended to make things easier for advisors and public officials. The eight-step test begins with who is bound by the conflict rules, moves through potential conflicts and economic interests, and addresses various exceptions. Adoption of the eight-step test is part of making the system more accessible to everyone, FPPC officials said. Agency members are also accepting speaking engagements, publishing articles and working with the League of California Cities to spread the word. A $500,000 grant has funded a new publications unit, and the agency is urging public officials to use a free advice line, 1 (866) ASK-FPPC. Under the old 300-foot rule, decision-makers were presumed to have a conflict of interest if they owned property within 300 feet of a proposed project, and they had to abstain from the matter. If they owned property 300 to 2,500 feet from the project, a conflict existed if there was a $10,000 effect on the fair market value of their property. The new rules extend the presumption of a conflict to owners of property within 500 feet. But beyond that point, proof of a material conflict is needed. The FPPC made the change because the old rules for the middle zone of 300 to 2,500 feet were impossible to enforce, Getman said. Five-hundred feet is also a new standard for determining conflicts for public officials who are leaseholders. Previous rules involved complicated criteria for determining whether a leaseholder would be affected by a land use decision. The new rules presume a conflict of interest within 500 feet, although the conflict can be rebutted by proof, said John Wallace, FPPC senior counsel. Officials hope that a 500-foot threshold for both property owners and leaseholders will make rules easier to understand. The FPPC also cleared up rules regarding landlords who vote on rent control issues. Now, anyone who owns three or fewer rental units can participate. Owners of more units can participate in some instances. "We had rent control boards where, basically, all the landlords were disqualified and only tenants got to make the decisions," Wallace explained. The revisions should allow more people to participate. The rules also have new definitions for determining a "material" financial effect on a business in which a decision-maker owns stock. The FPPC continues to wrestle with how to determine the "reasonably foreseeable effects" of a decision on a public officials' financial interests. The FPPC is accepting comments on the new rules and plans to revisit the regulations at the end of the year. Contacts: Karen Getman and John Wallace, Fair Political Practices Commission, (916) 322-5660. Matthew Jacobs, Downey, Brand, Seymour and Rohwer, (916) 441-0131. FPPC website: www.fppc.ca.gov

With its well-paying high-tech jobs, close commuting proximity to Sacramento, a scenic location on the American River, ample supplies of new housing and a quaint downtown, Folsom has many assets. Because of those advantages, the city on the eastern edge of Sacramento County has attracted hordes of newcomers in recent years. As a result, schools are overcrowded and the city is rapidly running out of land. The city is culminating a 10-year effort to expand itself to attract more industrial and commercial growth, while contending with low-income housing advocates who say there is not enough affordable housing. In recent months, the City Council pondered whether to adopt an emergency ordinance to freeze development applications. Folsom has about 50,000 residents, not including the roughly 7,500 inmates at Folsom State Prison. The city has grown at an annual rate of 5% to 10%, according to Planning Director David Storer, and expects to have as many as 70,000 residents by the year 2013. With all available land expected to be built out by early in the next decade, the city is looking south of Highway 50 to accommodate future growth. In May, the Sacramento County Local Agency Formation Commission is expected to approve Folsom's application to extend its sphere of influence to include nearly 3,600 acres of hills and woodlands south of the city's current borders, according to John O'Farrell, executive officer of LAFCO. The land is outside the county's current urban growth boundary. In order to gain LAFCO approval for the application — which is the first step towards annexing the land into the city — Folsom officials have agreed to 16 conditions for such things as improvements to Highway 50, protection of native trees, clean up of contaminated land and groundwater, and keeping 30% of the acreage as open space. O'Farrell called the conditions the "most far reaching conditions this LAFCO has ever imposed." "We agree with all the conditions," said Storer, adding that it is developers who will have the obligation to comply with the conditions. Storer said the current City Council has not said what kind of development it wants to allow in the new area. An earlier City Council told LAFCO it wanted commercial and industrial development, and open space. The process stands in contrast to another recent battle in eastern Sacramento County. Last year, developer C.C. Myers placed Measure O on the ballot to bust the county's urban services limit and build the 3,000-home Deer Creek Hills subdivision eight miles south of Highway 50. That measure was opposed by several members of the Folsom City Council and was defeated by a large margin (see CP&DR, December 2000). Not everyone in Folsom agrees with the southern expansion. A group opposed to the application, called Alliance of Folsom Residents, submitted a petition signed by 600 residents to LAFCO in December, according to the Sacramento Bee. A lack of public school classrooms and a shortage of affordable homes are partial causes of the backlash. Legal Services of Northern California threatened to sue the city earlier this year, according to Storer. The legal aid group charged that the city has violated state law by failing to ensure an adequate supply of affordable housing in its 1992 general plan. Legal Services also testified in opposition to the proposed sphere of influence application, according to Storer. A Legal Services representative did not return calls from CP&DR. Although the City Council had taken no action on a proposed emergency ordinance to freeze development applications by mid-March, it appears that the Legal Services' pressure and resulting negotiations have had an impact. The City Council has authorized preparation of a new housing element to be completed a year ahead of schedule. Recent housing development has not been of the "affordable" variety. The city has been issuing more than 1,000 single-family housing annually. And after issuing no building permits for apartments between 1992 and 1997, the city approved 1,026 high-end apartments in 1999. Growth is exploding throughout the region at the base of the foothills, Storer noted. Neighboring communities — including unincorporated El Dorado County, and Roseville and Lincoln in Placer County — have boomed in recent years. One reason for the growth is the expansion of high-tech companies such as Intel, which is a major employer in Folsom. The city has also seen tremendous growth of its retail sector in recent years, adding a power center and expanding an outlet center. In addition, the historic Old Town district's quaint antique stores and restaurants also draw tourists. An extension of the county's light rail system to Folsom in 2003 is also expected to draw more visitors and commuters. All the growth has placed a strain on the city's schools, which are part of the 16,000-student Folsom-Cordova Unified School District. The district covers both the city of Folsom and the neighboring unincorporated community of Rancho Cordova, which has not seen the same rapid growth as Folsom. The enrollment at schools within Folsom has jumped from 4,928 in 1992 to 7,500 students this year, and is expected to rise to 13,700 in 2014, according to Debbie Bettencourt, deputy superintendent of the district. Classroom space in Folsom is at a premium at elementary schools near new housing developments. Large signs in front of some of the newest elementary schools warn parents that the schools are oversubscribed and their children may not be able to attend those schools if they buy homes nearby, according to John Frith, a six-year Folsom resident who's children have attended local schools. Instead, children are bussed to schools outside their neighborhood. However, a new elementary school is scheduled to open in August, said Bettencourt. A new high school opened two years ago at a cost of $68 million, but it is already at capacity, and a second high school is planned, she added. In the past, district-wide bond measures have failed. Several years ago, the two communities began conducting separate bond elections, which were to raise school construction funds for Folsom and to modernize schools in Rancho Cordova. The last time Folsom passed a school bond was in 1992, Bettencourt said. Last May, Measure M, a $38.4 million school bond measure failed when it fell 74 votes short of the required two-thirds majority. The passage of Proposition 39 last November, which allows school bonds to pass with 55% of the vote, will not help Folsom because the proposition does not cover elections for school facility improvement districts such as the one used in Folsom. Bettencourt said the district is hoping to get corrective legislation passed by state lawmakers this year to allow Folsom-Cordova bonds to win elections with 55% of the vote. The district is tentatively planning a bond measure for this November, but it would be unaffected by any corrective legislation, according to Bettencourt. The district did away with year-round schooling because the community opposed the schedule; however, the district may have to return to it, she indicated. Contacts: John O'Farrell, Sacramento LAFCO executive officer, (916) 874-6474. David Storer, Folsom planning, inspections and permitting director, (916) 355-7200. Debbie Bettencourt, Folsom-Cordova Unified School District (916) 355-1100.

