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An environmental group that sued a company over alleged violations of the Clean Air Act has been denied attorneys' fees by the Ninth Circuit U.S. Court of Appeals. The unanimous three-judge panel — which included retired U.S. Supreme Court Justice Byron White, sitting by assignment — said that in cases where the government eventually does take action, such as this one, a private party is not entitled to receive its court costs. In November 1995, The Montana Coalition for Health, Environmental and Economic Rights (CHEER) filed a notice of its intent to sue Stone Container Corporation. CHEER alleged Stone violated the Clean Air Act, Clean Water Act and Emergency Planning and Community Right to Know Act. Sixty days later, the Environmental Protection Agency filed a suit against Stone alleging three violations of the Clean Air Act. The EPA's suit was followed one week later by CHEER's suit against Stone alleging 21 violations of the Clean Air Act, including the three violations listed in the EPA's suit. Over the next two years, Stone, CHEER and the federal government negotiated separate consent decrees. The CHEER-Stone consent decree settled all of the environmental organization's claims, and the group agreed to drop its three duplicative claims. Furthermore, Stone agreed to pay CHEER $129,000 in attorneys' fees. After this consent decree was finalized, CHEER filed an unopposed motion to intervene in the EPA lawsuit. This suit also ended in a consent decree. However, Stone opposed CHEER's request for attorneys' fees, and a federal district court sided with Stone. The court ruled that §304(b)(1)(B) of the Clean Air Act precluded CHEER's duplicative claims because the federal government was already prosecuting Stone on the same grounds. On appeal, CHEER cited United States (EPA) v. Environmental Waste Control, Inc., 710 F.Supp. 1172 (N.D. Ind. 1989), known as EWC I. In that instance, both the federal government and a citizen group sued EWC for violating the Resource Conservation and Recovery Act. The citizen group, much like CHEER, presented more claims and sought more relief than did the EPA. The court in EWC I awarded attorneys' fees to the environmentalists because, "Congress intended for citizen groups intervening as a matter of right to be able to recover their costs and attorney fees." But EWC I "is neither persuasive nor controlling," Circuit Judge M. Margaret McKeown wrote. "To the extent the court ignored the language of the statute and veered off into an analysis of congressional intent, we disagree. The plain language of the CAA , including the absence of a fee provision for intervenors, controls our decision and trumps the congressional intent analysis in EWC I." CHEER, noted McKeown, had already received attorneys' fees for prosecuting its nonduplicative claims. McKeown continued, "As the Supreme Court has emphasized, Congress's intent was to encourage citizen suits only ‘if the Federal, State and local agencies fail to exercise their enforcement responsibility,' Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Fund, Inc., 484 U.S. 49, 60 (1987). Where the government does take action, as the EPA did in this case, the need to provide incentives for private party participation diminishes." "Although we realize that awarding attorneys' fees to intervenor-plaintiffs could operate as an additional incentive designed to further citizen participation, this is a decision left to Congress, not the courts," McKeown concluded. The Case: United States of America v. Stone Container Corporation v. Montana Coalition for Health, Environmental and Economic Rights, Inc., No. 98-36175, 99 C.D.O.S. 9145, filed November 19, 1999. The Lawyers: For CHEER: Charles Tebbutt, Western Environmental Law Center, (541) 485-2471. For Stone: Russell Frye, Chadbourne & Parke, (202) 974-5600.

Less than a week after voters decided nearly 20 growth-related ballot measures, an attorney for a developer who lost an election last January made its case to the Second District Court of Appeal. The lawyer for Costa Mesa-based Messenger Development argued that a referendum over a 3,200-home development in the City of Moorpark was illegal. During a January special election, Moorpark voters overturned their City Council's approval of Hidden Creek Ranch, a subdivision proposed inside Moorpark's sphere of influence. Voters also approved an initiative that requires an election before development may occur on land zoned for agriculture or open space. The latter was part of the Save Open-space and Agricultural Resources (SOAR) campaign that has swept across Ventura County. The special election appeared to deal two fatal blows to Messenger, which had worked nearly a decade on the Hidden Creek Ranch project. But Messenger went to court, challenging both the referendum that overturned approval of the project and the Moorpark version of SOAR. The builder lost the challenge of the referendum at the trial court level, but the case was argued before the Second District Court of Appeal on November 8. (The lawsuit over the SOAR initiative is on hold pending outcome of the referendum lawsuit.) One of Messenger's primary arguments is that voters did not receive complete information. The referendum was over the development agreement between the city and Messenger, but other legislation, including a general plan amendment, was contingent upon the development agreement, Messenger argued. Voters could not decide on the development agreement without seeing the entire package, according to the developer. Messenger further contended that the form of the petition that qualified the referendum for the ballot was improper because the petition shrunk an 83-page development agreement down to 19 pages of microscopic type that was nearly illegible. Besides the technical quarrels, the developer also argued that the referendum severely hampered Moorpark's ability to provide necessary affordable housing, and that the vote left Messenger with zoning that conflicts with the general plan. Attorneys for SOAR, who are defending the city, argued that the voters have spoken on two perfectly legal ballot measures. They contend that Messenger was only complaining about having to play by new rules that directly insert the electorate into land-use decisions. A decision in the case is due by early February. The Case: Hidden Creek Ranch v. City of Moorpark, No. B127901. The Lawyers: For Hidden Creek Ranch, Wendy Lascher, Lascher & Lascher, (805) 648-3228. For Moorpark: Richard Francis, (805) 486-5898.

