A decade after the passage of the "revenue neutrality" law, the incorporation of new cities appears to be back as a major planning issue in California. Now, however, there is a somewhat different twist. During the 1980s, almost every community with a strong retail base seemed to be incorporating. Then came the revenue neutrality law in 1992. Promoted by counties, the law was intended to ensure that a new city would not be created literally at the expense of a county. Incorporations slowed to a trickle because cityhood proponents were placed in a quandary. On the one hand, the community had to prove to the Local Agency Formation Commission that it would be fiscally viable on its own. On the other hand, proponents had to prove that the county would not be hurt financially by incorporation. (See , May 1999, April 1998, April 1993.) In the tax-squeezed, post-Proposition 13 world, this seemed like an unsolvable dilemma. But it turns out to be a dilemma that can be solved by one concept: alimony. Virtually all new cities today get around the revenue neutrality requirement simply by agreeing to turn some of their tax money back over to the county and, therefore, holding the county harmless. Alimony payments can be large or small — some are as little as a half-million dollars a year, others amount to tens of millions of dollars annually — but they appear to be the key to allowing new incorporations. As a result of this newfound reliance on alimony, incorporation efforts are reappearing. In the last few years, three cities in south Orange County and two cities in Sacramento County have incorporated. In February, the Santa Barbara suburb of Goleta finally became a city after decades of talking about it, partly by agreeing to pay big alimony ($5.8 million a year) to Santa Barbara County. This November, it appears there will be four incorporations on the ballot. Two have received national publicity — the secession attempts in Los Angeles by the San Fernando Valley (which would have to pay more than $100 million a year in alimony) and Hollywood. A third is in Rancho Cordova, another city being carved out of the vast swath of unincorporated Sacramento County suburbs. And the last is in Castro Valley in Alameda County, which, like Goleta, is a mature suburb that has been talking about incorporation for a long time. Although the secession efforts have received the most attention, the other two incorporations are more typical — and, for insiders, perhaps more interesting for the way that they represent the emerging trends in relations between cities and counties. Rancho Cordova, a working-class suburb of 55,000 people near the closed Mather Air Force Base east of Sacramento, will have to pay almost $7 million a year in alimony to Sacramento County. Incorporations in Sacramento County have a checkered history dating back to the Citrus Heights incorporation, which was held up for 10 years by opposition from county officials and labor unions (see , September 1998). In addition to steep alimony, the Rancho Cordova incorporation has an interesting wrinkle. The incorporation effort predates the "Hertzberg bill" (AB 2838, see , September 2000) that reformed the Local Agency Formation Commission process. For this reason, the agency that must hold a legally required protest hearing and formally place the measure on the ballot is not the LAFCO but Sacramento County, which has often been hostile to incorporations. Fearing opposition and foot-dragging that might knock the Rancho Cordova incorporation off the ballot this fall, Republican Assemblyman Anthony Pescetti, who lives in Rancho Cordova, has engaged in a classic cityhood maneuver: He is doing an end-run around local authorities by sponsoring AB 1138, which would require the county to make a decision in time to get incorporation on the fall ballot. Thus, no matter what the opposition, it appears likely that Rancho Cordova voters will decide in November. The Castro Valley incorporation has even more interesting wrinkles. This unincorporated area of 60,000 people has tried for cityhood before and failed, largely because proponents could not get enough signatures to reach the ballot. So when Oakland City Councilman Nat Miley ran for Alameda County supervisor, he promised the proponents that he would move incorporation forward. Miley joined the Board of Supervisors in January 2001 and, as a result — quite unlike the Sacramento experience — the county itself is the official applicant for the Castro Valley incorporation. Having the county as the lead proponent is both good and bad, said Alameda County LAFCO Executive Officer Lou Ann Texiera. On the one hand, it has moved incorporation forward quickly; on the other hand, because it was not a ground-up movement, the public is not as aware of the issues, and sometimes people get suspicious. The alimony deal in Castro Valley is of interest as well. To be fiscally viable, Castro Valley must take over the county's utility user tax — a tax that must be affirmed by city voters — and must also adopt a bed tax, which the county does not have. (The city will have to pay Alameda County around $600,000 a year in alimony.) So the measure on the ballot is not simply a vote to incorporate. It is a vote on extending the utility tax and imposing the bed tax. In other words, no utility and bed tax, no city. That is not exactly a tax increase — at least it is not a tax increase on the people who live in the city. But it is half-step back toward the old days prior to Proposition 13 when a city incorporation often meant a tax increase to support the new public entity. The rash of incorporations during the 1980s were "incorporations in the cheap" in the sense that the new cities simply transferred tax revenue from the counties and very often contracted back for services in a way that either enhanced critical services or saved money. It was simply a rearrangement of existing tax revenue. Today, however, communities seeking to incorporate will probably have to show more financial juice. In the face of alimony, potential new cities will probably have two choices. They will either need to have enough vacant land to grow their tax base in the future (the Rancho Cordova model) or they will have to take the hit for a few new taxes (the Castro Valley model). Simply put, if they can find a way to make the alimony payments, these communities can divorce themselves from the county. But if they are financially strapped — or unwilling to tax themselves — they may have to stay in a loveless governmental marriage.