After serving six years in the state Assembly, Sen. Sheila Kuehl (D-Santa Monica) was elected last November to the State Senate seat previously held by Tom Haden. Earlier this year, she was named Chairwoman of the Senate Natural Resources and Wildlife Committee. Although much of her work in the Assembly centered on social issues, Kuehl did serve on committees concerned with land use and was a director of the California Coastal Conservancy. Before coming to the Legislature, Kuehl was a law professor at Loyola, UCLA and USC law schools. She is a graduate of Harvard Law School. CP&DR: What are your priorities for the Senate Natural Resources Committee this year? Kuehl: One of the major areas that I see that we're going to be spending quite bit a time on are the NCCPs — the question, really, of how we can treat habitat as a whole instead of having to deal with one species at a time, the fact that there have been no real standards for how to do that. And I think there will be a number of bills that will bring real standards to how these are approved — looking at corridors and migration patterns and how numbers of species are interconnected. And I think also the question of how you are going to embrace giving away some things forever in exchange for others things needs to be addressed. There are a number of people in the past who have said we don't want any development…. The way the law has been constructed you have to say, almost artificially, there are fairy shrimp here, so don't come near us. It's not in the state's best interest to deny absolutely everything and therefore we need to develop some protective standards for these tradeoffs, which have been so ad hoc. The second issue we will deal with will be in regards to forestry. The question of clear cutting will get a hearing. We will be talking about what "sustainable yields" mean and standards for timber harvest plans. It's my hope to develop some long-term strategy for our forests. CP&DR: Public or private forests? Kuehl: Both. And I think the third issue will be whatever comes in response to the Supreme Court decision on the Clean Water Act. The question is whether having the regional water quality control boards, having the Coastal Commission jurisdiction, having endangered species review … is sufficient. There are already 3 bills being introduced dealing with pieces of this problem. One of them is that anything that touches a wetland has to go through CEQA. … I know there is a concern about that decision. CP&DR: Are you concerned about it? Kuehl: Well I am. Having the Army Corps of Engineers take a look at something gives us a little extra clout in the state. Saying they don't have jurisdiction leaves it totally to the state. We at least have to have something to say about these projects. CP&DR: Are you suggesting the state has lost some of its leverage? Kuehl: I am interested in making certain that if any gaps were created by the court decision that we have sufficient law to fill those gaps now — or we need to make certain that we have the ability to permit on all the lands that we think are covered. And I think a fourth area that will be covered will be the Coastal Commission itself. They are so understaffed. They seem to be able to take a hard look at big projects, but that eats up so much of their staff and time that they have been less likely to scrutinize single-family dwelling projects. And the result, I think, is that a lot of them are permitted. And when you add all of them together they may not be as devoted as they need to be to controlling runoff, and addressing other impacts. When you add hundreds and hundreds of houses in an area, even if they are not very close to each other, I think there is an impact. So I think there will be a discussion, although not necessarily in the form of legislation. It might just be informal discussions about what's needed. CP&DR: Does the energy crisis change your committee's focus? Kuehl: Not as much. There's an interplay between this committee and air quality issues and maybe, to a greater extent, water issues. But because there are committees that deal with water and with environmental quality and with energy, we don't really have to. I think that we will be called upon, in terms of the energy issue, to have an opinion about the acquisition of conservation easements on some of the utility companies' lands. Because if the state decides to help the utility companies avoid bankruptcy, I think it's clear we are unwilling to donate money for that purpose. Rather, we have expressed an interest in acquiring an asset. Among the assets being discussed are the lands that the utilities own. This last week we talked about whether we would want to acquire conservation easements or actual fee title ownership of the land. … We are asking for the development of information to compare the benefits to the state of a 99-year conservation easement on some of the lands, which would preserve them from development or sale or pollution, we hope, or acquisition of the land outright. There may not be a big difference in price. CP&DR: Last session, you carried legislation that would have tightened the connection between water availability and land-use planning. Are you still pursuing that? Kuehl: I'm doing it again. SB221 has the same provisions that SB 1219 had at the end. So I'm starting it up for another two years. CP&DR: Why is this a priority for you? Kuehl: I think that people now, perhaps because of the energy crisis, are more and more accepting of the notion of scarcity of resources. Where we used to think there is plenty of water for everything, plenty of electricity, plenty of gas — no matter how much the state grows, no matter how much the demand grows, God will provide.… I think we cannot assume an endless, boundless supply of everything, and that includes water. We have never asked, when a new development is being prepared, for an assessment of whether adequate water can be provided for new residents and future residents, even though we do ask if there will be adequate sewer and adequate schools. Water has to be taken into account. CP&DR: Why is there such strong opposition to this concept? Kuehl: I think the builders were not happy because they thought it would prevent them from making their living. But the truth is, I don't think it will because years ago we instituted the water transfer system in this state, so that if your local water agency cannot provide the needed amount, then the local permitting authority can contract with someone else to supply the water. Or we need to institute a water conservation plan, or a graywater plan, or we need to double pipe so you don't endlessly water your lawn, for example. The opposition thinks this is meant to be a slow-growth or no-growth tool, but I don't mean in that way. I mean it as a planning tool. CP&DR: You are a member of the Smart Growth Caucus. How can the Smart Growth Caucus influence decision-making at the Capitol? Kuehl: It's a lot of people in the first place, and that translates into a lot of votes. And most members are leaders of committees. If you've got the chairs of Local Government, Natural Resources, Water, it has an influence. Especially Local Government, because those are the permitting agencies. CP&DR: Do you have a definition of "smart growth?" Kuehl: Smart growth would prefer infill to sprawl, from the point of view of not having to transmit or deliver services in a brand new fashion in a brand new place. It relates enormously to transportation and the feeling that if we continue to rely on an already overloaded transportation system to move us great distances between home and work, there will never be an end to congestion. So smart growth contains principles so that you can plan to have homes close to where you work. If you're going to build a whole new community off somewhere, let's not have it just be a bunch of houses with no work nearby. CP&DR: Does that require changes in how local government is financed? Kuehl: I suppose it will also require us to take another look at the ways we've left for cities to finance themselves. If all they get is sales tax, then we can't blame them for wanting to maximize that income, and that translates to more big box stores and less residential property. So it does cut in the other direction from smart growth, CP&DR: Do you think we will see legislative changes to CEQA this year? Kuehl: I haven't seen any large-scale approaches to changing CEQA. But I know there are always bills to unravel CEQA, which would not get a friendly welcome in my committee. Sen. Kuehl was interviewed by CP&DR Managing Editor Paul Shigley in late February.