In an off-year election that surprised many observers, slow-growth advocates lost battles in some surprising places, but they also claimed victories in some pro-growth cities. Most importantly, voters in the East Bay cities of San Ramon, Pleasanton and Livermore rejected the Citizens Alliance for Public Planning initiatives that would have put on future ballots all but the tiniest of developments. And, in the first test of a Ventura County SOAR growth restriction, the electorate approved rezoning of farmland to allow construction of a church and recreational facilities. However, growth-control measures of various stripes received voter approval in the Southern California towns of Apple Valley, Agoura Hills and Chino Hills, and in the Bay Area city of Half Moon Bay. Plus, voters rejected a development-backed urban limit line initiative in Fairfield. Overall, the election season was fairly even, with slow-growth forces winning ten ballot measures and the pro-development side victorious eight times. In the past, slow-growth forces have generally recorded higher winning percentages during off-year elections. In November of 1997, voters approved nine of 12 slow-growth measures. Most eyes this time were on the CAPP initiatives, which could have set a new standard for growth-control. The measures would have required votes for developments as small as 10 units in San Ramon and Pleasanton, and as small as 20 units in Livermore. Analysts with very different perspectives said the anti-growth sentiment that spawned CAPP remains, but apparently the CAPP medicine was too strong. "The mechanism was too extreme," said John Landis, an urban planning professor at University of California, Berkeley. "But the anger is still there over what is seen as uncontrolled growth in the East Bay." Landis said people rejected the CAPP measures because they did not want to have to return to the voting booth again and again to decide every development. Livermore, where CAPP failed by the largest margin (62% to 38%), has done a pretty good job of managing growth with population and building ceilings and by relying increasingly on specific plans, he said. The vote was closest in the southern Contra Costa County city of San Ramon (53% to 47%) because of concern over development in the neighboring Tassajara Valley, Landis said. Developers in the past have proposed building up to 5,000 homes in the Tassajara Valley, most of which lies outside Contra Costa County's urban growth boundary. Ronald Zumbrun, a Sacramento property rights attorney who contends many growth-control initiatives are unconstitutional, agreed with Landis that the CAPP initiatives failed because they went too far. The Save Open Space and Agricultural Resources Initiatives that have proven so popular to Ventura County voters in recent years offered the appeal of protecting farms and scenic vistas, he noted. But the CAPP measures only promised to give voters many more future elections. "I was predicting ahead of time that those initiatives might very well not pass. And the reason I felt that way was because they were a cap on housing and they did not have the support of some of the no-growth groups," Zumbrun said. Notably, the Greenbelt Alliance, which has a high profile in the East Bay, took no position on the CAPP initiatives. Evelyn Stivers, Greenbelt Alliance's East Bay field representative, said the group did not endorse CAPP because the measures discouraged infill development and could harm affordable housing goals. Greenbelt Alliance did not oppose the CAPP initiatives because the group did not want to take a stance against a grass roots effort, she explained. The CAPP campaign caused a split among some natural allies in the East Bay and "there have been a lot of hurt feelings," Stivers said. Various organizations are now trying to find common ground, such as opposition to development in North Livermore, she said. It's too early to talk about future ballot initiatives, said Stivers, but she noted a CAPP initiative has qualified for the March 2000 ballot in Danville. Landis and others believe the slow-growth movement will soon return to the East Bay ballot box. Landis predicted growth boundaries or possibly development ceilings will be the tools next time around. The Sierra Club has indicated it will move forward with a proposed growth boundary initiative in Alameda County. Twenty miles east of Livermore in the City of Tracy, activists vowed to continue pressing ahead with a proposed initiative to limit the number of homes built each year to 750, half of the currently allowed maximum. East Bay decision-makers, said Landis, need to take notice of growth's mounting impacts. Many East Bay developments entitled during the recession of the early 1990s sat idle until now, when the massive economic expansion in Silicon Valley — where nine new jobs are created for every one new housing unit built — is spurring construction. This situation creates a disconnection between project approval and on-the-ground effects that anger existing residents. Some people portrayed the CAPP measures as the offspring of the SOAR initiatives that are in place in six Ventura County cities and in unincorporated Ventura County. In development's first test under SOAR — which requires that voters approve rezoning of farmland and open space — City of Ventura voters approved rezoning 25 acres from agriculture to residential. The First Assembly of God forced the election so it could build a church and athletic fields. During the campaign, some SOAR leaders opposed the project, in part because the church, if it won the election, could then build houses or sell its property to developers. As SOAR is designed, the election on rezoning comes before city officials consider an actual project. However, church leaders said they had no intention of building houses and even filed a covenant preventing housing construction without a subsequent election. Nearly 55% of voters in Ventura, the first city to approve SOAR in 1995, backed the church. San Bernardino County To a casual observer, the election was downright strange in pro-growth San Bernardino County. Measures that restrict housing densities were approved in Apple Valley and Chino Hills — two places not known for growth controls. Meanwhile, voters in Redlands, the only slow-growth city in the area, rejected two growth-restricting measures. The Apple Valley election was the most contentious and produced amazingly one-sided results. Voters approved an initiative (Measure N) that locks in the residential zoning district's half-acre minimum lot size for 20 years, and requires the city to place any rezoning or general plan amendment on the ballot. Voters rejected a competing measure, put on the ballot by the City Council, that would have allowed the council to alter zoning and shrink lot sizes. Voters also recalled the three city council members who supported reducing minimum parcel sizes. All votes were decided by ratios of at least 80 to 20. "I don't know that any other issue could have galvanized our community like this one has," said Pat Orr, an organizer of Citizens United, a group that led the recall effort. The council's plan to reduce lot sizes was the entire basis for the recall, he said. Earlier this year, the City Council conducted a public hearing regarding smaller residential lots that attracted hundreds of people, nearly all of whom opposed the proposal. But the council majority refused to drop the proposal and council members put it on the ballot as a general plan amendment. At the same time, Citizens United qualified the initiative that freezes residential densities. The council's refusal to dismiss the idea in the face of such obvious opposition spurred recall efforts, Orr said. Apple Valley, like other cities in Southern California's high desert, has generally welcomed development. That attitude has not changed, said Orr, who owns two pizza parlors in town. Apple Valley has a tradition of horse ranches, large lots and nice homes for retirees, and there is little support for extensive housing tracts or multi-family development. Recent apartment construction has become a sore point, he said. "It's mostly about preserving the lifestyle. Even the people who live in the apartments, when polled, say that when they move up, they want that type of lifestyle," Orr said. Kenneth J. Henderson, Apple Valley's economic and community development director, worries that Measure N's mandate that rezoning go to voters could discourage businesses from coming to Apple Valley. The neighboring cities of Victorville and Hesperia lack such a requirement. "For the most part, the commercial and industrial zoning we have in town appears to be adequate to meet our needs for the foreseeable future," Henderson said. And, he added, Measure N should not affect a 136-acre retail, light industrial and residential project that has been in the works for three years. A City Council vote is scheduled for December 7. Apple Valley plans to hire a consultant to address how Measure N affects the city's ability to meet state housing mandates. The election in Chino Hills — a city of 58,000 near the intersection of the San Bernardino, Los Angeles and Orange county lines — was less explosive but came in an area where growth pressures are greater. Voters by a 3-to-1 ratio approved an initiative that requires an election before the city can increase existing residential zoning densities or rezone commercial property to residential. Measure U has the effect of keeping Chino Hills's minimum lot size at 7,200 square feet. A group called Save Our Canyons backed the initiative by arguing that the initiative preserves the area's "rural heritage." A Save Our Canyons leader, Carleton Shepard told the Ontario Daily Bulletin, "Measure U was all about preventing the building industry from dictating the growth of our city." The Baldy View Chapter of the Building Industry Association campaigned against the measure, and the group vowed to fight attempts to make developers pay the cost of future elections mandated by Measure U. The city has not been getting proposals for small-lot development, but