The City of Malibu can regulate the use of land owned by the Santa Monica Mountains Conservancy, the Second District Court of Appeal has ruled. Although state agencies are typically exempt from local land use control, the court determined the state law that created the Conservancy keeps in tact the local police power. At issue is the use of a 22-acre ranch that Barbara Streisand donated to the Conservancy in 1993. The residentially zoned property on Ramirez Canyon Road in the City of Malibu contains five houses. The ranch has become the headquarters of the Mountains Recreation and Conservation Authority and serves the site of many revenue-raising events for the Conservancy, such as weddings, bar mitzvahs, and conferences. In 1999, the city filed a lawsuit seeking a declaration that the Conservancy was not immune from local regulation. The city also sought an injunction against commercial use of the property until an alleged violation of the California Coastal Act — alteration of a streambed on the property — was resolved. Ventura County Superior Court Judge Kent Kellegrew ruled for the Conservancy. Judge Kellegrew based his decision on Government Code § 53090 and § 53091. Those sections say that a "local agency" must comply with city and county building and zoning ordinances. And they define local agency as "an agency of the state for the local performance of governmental or proprietary function within limited boundaries." Kellegrew ruled that the Conservancy was not a local agency. The appellate court ignored the Government Code sections and instead looked to the Santa Monica Mountains Conservancy Act (Public Resources Code §§ 33000-33215). The court cited § 33008, which states in part, " t is necessary to enact the provisions of this division as a complement to the full exercise of the police power of local governments. … Nothing in this division shall supercede or limit a local government's exercise of the police power derived from any other provision of existing law or any law hereafter enacted." The Conservancy argued that the act — which cites substandard lots, incompatible uses and other land use problems — was intended to divest cities and counties of their land use control because piecemeal planning contributed to the problems. The Conservancy argued that the act's use of the word "complement" was intended to "encourage teamwork" among local governments and the Conservancy. But the court read the statute differently. "Use of the word ‘complement' with ‘full exercise of the police power' indicates a legislative intent to augment and enhance the City's ability to regulate Conservancy property rather than to restrict this power in any way," Presiding Justice Arthur Gilbert wrote for the Second District, Division Six. "The Conservancy's interpretation of § 33008 ignores a significant portion of the statute." In a modification to the original opinion, the court pointed to the act's legislative history as further support for the court's interpretation. "As just one example, the floor statement by the Act's legislative sponsor, then-Assemblyman Howard Berman, states that the proposed statute would ‘not … damage home rule in land use matters in the Santa Monica Mountains,'" Gilbert wrote. Berman went to say the act contained "no limitation on local jurisdictions' police powers." The Conservancy presented other arguments — that the city's ability to regulate land use would render the Conservancy's power illusory, and that the court's reading was in conflict with other parts of the act — but the Second District rejected the contentions. The court did not decide on the alleged violation of the Coastal Act. The Coastal Commission is reviewing that matter. The Case: , No. B151606, 02 C.D.O.S. 4165, 2002 DJDAR 5269 and 2002 DJDAR 6664. Filed May 14, 2002. Modified June 13, 2002. The Lawyers: For Malibu: Christi Hogin, city attorney, (310) 939-1636. For the Conservancy: Robert McMurry, Nossaman, Guthner, Knox & Elliott, (949) 833-7800.