Is California running out of land? At first glance, this may seem to be a preposterous question. After all, California has something like 150,000 square miles of land – and the vast majority of it is not urbanized. The federal government owns half of it for parks, national forests, and the like, and most of the rest of it is used to grow food. Even with the rapid urban growth we've experienced during the past half-century, how can we be running out of land? Well, that's exactly the point. We're not running out of non-urbanized land. But we are running out of land that is not permanently "spoken for" in some way or another – especially around the large coastal metropolitan areas where most Californians live and where, believe it or not, most of our future urban growth is going to occur. By "spoken for," I don't mean developed. Rather, I simply mean that the land has been more or less permanently locked up for some particular use – urban growth, agriculture, open space, national parks and forests, endangered species protection, and so forth. When you use that definition, it becomes clear how tight our coastal land situation has become – especially when you realize that most of California is made up not of wide open spaces, but of valleys, mountains, and coastal plains that create a particular boxed-in structure to land resources. The nine-county San Francisco Bay Area is almost completely built out. There is abundant open space in Marin County, but that has been permanently set aside for dairy farming. There is abundant undeveloped land in the East and South Bays, but mostly that property is in the hands of land trusts for open space. The few places where it is possible to place more urban growth – eastern Alameda and Contra Costa Counties in particular – are battlegrounds where most remaining land will undoubtedly be set aside for open space, no matter who wins the battle. No wonder suburbanization is oozing south and east to the Central Valley and the Salinas Valley. Given its traditional reputation as the nation's capital of sprawl, it is even more surprising that the five-county metropolitan Los Angeles area is in pretty much the same situation. A vast central area has been urbanized during the last 50 years. The entire coastal plain (including northern Orange County), and a ring of valleys (San Gabriel, San Bernardino, San Fernando, Santa Clarita, Conejo) — separated by mountains from the coastal plain — all have been consumed for The American Dream since the end of World War II. Much of the remaining land (desert and mountains mostly) is in the hands of the federal government. Thus, there are a few places left to go, but, as in the Bay Area, these are the familiar "growth battlegrounds" you read about in these pages each month. In Ventura County, voters have knocked 100,000 acres of agricultural and open space land out of the development game. In Orange and Riverside Counties, the Endangered Species Act will do the same for a half-million acres more – land that probably would have been available for development as recently as the 1980s. The areas unaffected by these constraints are subject to political battles, such as the Newhall Ranch property in northern Los Angeles County – where the eventual project, assuming it is approved, will certainly accommodate far less growth than would have been the case in the past. In fact, the only part of the region that seems to have a vast amount of unconstrained land for growth is the "high desert" – specifically the Antelope and Victor Valleys. These areas have been growing fast for the last 20 years, but they remain far from job centers, located in harsh climates, and their growth has not been without social and economic stress. The fact that we are running out of land does not mean that our overall urban growth will slow. Every projection suggests that California in general and metropolitan Los Angeles in particular will continue to add population at a brisk pace during the next 20 years. In the five-county Los Angeles region, the phrase most frequently bandied about is "two Chicagos." The assumption is that the region will have to accommodate 6 million more people (about a 40% increase over the current 16 million) during the next 20 years. How could this be? How could it be that we must accommodate millions more people even if we don't have anywhere to put them? The answer is that the future of California looks very different than the past; therefore, the future of planning and development in California must look very different as well. First of all, most of our population growth is inevitable, not optional. That is, it will come as a result of natural increase – births over deaths – rather than migration from other states or immigration from other countries. This is a huge change from the past, and it is the first time we have ever faced the population question from this perspective. In the economic downturn of the late 1970s, the state's population growth almost came to halt – thanks in large part to the fact that middle-class folks from other states stopped moving to California, and middle-class folks who lived here started moving to other states. By contrast, during the recession of the mid '90s, our state's population growth never dropped below around 400,000 per year. A second, related point is that a great deal of this population growth is occurring in existing urban areas – especially older suburbs – and that is a phenomenon we in California have never faced before either. Since 1980, for example, metro Los Angeles has added about 5 million people. Surprisingly, however, 2 million of them have been added in areas that would have been regarded as "built out" in 1980 – the City of Los Angeles, the San Gabriel Valley, southeastern Los Angeles County, and northern Orange County. As the map below suggests, during the 1990s the mature communities of northern Orange County added more people than the developing communities of southern Orange County. And partly for that reason, Orange County added more people during the 1990s than did Riverside County, which is often seen as Southern California's fastest growing area. (This map was prepared by our sister organization, Solimar Research Group, for "Sprawl Hits The Wall," a report released last month by the Southern California Studies Center at the University of Southern California. The report is available on our website, www.cp-dr.com) All this means that the future of accommodating California's growth is not about building new suburbs, but, rather, about rendering older ones as better places to live even as they become more dense. Urban activists in California often resist density as damaging to their quality of life, and understandably so. But the fact of the matter is that in our older suburbs the human density is rising considerably even as the building density does not change much. Local residents throughout California may oppose the construction of more apartment buildings or condominiums. But does such opposition make sense when, in those same communities, two or even three families are living in one single-family home?