it has received plans that call for three or four houses per acre on land zoned for one to two houses an acre, said Brian Saeki, a Chino Hills planner. The city had a moratorium on rezones leading up to the election because of the number projects submitted, he said. In Redlands, just east of San Bernardino, voters rejected an initiative (Measure V) that would have imposed an annual limit on residential development of 400 units, encouraged citrus production and altered traffic patterns to prevent commuters from using residential and downtown streets. Voters also turned down Measure W, which would have placed strict limits on building houses in 6,000 acres of the San Timoteo Canyon. Also, two incumbent city council members who supported the initiatives lost their re-election bids by wide margins. The election outcome may well indicate that Redlands voters are moving away from the slow-growth politics that have characterized the city in the past. Developers lose elsewhere About 85 percent of voters in Agoura Hills, a Los Angeles County city of 22,000 along Highway 101 near the Ventura County line, backed a measure that requires two-thirds of voters to approve development on existing open space. About 40 percent of the city is now designated as open space, mostly in the form of oak-studded hills that surround the town. The City Council unanimously supported the initiative. Ray Pearl, deputy director of governmental affairs for the Los Angeles County Chapter of the BIA, said his organization opposed Measure B but he was not surprised it passed. "Our builders just don't care about Agoura Hills. They are difficult to do business with. … They just want their precious open space," Pearl said. The Agoura Hills measure is a cousin of the SOAR initiatives in Ventura County. However, the Ventura County growth-controls require only majority votes and are targeted mostly at farmland. Ballot measures in this vein could appear in the future in the cities of Calabasas and Westlake Village, upscale communities on either side of Agoura Hills. Farther south and one week later, in the San Diego suburb of Santee, voters said no to a proposed 3,000-unit housing development, golf course, hotel and small commercial center. The City Council approved the Fanita Ranch development in May, but project opponents forced referenda on the general plan amendment and specific plan. (See CP&DR Local Watch, September 1999.) The referenda in the November 9 special election failed nearly two-to-one. Increased traffic was the biggest issue. Somewhat confusingly, Santee voters also rejected a measure placed on the ballot by the City Council that called for the city to pursue purchase of the property as permanent open space if the referenda failed. One year earlier, voters defeated a proposition that would have limited Santee Ranch development to 1,277 homes. Five hundred miles north, voters in Half Moon Bay said they want to clamp down tightly on development in the San Mateo County coastal city. The city already had a 3% annual growth cap, but voters reduced it to 1% per year, or about 40 building permits. Measure D allows up to 1.5% growth if the additional half-percent is in downtown. The city has turned away a handful of would-be builders under the 3% cap, so officials must determine how to allocate even more precious permits, said Bill Smith, Half Moon Bay senior planner. The city is now learning how to implement Measure D and is beginning the process of amending its Local Coastal Plan, which the initiative impacted. In the City of Fairfield, developers lost by the widest margin. Nearly 90% of voters rejected developers' initiative that would have permitted construction on farmland outside Fairfield's existing urban growth boundary. Developers were eyeing land near Travis Air Force Base. In exchange, the growth boundary would have shrunk in other parts of town. Developers formed a committee called Greenbelt Yes, which spent a stunning $700,000 campaigning for Measure I in this city of 92,000. But the City Council unanimously opposed the initiative, and several activist groups battled the measure. The Greenbelt Alliance's Stivers said opponents made personal contact with nearly every voter in Fairfield during the extended campaign. Fairfield voters in 1997 narrowly defeated a growth-restricting urban limit line initiative. A similar measure may surface in the near future. Contacts: John Landis, UC Berkeley urban planning professor, (510) 642-5918. Ronald Zumbrun, attorney, (916) 486-5900. Evelyn Stivers, Greenbelt Alliance East Bay field representative, (925) 932-7776. Kenneth J. Henderson, Apple Valley economic and community development director, (760) 240-7900. Pat Orr, Citizens United in Apple Valley, (760) 948-5060. Bill Smith, Half Moon Bay senior planner, (650) 726-8250.

Like a powerful winter swell, political action related to California's treasured coastline is generating waves in halls of local government, the capitol and even courtrooms these days. Political, environmental, and economic development interests are combining forces to create some of the most intensive changes to coastal planning since the passage of the Coastal Act in 1972. Even cities that are many miles inland could feel the effects of this beach-protection movement. Perhaps the most interesting part of all this new activity is the way legislation is coming about: environmental groups are educating and encouraging local governments to collaborate in lobbying state and federal entities. The strategy is working. The experience of the California Coastal Coalition indicates that grassroots movements can catalyze top-down change, especially when their positions are built upon compelling science and arguments. The coalition, dubbed CalCoast, was only formed in July 1998, but it has already established a legislative beachhead with the passage of AB 64 this past summer. The Public Beach Restoration Act funds a study of beach sand replenishment projects. The Encinitas-based non-profit boasts the participation of 26 cities (from Eureka to Imperial Beach), two regional COGs (SANDAG and the Association of Monterey Bay Area Governments), and BEACON, a Santa Barbara-Ventura County government joint powers authority formed in 1996 to address beach erosion. Assemblywoman Denise Ducheny (D-San Diego), who authored AB 64, said the solid scientific basis for CalCoast's advocacy provided the group with credibility. The group also has astutely emphasized the economy to get its message across to local governments. A commonly cited 1995 San Francisco State University study estimated that the state's beaches were responsible for $10 billion in direct spending $1 billion in state taxes and more than 500,000 jobs. Beach-related jobs constituted 3.5% of the state's employment. Another study prepared by Cal Coastal shows a yawning inequity of federal coastal protection spending. Of $89 million in dollars spent in 1998, $60 million, or 67%, went to New York, New Jersey, and Florida. "This is mainly because California has not asked for the money," says Steve Aceti, a former New York state lobbyist and now the CalCoast executive director. "The other thing is that California has no sustained state program for beach protection and replenishment, and federal dollars are attracted to states with matching programs." It was only a few years ago that most of the state's coastal communities took their beaches and coastal resources for granted. Actual jurisdiction – and therefore government responsibility – has been the purview of state or county parks systems, which were commonly losers during this decade's public budget shuffling. Even today, most coastal municipalities follow the historic assumption that matters such as beach protection are handled by the US Army Corps of Engineers, so the cities employ few engineers who understand coastal hydrology. But due to steady and growing pressure from a few persistent environmental groups, and a trend of shifting of responsibilities to local levels, an emergent new coalition of coastal communities has formed, and its advocacy efforts are beginning to alter how the State deals with our beaches. This sort of advocacy started with AB 411, passed into law in 1997. A San Diego environmental group known as Surfers Tired of Pollution (STOP), an affinity group that preceded CalCoast, backed the bill, which was a "right to know" law. This legislation, by La Jolla Assemblyman Howard Wayne, focused on requiring county health departments to test and post water quality information at public beaches regularly. The law took effect in July of this year, and the results have been dramatic. The City of Huntington Beach ended up being the poster child for AB 411, having its famous beaches red-flagged for more than 119 days by the Orange County Department of Public Health. Under the old rules, the beach would have been posted for only 7 days. Although still not entirely verified, the problems appeared to stem from stagnant stormdrain water that was flushed to sea as part of permitted hotel construction project. The reaction has been dramatic. The City has calculated and publicized the huge monetary losses on its tourist revenue stream this summer, and the events have not escaped notice up and down the coast by other municipalities that face similar public relations black eyes. Meanwhile, water quality and wetland creation efforts are also gaining steam. Led by Santa Monica and its efforts to clean stormwater runoff that has long polluted the fabled bay, coastal cities are suddenly very interested in making sure compliance with Clean Water Act rules about stormwater runoff are enforced. In October, the City of Laguna Beach received broad publicity about its consideration of suing upstream municipalities for polluted water that they discharge into creeks that ends up on Laguna's beaches. The city's threat signals a potential for expanding the responsibility for clean ocean water to inland communities. Perhaps the swell of coastal protection will have a pull beyond the coastal zone. Stephen Svete, AICP, is a principal in the Ventura-based consulting firm of Rincon Consultants.