Two rulings by the Ninth U.S. Circuit Court of Appeals regarding the setting of permissible pollution levels in surface waters offer a mixed review of the issue. Both cases involve the establishment of total maximum daily loads (TMDLs) as mandated by the Clean Water Act. In the first case, the court ruled against environmentalists who sued to force the federal government to set TMDLs for California because the state was slow to do so. But one month later, a different panel of Ninth Circuit judges ruled that federal regulators could establish a TMDL for the Garcia River in Mendocino County. Section 303(d) of the federal Clean Water Act mandates the TMDL process, which requires states to identify all bodies of water that do not meet water quality standards, and then create TMDLs for them. A TMDL calculates the total amount of a pollutant a river or lake can accept and still meet water quality standards. A TMDL is supposed to account for the cumulative impacts of multiple sources of pollution, including point sources, such as sewer plants and factories, and nonpoint sources, such as urban developments and farms. Although Congress approved the Clean Water Act in 1972, states ignored TMDLs for years while focusing on point sources (see , August 1999). Not until the 1990s did most states — including California — begin serious TMDL work. This delay in setting TMDLs was the subject of the first lawsuit, filed by San Francisco Baykeeper and other environmental groups. In a suit against the federal Environmental Protection Agency, the environmental groups argued that the state had failed to implement an adequate water pollution control program and had not set TMDLs, so the EPA had a duty to take over the TMDL effort. U.S. District Court Judge Charles Legge ruled against the environmentalists, and a unanimous three-judge panel of the Ninth Circuit upheld the decision. California did not submit any TMDL proposals for review by EPA until 1994 — 15 years after the first deadline contained in the Clean Water Act (§ 303(d), 33 U.S.C. § 1313(d)(2)). However, by May 2000, the state had completed about 50 TMDLs and was on schedule to finish TMDLs for all overly polluted waters within 12 years. Baykeeper argued that the state's failure to do anything until 1994 triggered a nondiscretionary duty by the EPA to set TMDLs for California. But the Ninth Circuit read § 303(d) differently. The court ruled that the EPA is mandated to act only if it disapproves a state's TMDL submission. Under the "constructive submission doctrine," only a state's complete failure to act triggers the EPA's duty to intercede, the court held. The court cited the Tenth Circuit's decision in , 264 F.3d 1017 (2001), regarding Oklahoma's failure to submit any TMDLs. The Tenth Circuit ruled that EPA did not have a duty to set that state's TMDLs because Oklahoma had established a schedule for completing the 1,400 TMDLs necessary by 2010. "We agree with the Tenth Circuit's decision in ," Justice Procter Hug Jr. wrote for the Ninth Circuit. "California has submitted at least 18 TMDLs and has established a schedule for completing its remaining TMDLs. Under the constructive submission doctrine, then, these actions on the part of California preclude any finding that the state has ‘clearly and unambiguously' decided not to submit any TMDLs." The court also rejected the environmentalists' argument that the EPA violated the Administrative Procedures Act mandate to avoid "unreasonable delay" because the EPA has no statutory duty in the first place. The second case involved the EPA's establishment of a TMDL for sediment for the Garcia River. Landowners Guido and Betty Pronsolino and several branches of the Farm Bureau sued. Their central argument was that because no point sources polluted the Garcia River, the EPA could not regulate nonpoint source pollution. District Court Judge William Alsup ruled against the landowners. A three-judge panel of the Ninth Circuit upheld the ruling. In 1995, environmental and fishermen's groups sued the EPA to force the setting of a TMDL for the Garcia River. To settle the suit, the EPA agreed to establish a TMDL by March 18, 1998. The agency apparently then turned over the process to the state, which completed a draft plan but missed the deadline for adoption. The EPA then established a sediment TMDL for the river. The Pronsolinos sought permission to log 800 acres they owned in the Garcia River watershed. To comply with the EPA's TMDL, the state permitted the logging on the condition that the Pronsolinos greatly limit the amount of sediment from the timber harvest site. Two other landowners also sought timber harvest permits and met similar conditions. They estimated the permit conditions would cost them between $750,000 and $10 million apiece. So they sued, challenging the EPA's authority to set TMDLs for a river that is polluted only by nonpoint sources, such as their logging operations. The Ninth Circuit ruled that the Clean Water Act does not make the distinction claimed by the landowners. "Water quality standards reflect a state's designated uses for a water body and do not depend in any way upon the source of the pollution," Judge Marsha Berzon wrote for the court. "Section 303(d) is structurally part of a set of provisions governing an interrelated goal-setting, information-gathering, and planning process that … applies without regard to the source of pollution." The Ninth Circuit also rejected the argument that the EPA had trod on land use control that properly belonged to the state. The TMDL, the court ruled, was simply a water quality standard. "It does not specify the load of pollutants that may be received from particular parcels of land or describe what measures the state should take to implement the TMDL," Berzon wrote. First Case: , No. 01-16111, 02 C.D.O.S. 3181, 2002 DJDAR, 3971 and 2002 DJDAR 4869. Filed April 15, 2002. Modified May 3, 2002. The Lawyers: For Baykeeper: Michael Lozeau, Earthjustice Legal Defense Fund, (415) 567-4141. For EPA: Sandra Slack Glover, Department of Justice, (202) 514-2000. Second Case: , No. 00-16026, 02 C.D.O.S. 4733, 2002 DJDAR 6059. Filed May 31, 2002. The Lawyers: For Pronsolino: Russell Eggert, Mayer, Brown, Row & Maw, (312) 782-0600. For EPA: Sean Donahue, Department of Justice, (202) 514-2000.