Electricity has been the dominant topic at the state Capitol for months and threatens to overshadow every other issue facing lawmakers in 2001. Still, legislators introduced hundreds of bills related to land use prior to the late-February deadline, including approximately 150 housing bills. "I'd say there are easily twice as many bills as we normally see," said Mike Herald, executive director of Housing California, a statewide coalition of advocacy groups. "I think it's a reflection of what members are hearing in their districts." Those bills range from measures that would put teeth in the housing element law, to housing subsidies for firefighters and police in certain cities, to proposals that would give local government a larger share of property taxes from housing developments, to incentives for infill and transit-oriented projects. "It's not just a Silicon Valley problem," Sen. Joe Dunn (D-Santa Ana) said of affordable housing. "It's really starting to touch on every portion of the state." Other land use bills would tinker with the California Environmental Quality Act, lower the hurdle for a redevelopment agency to prove "blight," require a finding of adequate water supplies for projects of at least 200 housing units, and require the Governor's Office of Planning and Research to prepare a "State Comprehensive Plan." (See accompanying list of bills.) As of late March, most legislative committees were just getting started, and a large number of bills remained in spot form. Despite the plethora of bills, a number of Capitol insiders and lobbyists said they expect to see few proposals that would create new programs for housing or anything else get approved this year because the energy situation has been costing the state an unbudgeted $45 million a day, and because the quick economic slowdown could hurt revenues. State Senate President Pro Tempore John Burton (D-San Francisco) has vowed to match last year's housing funding of $570 million, but even housing champions such as Dunn, the chairman of the Senate Housing and Community Development Committee, have doubts. "If we go down the path we've been on , there won't be any significant state funds available for housing," Dunn said. But the uncertain situation has not deterred interest groups and lawmakers from pursuing their agendas. The California Chapter of the American Planning Association is sponsoring legislation based on a report of the group's state plan task force, said CCAPA lobbyist Sande George. The primary components call for preparation of a state plan (AB 857, Wiggins), making infrastructure funding dependent on consistency with the state plan (SB 294, Sher), and requiring local land use elements to address issues of environmental and social justice (AB 1553, Keeley). The group may also use AB 858 (Wiggins) as a vehicle for further general plan reform. George said CCAPA is working with the League of California Cities and the California State Association of Counties on the bill package. "I think the biggest concern that legislators are hearing from their constituents is that everybody is sprawling too much," George said. "That's become a buzz word in the last few years." Solving the affordable housing shortage will require money, and there is talk of a housing bond, George said. However, if the state issues $10 billion worth of bonds to fund long-term electricity purchases, as is proposed, the state may have little bonding capacity remaining for other things, she said. The planners association appears to have a solid ally in Assemblywoman Patricia Wiggins (D-Santa Rosa), chairwoman of the Assembly Local Government Committee and head of the Smart Growth Caucus. She has focused on the lack of fiscal incentives for local governments to approve housing. Because so many state lawmakers have moved up from city councils and boards of supervisors during recent years, they understand that housing is a drain on local government finances, she said. "Many of us are looking at property tax incentives," Wiggins said. "We're probably not going to get a wholesale return of the property tax that was shifted away by the state, but we can do it in pieces." Sen. Dunn agreed that most lawmakers agree there is a problem with the way local government is financed. But, he said, it is very unlikely that the Davis administration will accept any measure that shifts funds from the state to local government. On a different topic, Wiggins said she intends to pursue legislation that provides for geographic information system mapping of the state. "We're very primitive in our planning in California considering the technology we have," she said. Wiggins said lawmakers are returning to their own agendas and away from electricity. However, she said there could be an effort to require an energy element as part of local general plans. Jerry Meral, executive director of the Planning and Conservation League, said he has detected "member burnout on energy" and he believes lawmakers will move on to other issues. "I actually think if it were not for energy, transportation would be the biggest issue this year," Meral said. Transportation is toward the top of the PCL agenda this year, as the group is sponsoring AB 321 and ACA 2 (Vargas), both of which would allocate the state's share of sales tax on vehicles for transportation programs. Meral's organization would like to see the money focused on transit in urban areas. The PCL also is quite interested in Wiggins' AB 52, a proposed bond that would raise money for farmland protection and infill housing. Wiggins refers to the proposal as "pave an acre, save an acre." Meral said a similar program has been successful in Vermont. With the Democrat majority on both houses at nearly 2-1, the PCL finds that it has quite a few friends these days and does not spend a great deal of time fighting bills. That means that business and development groups are struggling to find allies. Thus, development interests are continuing to work with housing and labor groups in the Job-Center Housing Coalition that become a major player during the last legislative session. The group is back with a 10-bill package. Like last session, the package includes measures to limit builders' construction defect liability and to make brownfield cleanup easier. The Job-Center Housing Coalition package also includes Sen. Dunn's SB 910, a housing element law crackdown. The measure states that if HCD finds a local housing element to be out of compliance, a court should presume the element is invalid. The proposal requires courts to impose fees of up to $1,000 per unit of the jurisdiction's fair-share housing requirement, and — maybe most importantly — cuts off state funds for cities and counties that do not comply with housing element law. Dunn has not yet defined the revenue stream he will go after but said education and transportation dollars are safe. Instead, he will try to stem the flow of more discretionary funding. "That is gonna be a shot at the heart of the jurisdictions that steadfastly have refused to comply with the housing element law," Dunn said. His office estimates that about 30% of cities and counties have inadequate housing elements. Housing California's Herald said SB 910 is important because some local governments will not take the first step of zoning enough sites for affordable units. The issue is one that housing advocates and the development community can agree upon, whereas the construction defect liability concerns belong mostly to builders, Herald said. Contacts: State Senator Joe Dunn, (916) 445-5831. Assemblywoman Patricia Wiggins, (916) 319-2007. Sande George, California Chapter of the American Planning Association, (916) 443-5301. Jerry Meral, Planning and Conservation League, (916) 444-8726. Mike Herald, Housing California, (916) 447-0503. California Housing Law Project: www.housingadvocates.org Job-Center Housing Coalition: www.jobcenterhousing.com

In what most observers called a major victory for environmentalists and federal regulatory agencies, the U.S. Supreme Court upheld the Environmental Protection Agency's practice of not considering costs when setting air quality standards. The American Trucking Associations and the U.S. Chamber of Commerce led the fight against the EPA, saying the agency should conduct cost-benefit analyses when setting standards. But a unanimous Supreme Court disagreed, with conservative Justice Antonin Scalia writing for the court. Scalia wrote that the Clean Air Act "unambiguously bars cost considerations" from the process of setting air quality standards intended to protect the public health. In a concurring opinion, Justice Stephen Breyer found the statutory language less definitive, but he reached the same conclusion. The February 27 decision, however, was not a complete defeat for business interests. The court did invalidate the EPA's ozone standards, finding that the agency's timing for implementation of the standards was unreasonable. Those standards, adopted in 1997, increased the number of metropolitan areas in violation of the Clean Air Act from 75 to about 400, including much of California. The high court sent the ozone standards back to the U.S. Court of Appeals for the District of Columbia for further review. The appellate court is expected to overturn the standards outright. The case is Whitman v. American Trucking Ass'ns Inc., No. 99-1257, 2001 Daily Journal D.A.R. 1981. The U.S. Supreme Court has agreed to review an adult business case from Los Angeles. In Alameda Books, Inc. v. City of Los Angeles, No. 98-56200, the Ninth Circuit ruled that a city ordinance prohibiting an adult bookstore from also providing adult video viewing booths was unconstitutional. (See CP&DR Legal Digest, September 2000). The Ninth Circuit ruled that the city failed to prove the law prohibiting two adult businesses on the same site advanced a significant government interest because the city's study of "secondary effects" of dual adult operations was inapplicable. The Supreme Court agreed to review the case during its next term, with oral arguments likely to be conducted in October. The case is No. 00-799. An en-banc panel of the U.S. Ninth Circuit Court of Appeals will hear a case regarding regulation of private land inside an Indian reservation. The majority of Ninth Circuit judges agreed to hear Roberta Bugenig v. Hoopa Valley Tribe, No. 99-15654 (see CP&DR Legal Digest, November 2000). Last year, a three-judge panel of the Ninth Circuit ruled that an Indian tribe has the authority to regulate land owned by nonmembers only when given specific Congressional approval or when the land use directly affects the tribe's political integrity, economic security, or health and welfare. The Hoopa Valley Tribe does not have Congressional approval, nor did Bugenig's proposed land use directly harm the Tribe, the court ruled. Bugenig owns 40 acres inside the Hoopa Valley Indian Reservation in Humboldt County. She sought permission to selectively log three acres of her property, but the tribe refused to grant permission because of impacts on a ceremonial site. When Bugenig went ahead anyway, the tribe sued her in Tribal Court and won. Bugenig then filed suit in federal court, losing at the trial court level but winning on appeal. The decision to hear the case en-banc means the earlier appellate decision cannot be cited as precedent. The Ninth Circuit has withdrawn a decision in a rent control case from Southern California. In Montclair Parkowners Association v. City of Montclair, No. 99-55083, a three-judge panel of the Ninth Circuit cleared the way for the landlords to challenge the city's rent control ordinance as an uncompensated taking. (See CP&DR Legal Digest, June 2000). A federal district court had dismissed the lawsuit because a similar one was making its way through state court. In the state litigation, The Fourth District Court of Appeal ultimately ruled that the city's ordinance was not a taking. Montclair Parkowners Association v. City of Montclair, 76 Cal.App.4th 784 (see CP&DR Legal Digest, January 2000). The Ninth Circuit panel concluded that the federal district court had ruled properly. But because the state litigation concluded in the time between the district court's decision and the appellate panel's ruling, the federal case could proceed. However, that three-judge panel's decision was withdrawn in February pending resolution of a different case, Green v. City of Tucson, No. 99-15625, in which a different Ninth Circuit panel reached a different conclusion regarding concurrent state and federal lawsuits. The Ninth Circuit is hearing Green en-banc.