"I don't have to talk to you," the developer says to the public official. "I have the right to build whatever I want, wherever I want it." How many developers, exhausted or hamstrung by local government, have longed to say those words? And how can local government respond, when a developer actually does say those words to them — with the full support of federal law? As it turns out, at least one group of developers in California actually can say those words, and back them up: Native American tribes that want to develop gambling casinos Despite those unquestioned powers, Placer County found a way of entering into a dialogue with a local Native American tribe on the ticklish question of casino development, and eventually got the tribe to agree voluntarily to abide by local land-use controls. Both the president of the Placer County Board of Supervisors and an attorney for the tribe praise the pact as a model for future cooperation between Indian tribes and local governments. Like it or not, casino gambling on Indian reservations is a rapidly growing phenomenon in California, where at least 67 Indian tribes are currently seeking to build or expand casinos, according to the Associated Press. Under the Indian Gaming Regulatory Act of 1988, Native American tribes that are recognized by the U.S. government have the right to build casinos without regard to local land-use controls; the language of the statute explicitly states that local government regulations do not apply. Being a pest, or threatening to become one, was the way that a Placer County supervisor brought one tribe to the table. In 1994, Congress granted official recognition to the United Auburn Indian Community, which gave the tribe the right to acquire land anywhere in the county for the purpose of creating a reservation. (The tribe heretofore has been landless.) In 1997, representatives of the tribe approached then-newly elected Supervisor Robert Weygandt and informed him that the tribe intended to build a 200,000-square-foot casino near Penryn, which is located just off heavily traveled Interstate 80 about 30 miles northeast of Sacramento. Although a freshman supervisor, Weygandt had just completed four years on the county's Planning Commission and had a better-than-average sense of land-use law. Shortly after tribal officials presented their plans to Weygandt, he drafted a resolution, which the Placer County Board of Supervisors later approved, that essentially said the tribe should respect county land-use planning. "I was not an opponent of the proliferation of gambling in the state," Weygandt said. "My problem was more the exemption from land-use planning. The supervisor figured he had nothing to lose by asking the Native Americans to comply with the local rules. He also thought it conceivable that the tribe would want to avoid the sort of bad blood that was brewing between members of the Shingle Springs tribe and residents of nearby El Dorado County, where the tribe wanted to build a 100,000-square-foot casino and 325-room hotel just east of Sacramento. Weygandt now acknowledges that the resolution was a bit of a bluff. "We all sort of knew that the only real right the county had was to challenge the project on a NEPA issue." If the tribe chose to build on land that was environmentally sensitive and could trigger the federal law, Weygandt reasoned, the county might obtain the leverage it needed to fight the casino. In his view, the Penryn site may have been sensitive enough. A few months later, Weygandt wrote a letter to the tribal chair to see how receptive the tribe would be to talking. To Weygandt's surprise, tribal officials wrote back and said, in effect, that they were willing to comply with all local land-use standards, including traffic mitigation, design review guidelines and environmental review. Weygandt is still not sure what convinced the tribe to accept the county's conditions. "I gave them the best possible sales routine, that one player that was not playing by the rules could ruin a whole community," the Placer County supervisor recalled. "Somewhere in the process they genuinely embraced the theory. I tell people that (the Native Americans) became born-again land-use planning advocates." Eventually, the Auburn tribe agreed to locate the casino on a 58-acre site within a 9,000-acre industrial park in the City of Rocklin, a few miles west of Penryn. The site was already designed for intense traffic impacts, and the location could serve as a buffer between the casino and residential neighborhoods. Last August, the county and the tribe finalized a memorandum of understanding. The agreement does not require the tribe to submit to either the county building department or CEQA. Instead, the agreement "sets out the standards that are going to apply, as a matter of tribal law, and gives the county certain assurances with which the tribe will meet those standards," said Howard Dickstein, the tribe's attorney. If the county does not agree, it can initiate arbitration procedures. The agreement also establishes a committee to monitor the relations between the county and the tribe, and to propose amendments to their agreement, if and when needed. The committee becomes the forum for doing business and resolving disputes between the county and the tribe. Dickstein sounded even more impressed with the agreement than was Supervisor Weygandt. The agreement between the Auburn tribe and Placer County is "the most comprehensive agreement of its kind, not only in the state but in the nation." The pact, he continued, "reflects a kind of maturity on the part of both governments, and a recognition that they are interdependent." Sovereignty, according to Dickstein, "no longer means drawing a line in the sand." One irony of the situation is that several other Indian tribes have expressed concern that the Auburn-Placer agreement would become a precedent that could have the ultimate effect of eroding the right of Native Americans to develop free of land-use regulation. I admire the Auburn tribe for behaving like neighbors, rather than like an imperious sovereign nation, or, even worse, like a neighboring California city. In the state's present climate, it is refreshing to hear someone say, "I can build whatever I want, but I will talk to you about it anyway, because we are neighbors and our mutual well-being is interconnected." With 67 more casinos in the offing, it would be good to hear those words more than once.