The state Department of Fish and Game's (DFG) review of development projects under the California Environmental Quality Act is lacking, according to a report by the Legislative Analyst's Office (LAO). And, if the department's budget is cut as proposed by the Davis administration, DFG's project reviews could suffer even more, the LAO concluded. "We found that the effectiveness of the department's CEQA review is limited by several factors, most significantly the department's lack of a formal process for prioritizing projects for review and determining their level of review," the LAO report states. The department could only estimate that it annually receives 8,000 to 13,000 CEQA documents, of which the department reviews about 40%. The LAO reported that the comments DFG did provide to local agencies were not based on a standard protocol and were not followed up. The Legislative Analyst was also sharply critical of the department's data gathering and management. "At the time this report was prepared, DFG could not provide basic information about its CEQA review activities (such as the number and type of documents it receives), thereby making both internal management and legislative oversight difficult. Specifically, without adequate tracking of its CEQA review activities, we question how the department can adequately budget for these activities and target its resources effectively," states the report. A 1990 law requires DFG to collect fees for its environmental reviews, and the department took in $1.8 million in fees during the 2000-01 fiscal year. But the LAO found that local agencies apply the fees inconsistently, and the money did not necessarily fund CEQA reviews. The LAO had four primary recommendations for the department: o Establish clear workload priorities. o Standardize the type of information provided in comments. o Improve data management. o Assess the effectiveness of a sample of widely used mitigation measures. The report is available on the Legislative Analyst's website at http://www.lao.ca.gov/2002/ceqa/CEQA_043002.html . * A housing element bill that drew intense opposition from local governments last year has returned to the Legislature with extensive amendments. However, cities and counties still oppose SB 910 (Dunn), which would order the state Controller's Office to fine jurisdictions that lack a certified housing element. The amendments introduced in May reflected months of work by a housing element working group. The bill would be the biggest overhaul of the housing element statute since the original law passed in 1980. Among other things, the bill would modify how fair-share housing allocations are made and require local governments to implement programs by a specific date. The Assembly Local Government Committee passed the amended bill in early June. However, the Assembly Committee on Housing and Community Department postponed two hearings scheduled for later in the month. Lawmakers are scheduled to resume consideration of SB 910 in August. * California will need $56 billion worth of infrastructure improvements during the next five years, according to a report from the Department of Finance. The Legislature mandated preparation of a five-year infrastructure plan in 1999. This is the first version, and it was released nearly six months late and with little publicity. The plan says the state needs $27.7 billion worth of transportation projects, $14.9 billion worth K-12 schools, $5.4 billion for higher education facilities, $2.4 billion of water projects, $1.5 billion worth of natural resources and environmental protection, and $1.1 billion of public safety facilities. Money for the projects would come from several sources: $21.1 billion in state bonds, $14.4 billion from dedicated revenues such as gasoline taxes, $13.6 billion in federal funding, $3.2 billion in lease-revenue bonds, $1.6 billion from the general fund, and $2 billion from smaller sources. While long-time infrastructure proponents, including the California Business Roundtable, called the report a good first step, skeptics questioned who would implement the plan. The plan is available on the Department of Finance website at http://www.dof.ca.gov:8080/html/capoutly/co%2Dhome.htm . * Gov. Gray Davis could complete four years in office without making substantive changes to the California Environmental Quality Act Guidelines. The Governor's Office of Planning and Research (OPR), and the Resources Agency have conducted stakeholder meetings and received about 300 suggestions for changes since beginning a review process in March 2000. To date, however, proposed revisions have not been released for public review and officials indicate the matter is not a priority for Davis administration leaders. The most substantive of the proposed revisions deal with mandatory findings of significance and the determination of significance, according to OPR. Other changes would be technical or would reflect recent statutory changes, which have been minimal. State officials plan to conduct several public workshops prior to adopting changes. The last major revisions to the CEQA Guidelines were adopted by the Wilson administration in 1998 (see , October 1998). A Sacramento County Superior Court threw out some of those revisions last year (see , June 2001), but an appeal is pending. The Resources Agency adopted minor technical revisions in February 