The average person thinks of government as having a monolithic character. If she does not know better, she believes that different government agencies are merely the Vishnu-like arms of one great, unified body. But the opposite is true. Government is, in fact, a cluster of little bureaucracies. Each governmental agency, and each department inside that agency, and each division that department, has its own agenda. Call it the Will to Power. Call it the Imp of the Perverse. Whatever you call it, the result is the same: Different governmental entities often do not cooperate. That is why the notion of joint use is exciting. Joint use is a common-sense idea that two or more separate public agencies can save money and, in the lingo of bureaucrats, "achieve efficiencies" if they combine their money and build things that both need, such as libraries, swimming pools, and public safety facilities. But how do you divide costs, maintenance, responsibilities and security issues among two very different entities? The downtown San Jose library is one project that stretches across the Balkans of non-cooperation, joining together the City of San Jose Redevelopment Agency and San Jose State University. What is most interesting about the San Jose library, which is under construction with completion due in early 2003, is that the facilities are largely shared — rather than creating, what is in effect, two separate libraries under one roof. "We decided against the duplex model," says San Jose City Librarian Jane Light. The decision to combine resources, especially books, was a philosophical one. "It's ‘in for a penny, in for a pound,'" she says of the joint-use approach. "You are not going to get the benefits if you are not going to do it all the way." Another benefit is that the library becomes a crucial link between the university and downtown San Jose. On May 21, 1998, the San Jose City Council and Redevelopment Agency Board (which are alter egos) approved a Memorandum of Understanding with San Jose State University. The MOU is a voluminous document that sets out the rules for the way two very different entities will share a 575,000-square-foot library with a collection of more than 1 million volumes. This document does far more than decide who pays how much for maintenance and furniture: The MOU effectively creates a new type of library. Under this agreement, non-students will be able to check out books from the university collection, which is larger and more in-depth than that of the public library. (As is traditional, university instructors have the right to reserve books related to course work.) The city and the university will share a database, enabling patrons in branch libraries to request books from the main library, or at least put a hold on them. The MOU sets out the obligations of both parties. The university and the city jointly own and use the building as tenants-in-common. Of the total square footage of the building, roughly two-thirds is allocated to the university and the remaining one-third to the city (although this seems a little bit symbolic to me, because much of the library and its collections are open to all). Again, the university and the redevelopment agency jointly own all the furniture, splitting the replacement costs 59-41, with the university picking up the biggest part. The two entities run the library together. Significantly, no staff members of either the city or university library system are to be laid off, ensuring the facility has an unusually large staff to assist library users. The 59-41 split also applies for the library's repair program. To cover facility maintenance costs, the city is obliged to pay the university $6.45 per square foot, or about $1.025 million annually. For sheer economic savings, the joint-use library is a winner. Under the MOU, the city owns 158,990 square feet of the library. Assuming a construction cost of $300 per square foot, which Light says is conservative, that portion alone costs about $47.7 million, while the university's portion costs about $94.7 million. Total construction costs are pegged at $177.5 million. Beyond dollar savings is the considerable boon that the library will have on the urban design of downtown San Jose. The library may become a sort of portal between the city and the school. This portal becomes all the more important when one realizes that contact between the downtown and the campus has been surprisingly rare. Although the university is located directly next to the downtown area, much of the campus is fenced off, and there are only a few pedestrian connections to downtown. (The front doors of nearly all the university buildings face inward toward the quadrangle, turning their backs on downtown. "I have met many people in town who have never set foot on the university campus, and students who have never left the campus," Light says. The location of the library at South Fourth and East San Fernando streets is right at the meeting point of the campus and the city, which connect through a pedestrian walkway. Light says that location was a crucial decision: By straddling the boundary between city and university, the library remains convenient to the campus while providing plentiful pedestrian activity in a downtown area starved for people on foot. The library site is a few blocks from where the city plans to build a new Civic Center/City Hall designed by Getty Center architect Richard Meier. It's a remarkable, if unlikely, achievement: A university research library becomes the driver of pedestrian activity in a formative downtown area. Obviously, problems are possible, such as in the area of labor relations. Librarians employed by different entities may chafe if they believe that their counterparts are receiving better salaries or benefits. The most potent difficulty, perhaps, is what happens if one of the parties runs into financial trouble: the city, being more vulnerable to the ups-and-down of tax collections, may be forced to renegotiate the agreement, cutting staff and hours. Those potential problems, however, seem piddly compared to the benefits. And while we should be cautious about leaping to embrace joint-use agreements across the board, Light draws a provocative analogy between the world of information and the world of public agencies. After all, she points out, both libraries and universities are tax-supported institutions. "In the information age, these kinds of jurisdictional boundaries are kind of laughable. If you are giving resources to people for life-long learning needs, we have to unlock these boundaries that we have helped to erect." Amen, sister, and pass the Readers' Guide to Periodical Literature.