In a decision that could have implications for the cleanup of polluted industrial sites, the Second District Court of Appeal has ruled that an oil company's insurer has no responsibility to pay for state-mandated remediation. In a 2-1 ruling, the court held that the insurer's promise to defend a "suit" did not force the insurer to defend an administrative proceeding. Furthermore, the court said, the insurer must pay only court-ordered damages, and not fines coerced by an administrative agency. In a dissent, Justice Richard Aldrich wrote that the majority ruling "frustrates the legislative purpose behind the administrative procedure to effect speedy, efficient response and remediation of our environment." The case arose because of pollution at refineries operated by Powerine Oil Company. During its peak, Powerine operated numerous Southern California facilities, including its original Santa Fe Springs refinery opened during the 1930s. By the mid-1980s, however, a poor petroleum market had forced Powerine into bankruptcy and the only facility still operating was the company's Santa Fe Springs refinery. In 1985, the Los Angeles Regional Water Quality Control Board issued a cleanup and abatement order for the Santa Fe Springs facility because leaking jet fuel, gasoline and other petroleum products had contaminated the soil and groundwater. In later years, the San Diego Regional Water Quality Control Board ordered cleanup of Powerine's former San Diego storage facility, and the Los Angeles board issued another order to clean up pollution. In total, the water boards cracked down on 10 Powerine sites. Also, the federal Environmental Protection Agency named Powerine as a potential responsible party (PRP) for the cleanup of hazardous waste dumps in Santa Fe Springs and Monterey Park, both of which had accepted materials from Powerine. The company, which conceded at least some responsibility for the pollution, turned to its several insurers for help in defending the administrative actions. However, the insurance companies, with one exception, denied coverage. One of the insurers sued to get a declaratory judgement regarding the coverage issue. Powerine counter-sued all of its insurers and won a portion of its suit at the trial court level. On appeal, the insurance companies relied heavily on a decision made last year by the California Supreme Court in Foster-Gardner, Inc. v. National Union Fire Ins. Co., (1998) 18 Cal.4th 857 (mod. at 19 Cal.4th 253). The court ruled in that case — involving an insurer's duty to defend during an environmental compliance administrative process — that the "unambiguous language of the policies obligated the insurers to defend a ‘suit,' not … the ‘substantive equivalent' of a suit." The insurance companies' argument persuaded the majority on the Second District, Division Three bench. The appellate court said that the Foster-Gardner decision was based on a literal interpretation of contract language — not a functional interpretation. Further, the Foster-Gardner decision provided a "bright-line" rule that limits an insurance company's obligations, Justice Walter Croskey wrote in his opinion. Because Powerine chose to comply with the cleanup orders, no court order — for which the insurer would be responsible — existed. Croskey quoted from a similar Illinois case, Zurich Ins. Co. v. Carus Corp., 293, Ill.App.3d 906: "The rule … is clear: an insurer's duty to defend and indemnify is triggered by a suit against the insured, and in the absence of a lawsuit, no such duty exists. Since no suit was brought against , the insurers had no duty to defend or indemnify." But in the dissent, Aldrich said the literal interpretation was improper, and he called the majority decision "shortsighted." He argued that the costs of complying with the government's remediation orders qualified as "damages" that the insurers had a duty to indemnify. The difference had to do with the method the government used to enforce cleanup requirements, and "our Supreme Court has repeatedly rejected a construction in which coverage turns on the form of action taken against the insured," he wrote. The majority's ruling forces a polluter to ignore an agency's cleanup orders and await an adverse court judgement from an agency-initiated lawsuit, Aldrich wrote. In that instance, the government would undertake the cleanup and give the bill to the polluter, which could be ruined by the expense of the cleanup and the penalties for violating cleanup orders. Plus, environmental remediation, the goal of the entire process, would be delayed. At the court's request, a number of parties submitted amicus briefs, including, on behalf of Powerine, the state Attorney General's Office and the Port of Oakland. The Case: Certain Underwriters at Lloyd's London v. Superior Court, No. B129909, 99 C.D.O.S. 8564, 1999 Daily Journal D.A.R. 10929, filed October 25, 1999. The Lawyers: For Lloyd's: Patrick Cathcart, Hancock, Rothert & Bunshoft, (213) 623-7777. For Powerine: David Isola and Aaron Bowers, Isola & Bowers, (209) 367-7055.

From the viewpoint of the timber industry, the state Board of Forestry is working on a package of rules that would significantly reduce timber harvests on private property. From environmentalists' standpoint, the board is laboring over rules that do not go nearly far enough toward protecting water courses and endangered salmon from the effects of logging. The two sides agree on one thing — state forestry regulators do not have adequate data and analysis to make new rules. "Our concern is that they really did not take the time at the beginning, nor have they taken the time since, to dig into what the underlying concerns are," said Mark Rentz, California Forest Association vice president for environmental and legal affairs. Kevin Bundy, of the Environmental Information and Resource Center, sounded a somewhat similar note. "It's unclear to what extent the science that has been developed has been relied upon," he said. State officials disagree and they continue to refine proposed regulations aimed at threatened and impaired watersheds. Driving the new rules is the listing of coho salmon as a federally endangered species, and the pending listing of steelhead. Officials say the rules would protect fish and improve water quality in rivers, primarily by decreasing the amount of sediment that washes into rivers and by keeping streams colder. The Board of Forestry first released the proposal in July, and the board conducted public hearings during September and October before deciding to convene a committee to work on the details. "I like to think we are moving forward," said Dennis Hall, regulations coordinator for the California Department of Forestry and Fire Protection and a board staff advisor. "There is obviously a need to protect watersheds." Exactly what the rules would do is difficult to define because the rules are a work in progress and the board has not chosen from multiple alternatives. Essentially, the package addresses logging near streams and rivers, activity on unstable slopes, road building, and monitoring after a timber harvest. By expanding the definition of a river's "channel zone," the rules could reduce logging near watercourses, Hall said. Currently, the channel zone ends at the first line of permanently established riparian vegetation, and logging generally is prohibited inside the line. One of the proposals would expand the channel zone to encompass a river's alluvial floodplain. Some North Coast rivers, such as the Russian, run through large, nearly flat floodplains. Originally, the rule package called for extensive post-harvest monitoring to determine the effects of logging and accompanying mitigations. However, concerns over gaining access to remote areas, the costs for small landowners and an undefined role for the state has complicated things, Hall said. Still, some additional monitoring requirements are being considered. Maybe the biggest point of contention concerns where the rules would apply. A Scientific Review Panel convened last year by state and federal regulators extensively studied the North Coast and made detailed recommendations for new timber harvest regulations in that area. However, the federal Environmental Protection Agency has expressed concerned about the quality of water in streams throughout the state, Hall noted. Thus, the rules could extend to all state-owned lands and all of California's 7.5 million acres of private timberland. (The U.S. Forest Service regulates logging in national forests.) The National Marine Fisheries Service has pushed for stiffer logging rules because of the strong relationship between forest practices and salmon health, said Joseph Blum, NMFS fisheries administrator in Sacramento. "The rules themselves are simply not adequate to take salmon into account and then do something. The ‘do something' part is deficient," Blum said. "We have continued decline in the overall picture for salmon." But Rentz, of the California Forestry Association, said existing rules in nearly all cases are adequate to protect fish and water quality. "A lot of the concerns are questions of implementation," he said. To that end, Rentz noted, Gov. Davis has approved an additional $7 million for review of logging activities. Rentz and others contend the rules package, if adopted, would severely damage the industry. "It takes a significant portion of the remaining private forest land out of production," Rentz said. "On other lands, it would limit the economic feasibility to such a point that you couldn't economically afford to log that land." He pointed to a study, commissioned by the CFA, that estimated a direct loss of 2,000 jobs in the short-term and 4,000 jobs in the long run, and an economy-wide job loss that could reach 8,000. That study, by Professor William McKillop of the University of California, Berkeley's College of Natural Resources, predicted a reduction in private land timber harvest of one-sixth to one-quarter. "As a result of the impact on all private timber harvests, the total economic loss (in 1999 dollars) from adoption of the proposed rules will be approximately $250 million per year in the short-term and $430 million in the longer-term," McKillop concluded. Bundy, of Mendocino County-based EPIC, which gained notoriety during the Headwaters Forest fight, said revised logging rules are overdue, but the package before the Board of Forestry is inadequate. For example, state regulators have not even defined a "no-cut zone" near streams, he said. State officials need to insist on a more rigorous analysis of factors affecting salmon habitat and water quality, he said. As it stands now, most timber harvest plans contain only a boilerplate description of a project's potential impacts, he said. "Until that basic flaw is addressed, tinkering with buffer zones and road building will not allow watersheds and fisheries to recover," he said. Bundy recommended the state impose strict no-cut zones in sensitive areas, prevent activity on unstable hillsides, prohibit some water crossings and order removal of some logging roads. Most importantly, he said, state regulators should insist on a better scientific analysis of all factors impacting salmon and water quality, he said. EPIC has already threatened litigation if the rule package is adopted without significant revisions. The rules would result in a "take" of coho salmon, which the federal government has prohibited since 1997, and for which the state should be held liable, Bundy argued. Both sides urged state regulators to go back to a firmer scientific basis before taking action. But that does not appear likely to happen. The Board of Forestry, which normally does not meet in December, scheduled meetings this month to continue work on the rule package. Blum, of the NMFS, said he is optimistic the board will at least take a necessary step toward reforming timber harvest practices. The board's goal is to complete the regulations by mid-March, said Hall, of the CDF. The regulations would become effective July 1, 2000. Contacts: Dennis Hall, California Department of Forestry and Fire Protection, (916) 653-9418. Joseph Blum, National Marine Fisheries Service, (916) 498-6696. Mark Rentz, California Forestry Association, (916) 444-6592. Kevin Bundy, Environmental Protection and Information Center, (707) 923-2931. Web Site: www.fire.ca.gov/bof/board

The future of the El Toro Marine Corps base in Orange County remains as clouded as ever, with voters likely to decide in March on an initiative that could doom a commercial airport proposed for the site. A 3-2 majority on the Orange County Board of Supervisors continues to push ahead plans for an international airport at El Toro, located in and adjacent to the City of Irvine. But the Safe and Healthy Communities initiative would require two-thirds of voters to approve a new airport. Further increasing tensions is the creation of new cities near El Toro, partially in response to the county's airport plans. Those incorporations result in new political entities that can aid the anti-airport fight. After years of winding down activity, the Marine Corps left El Toro for good in July. Because El Toro appeared on the base closure list in 1993, a great deal of time existed to plan for base reuse. However, Orange County split into pro- and anti-airport factions with the passage of a 1994 initiative that designated the 4,700-acre site for an airport. A 1996 initiative to overturn the previous one failed, further bolstering airport supporters. The plan advanced by the county, which the Department of Defense has designated as the official reuse agency, calls for an airport capable of handling 28 million passengers and 2 million tons of air cargo a year. (See CP&DR, January 1997, July 1996.)That is roughly the number of passengers at Sky Harbor Airport in Phoenix, and about three times the number of passengers who currently use the heavily constrained John Wayne Airport, eight miles west of El Toro. The county is completing an environmental impact report, which supervisors are scheduled to consider next spring. But unincorporated communities south and east of El Toro are unhappy with the county's plans and are joining the fray as new cities. The gated retirement community Leisure World, which lies directly under the El Toro flight path, incorporated as the City of Laguna Woods in March. Voters in the planned community of Rancho Santa Margarita, a few miles east of El Toro, were expected to vote for cityhood on November 2. No major opposition arose to making the community of 31,000 people Orange County's 33rd city. Next up on the cityhood list is Aliso Viejo, a community of about 40,000 people southwest of El Toro which also lies under the flight path. The new Laguna Woods City Council (see CP&DR, May 1999) almost immediately voted to join a coalition of seven other cities, known as the El Toro Reuse Planning Authority, that is fighting the proposed airport. Airport opposition is not the only reason behind the latest two proposed incorporations, but it is a factor, said Dana Smith, Orange County Local Agency Formation Commission executive officer. "Like everything in Orange County, El Toro sits as an undercurrent," Smith said. The city coalition this year plans to spend about $6 million on marketing and planning. The coalition continues to fine tune its Millennium Plan, which calls for a mix of industrial, retail and residential development at El Toro, plus parks and schools. The plan won an award from the California Chapter of the American Planning Association in October but that has not convinced the Board of Supervisors' slim pro-airport majority. "From my standpoint, it's going to be an airport," said Charles Smith, chairman of the Orange County Board of Supervisors. "The economic forces behind it are too great. The only question is when." The Safe and Healthy Communities Initiative could make that question difficult to answer. The initiative would require two-thirds of county voters to approve of a new or expanded airport, a new or expanded jail, or a hazardous waste landfill. Initiative backers provided plenty of signatures to qualify the initiative for the ballot. However, a collection of business groups has sued to block the measure from the ballot. Airport backers argue that only county supervisors, not county voters, can decide the location of major facilities such as airports. Los Angeles County Superior Court Judge Dzintra Janavs has scheduled a hearing for November 19. Passage of the Safe and Health Communities initiative would "sound the death knell for an airport," said Supervisor Tom Wilson, an airport opponent whose district includes both El Toro and John Wayne airport. He supports the initiative. "I don't think the elections that went by (in 1994 and 1996) really tell the whole story," said Wilson. "The public, whether they voted last time or not, today is becoming more and more educated as to reuse of that property. And with that education comes a more sophisticated voter." Wilson contended he and Supervisor Todd Spitzer, the board's other airport opponent, are shut out of airport planning discussions. "Communications are not what we would like them to be. I believe the airport minority is not privy to information given to the majority," Wilson charged. But Board Chairman Smith said he was "not too sympathetic to their concerns." He said staff members have intentionally kept all supervisors out of the loop of daily activity because planning information given to supervisors becomes public and airport opponents immediately seize on it. Such suspicion on either side reflects the current atmosphere in Orange County. "There is just no dialogue," said Tom Edwards, chairman of the El Toro Airport Citizens Advisory Commission. Contacts: Tom Wilson, Orange County supervisor, (714) 834-3550. Charles Smith, Orange County supervisor, (714) 834-3110. Tom Edwards, El Toro Airport Citizens Advisory Committee chairman, (714) 871-1132. Dana Smith, Orange County LAFCO executive officer, (714) 834-2556.