Environmental review of a 109-unit subdivision on a 900-acre parcel in Carmel Valley was inadequate, the Sixth District Court of Appeal has ruled. The court concluded that in overturning the Monterey County Planning Commission's decision to deny the project, the Board of Supervisors used information about the project's water supply that had been introduced at the end of the environmental review process and had not been sufficiently analyzed or reviewed by the public. The environmental impact report for the proposed September Ranch project concluded that water demand for the originally proposed project (which called for 117 residences) estimated annual water usage of 61.15 acre-feet per year, or 16.15 acre-feet more than the estimated existing usage of 45 acre-feet per year. The 45 acre-feet figure was based on an estimate of 2 acre-feet apiece for 21 irrigated pastures, plus 3 acre-feet used by an existing equestrian center and residence. In the comment period, the county health department concluded that fewer acres had historically been irrigated as pastureland. However, the final EIR concluded that no historical data on water use existed and stuck with the 45 acre-foot estimate. A supplemental EIR dealt with other water issues, including the ranch's assertion that it held riparian rights. Following the release of the supplemental EIR, the applicants announced they had purchased a 10-acre parcel (the "Berube" parcel) that contained the right to pump approximately 32 acre-feet of water per year from the property. In 1998, the county's Land Use Advisory Committee recommended denial, claiming the project did not comply with the county's water supply policies. The committee gave the project a failing score (44%) in the category of water/hydrology. Later that year, the Planning Commission rejected the project, in part because of the water issues, but did approve a smaller project of 56 units. The Planning Commission rejected the EIR's methodology of estimating water use and instead used the September Ranch's records for water use for 1997, which revealed that 26 acre-feet had been pumped for irrigation (plus 52 acre-feet for aquifer testing). The commission approved the smaller project based on this lower estimate of water usage. However, the applicants viewed the smaller project as economically infeasible. After the Planning Commission action, the environmental consultants submitted "supplemental information and errata," which relied on documented water use to conclude that average use for 1993 to 1999 was 30 acre-feet per year. But that usage had grown to 51 acre-feet per year in the period 1997 to 1999. Based on this information and the availability of water from the Berube property, the county staff recommended that the Board of Supervisors revise the project's failing water/hydrology score. In late 1998, the board voted 3-2 to approve the project at 109 units, selecting 51 acre-feet of water per year as the base year figure. Environmentalists sued and Monterey County Superior Court Judge Richard Silver ruled against the county, concluding, among other things, that the board's findings about baseline water supply were not supported by substantial evidence and that the EIR should have considered the environmental effects of using an offsite water supply. The September Ranch developers appeal revolved around the question of what the county should have used as its baseline water figure. The developers argued that this question is "a matter of policy" to be resolved by the county — especially because the record contained several different estimates and records, each of which could have been used as a baseline. Environmentalists countered that the baseline environmental conditions should be determined by the EIR itself. The appellate court found some merit in both positions but ultimately ruled in favor of the environmentalists. First, the court questioned whether the property had actually been used as irrigated pastureland — the assumption that underlay the EIR's estimate of water usage — noting that there was no objective evidence but merely the assertion of the applicant that this was so. Second, the court noted that the water pumping numbers grew dramatically during the years after the application was failed. "By inviting the board to pick from an array of numbers to determine an important aspect of the baseline environmental setting, the EIR failed to fulfill its function of providing information and analysis of environmental impacts," the court wrote. Finally, the court said, the county erred in basing its decision on information that emerged late in the environmental review process. The court noted that the project was pending for 3 1/2 years, a period during which the applicants controlled the pumping rate. "The better approach … would be to follow the general rule expressed in the Guidelines and cases that baseline conditions are normally to be determined at the time environmental review is begun," the court ruled. "An EIR in which a baseline water use determination is elastic and can be modified by the Board at the end of the environmental review process without benefit of analysis or public participation" is a violation of CEQA. The Cases: Save Our Peninsula Committee v. Monterey County , No. H020900, and Sierra Club v. County of Monterey , No. H020933. The Lawyers: For September Ranch Partners:Stephen Kostka, McCutchen, Doyle, Brown & Enerson, (925) 937-8000. For Save Our Peninsula Committee: Alexander Henson, (831) 626-8686. For Sierra Club: Frances Farina, (831) 625-5544.

In most parts of the world, islands are bits of dry land that stick out of the water. The term has quite a different meaning in the Sacramento-San Joaquin Delta, a place where human ingenuity has managed to stand geography on its head. Delta "islands" are dry land, all right, reclaimed by dredge and steam shovel from the network of river channels, sloughs and marsh that once covered 1,000 square miles at the confluence of California's two principal waterways. The Delta islands, however, are lower than the water around them (some are below sea level) and remain dry only because they are protected by a 1,100-mile network of levees. This peculiar characteristic — islands that actually are dry holes in a liquid landscape — has spawned a controversial plan to supplement the state's water supply by transforming corn and wheat fields into shallow reservoirs. Instead of keeping the rivers out, the levees surrounding two of the largest Delta islands would be reinforced and used to keep fresh water in, capturing it during times of high river flow and releasing it — for a price — in the dry season. Delta Wetlands, a private company based in Lafayette, won approval for its plan in February from the State Water Resources Control Board (SWRCB). Although the project has undergone years of review, it still requires federal and local permits. It also faces opposition from local farming and environmental groups, as well as practical hurdles related to the cost and quality of the water it would provide. Still, it is an intriguing new twist in California's unceasing campaign to capture, store and redistribute its most precious resource. Unlike most of the state's water-storage projects, this one would not dam a river or destroy wildlife habitat. Nor would it be subsidized with public funds. On the contrary, it represents an effort to transform water into a privately marketed commodity like tomatoes or asparagus. And unlike most previous water marketing proposals, this one appears likely to become a reality thanks to the Delta's pivotal role in the state's gargantuan water system and the unusual history of Delta agriculture. The Delta region is a triangle with its apex at the eastern edge of Suisun Bay. It is about 50 miles across its base, a line passing through Stockton and reaching roughly from Tracy in the south to Elk Grove in the north. Efforts to farm the rich soil laid down in the Delta by the Sacramento and San Joaquin rivers began during the Gold Rush, but it was not until the early 20th century that powerful equipment and ample investment capital transformed the region. Dredges cut straight shipping channels through the Delta's maze of tule-clogged sloughs. Giant shovels piled the spoils into levees encircling large tracts of marsh, and the water inside was pumped out. Thus drained, the rich peat soil could be plowed and planted. Delta soil, however, has a peculiar characteristic: Exposed to the air, the formerly submerged peat oxidizes and blows away as fine dust. Heavy farm equipment compacts it. Since they were created, the islands have subsided by as much as 1.5 inches a year. Some are now 25 feet below sea level. Yet as long as the levees are maintained — an increasingly expensive and difficult task as the ground sinks — the farms inside remain productive. The annual value of Delta crops exceeds $500 million.The region's most valuable product, however, is not food but water. As the meeting point of the state's two largest waterways, as well as the smaller Mokelumne, Cosumnes and Calaveras rivers, the Delta receives 47 percent of the state's freshwater runoff, including springtime snowmelt stored behind foothill dams that is released during the summer. That made the Delta a practical place to install the huge pumping plants that drive the State Water Project (SWP) and the Central Valley Project (CVP), which together supply water to 20 million people and most of California's