A landowner may sue the City of Huntington Beach for a temporary taking because of city delays in adopting a Local Coastal Plan and zoning for the property, the Fourth District Court of Appeals has ruled. The city argued that the takings claim of the Mills Land & Water Company was not ripe because Mills never sought a final determination regarding the permissible type and intensity of development. But the appellate court ruled that " he city had an obligation to get its LCP in place within a reasonable time so that Mills could ascertain what potential permitted uses the city would allow." The city took nearly 20 years to complete an LCP acceptable to the California Coastal Commission. The unanimous, three-judge appellate panel overturned the decision of Orange County Superior Court Gary Ryan — who had sustained three demurrers filed by the city — and remanded the case for trial. "Whether Mills's conduct in not taking further steps to force the zoning issues to a final conclusion with the City was reasonable is a factual issue which cannot be resolved on demurrer," wrote Orange County Superior Court Judge Tully Seymour, sitting by assignment to the appellate bench. "Similarly, determining whether the city's delay in processing and adopting its LCP was justified requires an evidentiary record." The case is significant because it appears to open the door to lawsuits from thousands of other landowners in areas that still do not have LCPs, said Mark Rutter, the city's lawyer. About 30% of coastal sections do not have LCPs, even though the Coastal Act required their submission in 1981. The city and Attorney General Bill Lockyer have asked for a rehearing before the full appellate court panel. In the early 1900s, Mills Land & Water purchased 51 undeveloped acres. The land, which lies in a coastal zone, is on the inland side of the Pacific Coast Highway, across from Huntington Beach State Park. In 1965, the state acquired 28 acres from Mills for a freeway. But when the state abandoned its freeway plans, it granted Mills an option to reacquire the property. In 1978, Mills applied to the city for a general plan amendment to allow residential and commercial development. More than a year later, the city denied Mills's application, citing the need to complete a Land Use Plan for the city's coastal section. In following years, the city and Coastal Commission argued over proper use of the Mills land, with the Coastal Commission citing a Department of Fish & Game recommendation that the site be restored as wetlands. By November of 1982, the commission had certified the LUP with the exception of the 51 acres, which became known as the "White Hole." The city then waited until 1986 to adopt a revised LUP that included the White Hole. The plan designated seven acres of the Caltrans parcel for visitor-serving commercial uses, and the other 44 acres for conservation. The Coastal Commission approved this plan in October 1986. But then the city had to change its zoning for the White Hole to reflect the LUP. It was not until April 1990 that the city sent its proposed zoning changes for the While Hole to the Coastal Commission for certification. In the meantime, Mills applied for approval of a light-industrial office project on its 23 acres in July of 1989. The city, however, refused to process the application, saying Mills needed to obtain an amendment to the LUP, which designated the site for conservation. In May of 1992, the Coastal Commission approved the city's zoning change but added a "conservation overlay." The upshot was to designate seven acres of the Caltrans parcel for visitor-commercial development in exchange for protecting the other 44 acres. However, that zoning never became effective because the city did not act on the Coastal Commission's suggested modification within the six-month statutory deadline. Instead, the city waited two years to adopt the zoning proposed by the Commission and to seek the commission's certification. Mills filed its first lawsuit challenging the zoning in December of 1994, while the Coastal Commission was considering the latest submittal from the city. By April of 1996, the city adopted zoning consistent with the Coastal Commission's modifications, ending the long conflict between the city and the commission. The enactment of the zoning mooted Mills's challenge to the validity of the earlier zoning, according to the appellate court. The only issue left was whether Mills was entitled to damages for an unreasonable delay in establishing the zoning — a temporary taking. The city argued that no taking occurred because the city never gave a final rejection to Mills's development plans. But the appellate court said that that argument "is irrelevant given the nature of Mills's claim that the failure of the City to adopt zoning regulations within a reasonable time under which it could submit a meaningful development application constituted a taking." A similar issue arose in Healing v. California Coastal Commission, (194) 22 Cal.App.4th 1158, in which a landowner who wanted to build a house was stuck while Los Angeles County slowly completed a Local Coastal Plan acceptable to the Coastal Commission. "As in Healing, here the City cannot rely on its failure to adopt its LIP (Local Implementation Plan) and attendant zoning to claim Mills's claim is not ripe," wrote Seymour, a former Newport Beach city attorney. The court also suggested that Mills qualified for the "futility exception" to the ripeness doctrine. That narrowly construed exception relieves developers from submitting multiple applications when it is clear the government will approve none of them. The court cited Milagra Ridge Partners, Ltd., v. City of Pacifica (1998) 62 Cal.App.4th, 108. Mills alleged that city planners in 1988 said it would be futile for the landowner to try to change the conservation designation or to apply for permits to develop that portion of the property. The Case: Mills Land & Water Company v. City of Huntington Beach, No. G020490, 99 C.D.O.S. 8005, 1999 Daily Journal D.A.R. 10151, filed September 27, 1999. The Lawyers: For Mills: Arthur Cook and Dean Dennis, Hill, Farrar & Burrill, (213) 620-0460. For Huntington Beach: Mark Rutter, Moore, Rutter & Evans (562) 435-4499.

Delays in constructing roads and utilities funded by Mello-Roos bonds do not absolve property owners of paying Mello-Roos assessments, the Fourth District Court of Appeals ruled in a recently published opinion. In a case from Riverside County, the unanimous three-judge panel found that property owners have an obligation to bondholders that is independent of any dispute over how bond proceeds are used. The County created Community Facilities District 88-8 under the Mello-Roos Community Facilities Act of 1982 (Gov. Code §53311 et seq.). The CFD covered a slice of land along the west side of Interstate 215 north of Perris. More than two-thirds of landowners within the CFD voted to authorize the county's proposed sale of Mello-Roos bonds to fund roads and utilities to encourage industrial development. Improvements were scheduled to be finished by April 1992, but various problems delayed completion until mid-1996. John and Barbara Harvill, owners of 12 parcels within the CFD, defaulted on payment of special taxes related to the Mello-Roos bonds for the 1994-95 tax year. The CFD then foreclosed on behalf of bondholders. The Harvills did not dispute the unpaid taxes. Instead, they contended that the special election authorizing the bond sale created a contractual relationship between them and the CFD, and that the CFD failed to live up to that contract. San Diego Superior Court Judge Herbert Hoffman issued summary judgement for the CFD, and the appellate court affirmed the decision. "Harvills' claim CDF failed to perform contractual obligations, thereby excusing nonpayment of special taxes, is not a defense to this type of action," wrote San Diego Superior Court Judge E. Mac Amos, sitting on assignment to the Fourth District, Division One. The CFD brought the foreclosure action on behalf of bondholders, and the Harvills provided "no evidence bondholders had any obligation to them related to construction of the improvements by CFD or County," Amos wrote. Even if a contract exists between the Harvills and the CFD, bondholders are not party to it. "We further note that as a matter of public policy, a municipal bondholder's right to repayment cannot be frustrated by disputes between the issuing entity and the property owners regarding the use of bond proceeds," Amos continued. The court rejected the Harvills' argument that special taxes are invalid because of alleged construction irregularities. "Where, as here, it is undisputed Harvills' special taxes remain unpaid, the court cannot prevent or enjoin the collection of those taxes," Amos wrote. The appellate court also upheld the trial court's award of attorneys' fees to the county, and ordered the Harvills to pay attorneys' costs on the appeal. The Case: Community Facilities District No. 88-8 v. John Harvill, Nos. D029328, D029926, 99 C.D.O.S. 7309, 1999 Daily Journal D.A.R. 9303, filed August 6, 1999, modified and ordered published September 2, 1999. The Lawyers: For CFD 88-8: Susan Feller, Sherman & Feller, (510) 452-3222. For Harvill: Henry Heater, Endeman, Lincoln, Turek & Heater (619) 544-0123

Two lawsuits Attorney General Bill Lockyer filed against Tulare County regarding approval of giant dairies have been settled. The county agreed to add an animal waste management element to its general plan and to complete a program EIR by the end of the year. Under terms of a settlement reached in August, the Airosa Diary agreed to suspend its 3,600-cow expansion of a dairy near Pixley until the county completes the EIR and reviews the expansion. An October settlement of a second lawsuit places the same conditions on the Jongsma family, which received county approval for a 3,200-cow dairy near Earlimart earlier this year. Lockyer filed the lawsuits because he contended Tulare County was not performing adequate environmental review of dairy proposals, which the county was approving based on mitigated negative declarations. (See CP&DR Local Watch, July 1999.) Tulare County is the number one dairy county in the nation, with more than 300,000 cows and about 20 applications for new or expanded facilities. "This settlement is a good blueprint for addressing environmental review of diary projects," Lockyer said in a written statement. Lockyer, environmentalists and anti-poverty advocates fear that runoff from the giant dairies can pollute surface water and groundwater.