irrigated cropland. Delta Wetlands hopes to take profitable advantage of this setting. With investment money from Kemper and Lumbermen's Mutual insurance companies, it has purchased four parcels totaling 20,000 acres. Webb Tract and Bacon Island, together comprising 11,000 acres, would be used as reservoirs. Nearby Holland Tract and Bouldin Island would be converted into wildlife habitat. In the dry season, the company would sell water to thirsty downstream users, pumping water out of the island reservoirs into existing Delta channels for diversion by the SWP and CVP. Delta Wetlands predicts it will produce 170,000 acre-feet in average years, and 800,000 acre-feet in wet years. Although it seems a simple proposal, the Delta Wetlands project is being pursued in a fiendishly complex legal, political, economic and scientific context that renders its prospects questionable. In the Delta, urban and agricultural water demands compete with each other and wreak havoc on fish and wildlife by disrupting the aquatic ecosystem. Control of the region's future — and therefore influence over the state's water supply — is the prize in a fierce tug of war between city dwellers and farmers, rural counties and metropolitan areas, environmentalists and business groups. Since 1994, an ambitious state-federal partnership known as the Cal-Fed Bay-Delta Program has been attempting to negotiate a truce. Last summer, Cal-Fed unveiled its preferred alternative for the first phase of a 30-year program to restore the Delta's ecological health, improve the quality of water diverted by CVP and SWP pumps, and assure a more reliable supply for everyone. Cal-Fed has long envisioned something like the Delta Wetlands proposal to supplement other types of underground and surface storage. The program unveiled last summer calls for 250,000 acre-feet of "in-Delta storage" and proposes either buying the Delta Wetlands project or negotiating with other landowners to construct something similar. Nevertheless, the project faces skepticism. San Joaquin County officials are unhappy that it will take farmland out of production. Deltakeeper, a Stockton-based environmental group, has suggested that the project's water — having spent weeks or months in shallow reservoirs atop peat — will be so dirty, warm and low in oxygen that it will harm aquatic life. The Central Delta Water Agency's attorney has said it plans to appeal the SWRCB ruling, questioning a private firm's legal right to profit from water sales. In the end, though, the real test of the Delta Wetlands project will be whether it can find a market for its product. The company has said it hopes to sell water for $200 to $300 an acre-foot. That's far too expensive for farmers. Urban users can afford it, but they are already unhappy about the poor quality of Delta water. It remains to be seen whether they will get thirsty enough to pay top dollar for more of the same. Contacts: Delta Wetlands: 916-646-9900 Deltakeeper: 209-464-5090 Central Delta Water Agency: 209-465-5883 Cal-Fed Bay-Delta Program: http://calfed.ca.gov/

Seasonal wetlands and the endangered species who inhabit them have forced planners for the proposed University of California, Merced, campus to choose a new location. Although many details remain undecided, planners have shifted the general site of the future campus — and an adjoining new community — a few miles closer to the Merced city limits. The new site eases some worries about vernal pools (small depressions in the earth that fill with rainwater) and the fairy shrimp, an endangered species that live in the pools. The original site of the proposed community was smack on top of what is probably the largest vernal pool resource remaining in the Central Valley. UC and county planners settled on a new campus location on the eastern edge of Lake Yosemite, with the planned community lying to the south. The main campus would be built on the Merced Hills Golf Course. The rest of the preferred site for future campus growth and the community is pasture, cropland and open grasslands. There are far fewer wetlands on the new site. The new site also helps answer questions about sprawl-inducement that came with the original site, which was several miles outside Merced's urban growth boundary. In 1995, UC regents choose a 10,400-acre site six miles northeast of Merced for the 10th UC campus. It is expected to accommodate 25,000 students when complete, and an adjoining community would be home to about 31,000 residents. Officials liked the site's relative proximity to an urban area, the availability of water, the potential to aid economically depressed Merced County, and a local landowners' promise of 2,000 acres of free property. They chose the location over finalist sites in Madera and Fresno counties. But as experts investigated further, they found the vernal pool resource to be even greater than originally suspected. Not only would the new town pave over 3,000 acres dotted with vernal pools, but the campus site on the edge of the foothills appeared hydrologically linked to the area's vernal pools. To receive a permit from the U.S. Army Corps of Engineers to fill the wetlands — a "§404 permit" — planners had prove they had picked the "least environmentally damaging, practical alternative." So they undertook a comprehensive alternatives analysis, which was released March 1. Planners reviewed 15 sites in Merced County, including the original location, the closed Castle Air Force Base in Atwater, and three "campus only" proposals. The biggest impact of developing the new site could be loss of farmland, said Woodie Tescher, director of urban planning & design for EIP Associates, a consultant to Merced County. But by placing the campus and adjoining community close to the current eastern edge of Merced, planners have a chance to address farmland conservation on a large scale. The original site left several miles of farmland between the campus community and Merced, all of which could have been lost to piecemeal development. "I think it's enormously better than the site they had originally proposed," said Steven Johnson, a scientist for The Nature Conservancy in California. "They went from a non-starter, from a regulatory standpoint, to a challenging but do-able site. … If you could construct a compromise on all fronts, where a little bit of wetlands is taken, and a little bit of farmland is taken, then this is it." The new site gives the City of Merced a larger role in campus and community planning, said George Hinds, a city councilman who has been involved in the process. The city intends to design strategies for permanently preserving agricultural land in the immediate area, he said. "I think from a planning standpoint and for the city, this is a lot better," Hinds said. But not everyone is happy. Some Hispanic organizations continue to lobby for an urban infill site, with downtown Fresno a leading candidate. The environmental group VernalPools.Org argues that the 1995 site-selection process and accompanying environmental impact report were deficient and is urging UC officials to start anew. "A Subsequent EIR is required to remedy these deficiencies before the university proceeds with a site specific EIR for the UC LRDP . The Subsequent EIR should consider a broad range of sites in the San Joaquin Valley for both environmental impacts and site feasibility issues," VernalPools.Org coordinator Carol Witham wrote to UC and county planners in a March 19 letter that sounds like the precursor to a lawsuit. However, UC's latest path was smoothed in late March, when the David and Lucille Packard Foundation announced it would donate $11 million for the purchase of 7,030 acres, which includes the proposed new site for the campus. The gift was important for several reasons. Originally the Virginia Smith Trust donated 2,000 acres for the campus, with the understanding that the adjoining community would get built on other trust land. Money derived from that development was to provide scholarships. But when planners proposed shifting the campus and community sites, it left the trust with little development potential. Under the new agreement, UC will purchase 7,030 acres from the trust for about $8 million, with the remaining $3 million going to the trust for a scholarship fund. About 5,800 of the 7,030 acres will be protected as habitat, according to UC planners. "Simply put, without the Packard grant, I'm not sure where we would have gone or what we would have done at this point," UC President Richard Atkinson said when the agreement was revealed. An enormous amount of work remains before the campus can open in 2004, as Gov. Gray Davis has promised. Planners are using the alternatives analysis during talks with federal agencies in preparation for filing permit applications later this year. University planners have started work on a Long Range Development Plan and an EIR, both of which they hope to circulate for public review this summer, said UC Merced spokesman James Grant. Meanwhile, county planners are preparing a community plan and EIR, which are scheduled to be released in July, said Tescher, who called the time frame very challenging. "We really are looking at developing a sustainability theme all throughout this document," Tescher said of the community plan. "We're looking at some fairly innovative housing strategies." Councilman Hinds said the new location causes his city to reconsider its general plan. "I think it's an opportunity to connect the campus and the community to the City of Merced much earlier," he said. Grant said UC officials intend to break ground in spring of 2002. Contacts: Woodie Tescher, EIP Associates, (310) 268-8132. Steven Johnson, The Nature Conservancy, (415) 281-0443. George Hinds, Merced City Council, (559) 385-6866. UC Merced website: www.ucmerced.edu/ VernalPools.org: www.vernalpools.org

Few land use measures appeared on ballots during the spring municipal elections conducted in some California cities and counties on March 6, although development was an issue in several city races. One of the more interesting City Council elections was in Calabasas, in western Los Angeles County. The 3,000-home Ahmanson Ranch development, which is not in Calabasas but is proposed for nearby unincorporated Ventura County, was a lightening rod issue. Voters reelected incumbents James Bozajian and Lesley Devine, both of who strongly oppose the project, and voters elected real estate attorney Michael Harrison, another outspoken foe of the development. The subdivision and commercial development, which would contribute traffic to Calabasas streets, has been mired in lawsuits and environmental reviews since Ventura County approved it eight years ago (see CP&DR January 1993, CP&DR Legal Digest December 1995, March 1994). In the City of Glendora, in the eastern San Gabriel Valley, two challengers who vowed to block development of the area's foothills ousted two incumbents. Mike Conway and Paul Marshall defeated Mayor Larry Glenn, who had been on the council for 13 years, and one-term incumbent Al Fishman. The March 6 election also saw the first school bond measures that could pass with only 55% of the vote, as allowed under Proposition 39. Both Fresno Unified and Clovis Unified school districts used the 55% provision. Fresno's received 67.2% of the vote, while Clovis' got 64.4% approval. Five other school bonds appeared on the March ballot under the two-thirds requirement, according to School Services of California. Bonds in Exeter (Tulare County), Liberty Union High (Contra Costa County) and Tamalpais Union High (Marin County) school districts were approved. Those in Banta Elementary (San Joaquin County) and Mojave Unified (Kern County) failed. Individual school districts can choose whether to seek approval for bonds based on 55% approval or two-thirds approval, explained Paul Holmes, a lobbyist for Coalition for Adequate School Housing. The constitutional amendment allowing 55% approval adds a number of conditions, such as a citizens' oversight committee, regular audits, a list of specific projects and limits on the level of taxes, he said. Kings County A half-cent sales tax increase for eight years to fund a new jail failed. Measure B: No: 51.9%. Los Angeles County City of Pasadena An advisory measure calling for a 6.2-mile extension of the 710 Freeway won the support of voters, while a competing measure calling for preparation of a citywide traffic management plan failed. The pro-freeway initiative came about last year, after the Pasadena City Council voted 5-3 to reverse the city's longstanding position of support for the freeway. The City Council backed the opposing measure that would have prevented the city from taking a position until it completed a transportation plan. The freeway extension, which would connect the 710 and 210 freeways, is vehemently opposed by the City of South Pasadena and historic preservationists because it would wipe out hundreds of old homes. Measure A (pro-freeway): Yes: 58.2%. Measure C (traffic management plan): No: 55.2%. City of South Gate Environmental justice advocates won a major victory when voters rejected an advisory measure for a proposed 500-megawatt power plant. Sunlaw Energy Co. proposed building the plant on the site of a truck stop. But opponents complained that South Gate, a mostly Latino suburb southeast of Los Angeles, would endanger residents' health. Mayor Raul Moriel and Vice Mayor Xochilt Ruvalcaba even went on a six-day hunger strike prior to the election to bring attention to the project's expected impacts. After the vote, Sunlaw asked the California Energy Commission to suspend its processing of the project application. Measure A: No: 66.5%. Orange County Aliso Viejo Residents of this south Orange County community of 45,000 people voted overwhelmingly to incorporate effective July 1. Development of an airport at the closed El Toro Marine Corps base was the key issue, and voters elected a slate of councilmembers strongly opposed to the project. Aliso Viejo is directly under the El Toro flight path. Aliso Viejo incorporation: Yes: 93%. City of Buena Park A special tax to fund a new police station and jail received the support of the majority of voters, but the assessment required two-thirds approval. The special tax would have cost homeowners about $30 a year and small businesses about $120 annually. Measure P: No: 44%. (2/3 required) San Bernardino County City of Chino Voters approved the rezoning of land from commercial to residential to permit development of 60 apartments for seniors. A 1988 initiative requires voter approval for such zone changes. Measure U: Yes: 85.3%. San Mateo County City of Belmont Voters approved an $8.65 million bond to replace the city's cramped 6,000-square-foot library. The new facility, to be built on the same site, will be four times as large. The bond provides matching funds for a state grant. The bond will cost homeowners about $70 annually for 30 years, and commercial property owners about 8 cents per square foot annually. Measure C: Yes 78.1%. (2/3 required)

A San Diego Superior Court judge properly removed from the ballot a 1999 initiative seeking to kill implementation of the deal between the City of San Diego and the Padres baseball team for a new stadium. The Fourth District Court of Appeal, Division 1, ruled that the initiative interfered with administrative actions of the city government, rather than legislative actions. Administrative actions may not be placed before the voters. In making the decision, the court said its ruling rendered moot a motion by the initiative's proponents to strike the lawsuit by the city and the Padres as a SLAPP suit, or "strategic lawsuit against public participation." The deal between the city and the Padres began after the city's voters approved Proposition C in 1998, which authorized the city to sign a memorandum of understanding with the Padres to build a stadium and redevelop 26 blocks in downtown San Diego. The MOU laid out the conditions that were required for the project to continue, including assurances that the Padres would participate in the development of a hotel and that the city redevelopment agency could obtain acceptable financing terms for its $225 million investment in the new baseball park. Subsequently, opponents of the ballpark deal circulated an initiative seeking to terminate the MOU because the conditions required under the MOU had not been met. Among other things, the initiative required the city to carry out the contract's terms "by such administrative and non-legislative acts as may be necessary and appropriate to carry out the purpose and intention of Proposition C and the MOU." The city and the Padres were granted summary judgment by a Superior Court judge before the election. The initiative proponents then appealed the lower court's decision. The proponents argued that the initiative was legislative because, as the court said, "it decides whether the project should proceed, not how it proceeds." The proponents also argued that the manner of financing for the project is a legislative decision. But the Fourth District disagreed. While acknowledging that the initiative sought to make a policy statement that would bind the city, the court concluded, "The proposed initiative does not seek to change this policy by its plain language, but rather to change the substance of the implementing decisions that were created by Prop. C. In other words, the proposed initiative seeks to substitute the proponents' judgment regarding compliance with the applicable conditions and the feasibility of financing, in place of that process created by Prop. C and the MOU, which confided such implementing decision to City administration." This, the court said, is an unacceptable attempt to interfere with an administrative decision. The initiative proponents also filed a motion to strike the city's and the Padres' causes of action based under Code of Civil Procedure Section 425.16, the so-called anti-SLAPP law. In so doing, the proponents argued that the lawsuit that knocked the initiative off the ballot was designed to interfere with the initiative proponents' free speech activities. However, a court cannot grant an anti-SLAPP motion to strike "unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." The appellate court concluded that once the city and the Padres had been granted summary judgment as a matter of law, "there was nothing left for to decide with regard to the pending SLAPP motions …" Thus, the SLAPP motions were moot. The Case: City of San Diego v. Dunkl, No. D035559, and Padres v. Dunkl, No. D035585, 01 C.D.O.S. 601, 2001 Daily Journal D.A.R. 757, issued January 22, 2001. The Lawyers: For Dunkl and initiative proponents: J. Bruce Henderson and Kent C. Wilson, (619) 236-6616. For City of San Diego: Charles A. Bird, Luce, Forward, Hamilton & Scripps, (619) 699-2406. For San Diego Padres, Mark C. Zebrowski, Gray Cary Ware & Freidenrich, (619) 699-2693.