Architects and planners like to think they are building "for the ages." Recent experience, however, suggests the very opposite. The culture, the economy and fashions in urban design all appear to be in a rapid state of change. Perhaps the Internet and advances in telecommunications are shortening the half-life of cultural events. Perhaps we're just getting older and the world seems to be getting faster. Notwithstanding, buildings that exemplified urban life only 20 years ago are rapidly becoming obsolete. The ability, therefore, to recycle these buildings becomes important indeed if downtown areas are not to become elephants' graveyards. That's why the Paseo Pasadena project, a make-over of the old Plaza Pasadena shopping center in downtown Pasadena, may have importance far beyond the city boundaries. Built in 1980, this three-block shopping center was one of many across the country that promised to bring retail trade back downtown. Plaza Pasadena tried to be a good urban citizen, and the mall had some forward-looking features for a project of its time. The shopping center more or less conformed to the existing street grid, even if the two-story, 700,000-square-foot mall was a three-block-long pancake. Plaza Pasadena made a gesture toward pedestrians by providing a grand entrance off Colorado Boulevard, the city's most important commercial street (even though most shoppers quietly entered and exited at the rear of the property, in their cars.) Those gestures aside, Plaza Pasadena was a dog. Beyond a weak tenant mix and mediocre sales, the mall was architecturally boring, lining Colorado Boulevard with acres of blank walls of tan-colored brick. Surrounded by Pasadena's extraordinary collection of Classical-style buildings, mostly dating from the era of the City Beautiful movement, the vacuity of Plaza Pasadena was an enduring insult — the bore at the party who would not stop talking amid a crowd of brilliant guests. Retail did, in fact, return to downtown Pasadena in the form of Old Pasadena, a redevelopment project that created retail venues and movie theaters out of neglected older buildings on Colorado Boulevard, a few blocks from Plaza Pasadena. Few cities have provided a more dramatic example of the latent power of pedestrian-oriented retail districts. Old Pasadena apparently answered some unmet demand for pedestrian-oriented nightlife; the district has been jammed for the 10 years since it opened, while Plaza Pasadena lay like a beached whale, slowly dying of some mysterious toxin. The initiative to reinvent Plaza Pasadena came from its owner, TrizecHahn Corporation, a descendant of The Hahn Company, which built the mall. As one of the nation's largest developers of retail malls, TrizecHahn knew something was not working. Unlike most mall developers, which stick religiously to tried-and-true formulas, TrizecHahn has shown itself willing to take on non-traditional projects in urban settings. The Hollywood & Highland project — an unusual Hollywood retail and entertainment project with a Metro stop — is a case in point. (See CP&DR Places, July 1998.) Remarkably, this main-line mall developer came up with the idea of rejiggering the moribund Plaza Pasadena into an entertainment center, with retail, office and — in the tour-de-force of the project — 400 loft-style apartments above the retail space. The regional mall was to become an urban village. The commitment to housing is more than skin deep: in a total building program of just over 1 million square feet, 369,000 square feet are devoted to the apartments, while 478,826 square feet are given to the new multiplex and retail construction. The existing Macy's is 159,000 square feet. Making this mixed-use program work in the envelope of the retail pancake called for some bold strokes. Essentially, the strategy was almost to turn the mall inside out: nearly all mall merchants would have their own streetfronts. Instead of the internalized megastructure of the traditional mall, the Paseo project removed major parts of the mall to form three, freestanding buildings, which look like eight separate buildings. Of equal importance was the creation of pedestrian space in and around the mall. The new mall does not restore the grid to its pre-1980 form; the project still covers three city blocks. Yet the project does restore at least one of the goals of Pasadena's City Beautiful plan of 1915, prepared by architect Robert Bennett. By opening up a 70-foot-wide pedestrian walkway at Garfield Avenue, the architects at Ehrenkrantz, Eckstut & Kuhn Associates restored the view of the Pasadena City Auditorium from City Hall, three blocks north. This simple gesture goes miles in integrating the project part into the larger civic whole. An obvious difficulty with opening up the mall is what happens in the center of the block; here the architects have created a new pedestrian allee with a fountain court that the architects believe will echo a similar fountain courtyard at Pasadena City Hall. While the architecture and planning of the project are well out of the ordinary, the commercial decisions about the Paseo are equally non-formulaic. In its negotiations with the developers during the entitlement process, Pasadena city officials stressed that they did not want the new project to cannibalize merchants from the city's two other established commercial centers, Old Pasadena and Lake Street. The tenant mix, therefore, is not the usual shortlist of mall chain stores. With the exception of a Macy's outlet store (Macy's refused a buyout of its lease) the majority of tenants in Paseo Pasadena are local merchants, and the uses tend toward the neighborhood-serving variety of retail: a hardware store, an upscale grocery store, restaurants, and the like. At first glance, a preference for local merchants seems counter-intuitive for a multi-billion-dollar developer like TrizecHahn. Yet TrizecHahn claims to have pre-leased nearly 70% of the Paseo before construction has begun; lenders typically ask for 50% pre-leasing to finance mall construction. The happiest part of the project, in urban design terms, is that the Paseo Pasadena may achieve what Plaza Pasadena tried, and failed, to achieve for years: To create a link to the intense pedestrian activity at Old Pasadena. Thus, a missing piece of the puzzle of downtown Pasadena has been restored, and the city that was envisioned in 1915 may finally start coming into focus. Beyond Pasadena, the experience of turning a mall inside-out may be an important piece of research-and-development for TrizecHahn, which could conceivably create a new profit center in converting 1970's malls that don't work into urban villages that do. What remains remarkable to me is that a major mall developer was willing to undertake this project. Such a radical departure from standard practice needed a big developer with TrizecHahn's depth and credibility. If a community-based nonprofit organization had attempted the same project, Paseo may not have been taken seriously. Just as it took a conservative president like Nixon to re-establish diplomatic relations with Communist China, it may have taken a shopping-mall stalwart like TrizecHahn to find a new rapprochement between the retail industry and Main Street. Who knows? Maybe it will last longer than 20 years.