2001. * The Legislative Analysts Office (LAO) has recommended lawmakers take an active role in the implementation of Proposition 40, the $2.6 billion parks and natural resources bond that California voters approve in March. The LAO urged the Legislature to: o Review grant criteria. o Monitor administrative costs and cap them at 5%. o Designate a lead agency, probably the Resources Agency, to oversee all Proposition 40 activities and reporting. o Require the governor's budget to display bond fund balances. o Consider in the budget process the future costs of maintaining and developing land acquired with bond funds. The report is available on the LAO website at http://www.lao.ca.gov/2002/prop_40/prop_40_050702.html . * A bill by U.S. Sen. Barbara Boxer that would designate 2.5 million acres in California as "wilderness" is receiving a great deal of attention. Many rural communities whose economies rely on timber, cattle grazing and mining, as well as motorized vehicle recreation, are opposed to S 2535, which Boxer introduced in May. Boxer says the measure is necessary to protect plant and animal species, and the watershed. Republicans in Congress have vowed to kill the proposal, but Boxer has indicated she will press the proposal for as long as it takes. A detailed map of the proposed wilderness areas is available on Boxer's website, http://boxer.senate.gov/newsroom/wilderness/index.html . * Save-the-Redwoods League signed an agreement in June with Stimson Lumber to purchase 25,000 acres of redwood forest in Del Norte County for $60 million. As part of the agreement, the League and Stimson will jointly pay the county $5 million to offset to loss of future revenues from timber harvesting. The state provided $42.5 million from various sources, including parks and water bonds, for the purchase. The U.S. Fish & Wildlife Service provided $2.5 million, and the private League contributed $15 million. After completing the deal, the League turned over the title to the state Department of Parks and Recreation, which already owns two adjacent parks. The acquisition is three times the size of the Headwaters Forest in Humboldt County, which the state purchased for $480 million in 1998. * About 40% of California's cities and counties have not updated their general plans comprehensively in at least 10 years, according to the Office of Planning and Research. In a letter to the state attorney general, OPR identified 197 cities and 27 counties that have not overhauled their general plans in a decade or more. That is about 20 more jurisdictions than were on the 10-year list in 2001, according to State Clearinghouse Director Terry Roberts. However, about 50 of the jurisdictions are working on comprehensive updates, she said. * The San Diego Unified Port District's development and leasing activities came under sharp criticism in a report by the State Auditor. The report says the Port District chose a hotel developer without seeking competitive proposals, setting up a deal that ultimately cost the district millions of dollars and more than two years of delay. The report also says that the port's lease rate for an existing hotel was below market rate, that the port's board failed to meet the state open meeting law on several occasions, and that a port commissioner failed to disclose an interest in a property. In June 1999, the port chose resort developer Douglas Manchester to build a large hotel adjacent to the convention center. The port district signed a contract with Manchester without issuing a request for proposals. The original contract was canceled in October 1999. The sides signed new agreement, although the port board did not publicly approve the amended contract, according to the state auditor. Manchester never broke ground and in June 2001, the port district agreed to pay him more than $5 million to end the contract and prevent him from suing the agency. The port district has since issued a request for qualifications. The port also did not solicit competitive proposals for two other hotel projects, according to the state auditor. The auditor found that the port district has charged below-market lease rates to the San Diego Marriott Hotel since October 1996 and, under contract, cannot change the rate until 2006. The below-market lease could cost the port district $7.4 million over 10 years. There was no public discussion of the below-market rate, according to the state auditor. In a brief response letter, Port District Executive Director Bruce Hollingsworth downplayed the state auditor's findings, calling the issues raised "relatively minor." The report is available on the state auditor's website, http://www.bsa.ca.gov/bsa/summaries/2001116.html . * The California Coastal Commission unanimously rejected a proposed 12-story hotel in downtown Oceanside. During their June meeting, commissioners rejected the city's proposed Local Coastal Plan amendment, which would have closed several streets to vehicle traffic to allow Manchester Resorts to build a 400-room resort (see , November 2000). "This is too dense, too big and doesn't consider public access," Commission Chairwoman Sara Wan said. * The Irvine City Council in June approved a general plan amendment and rezoning that allows for development of 12,350 housing units and 7.3 million square feet of office, retail, and industrial space on about 3,100 acres. The plan for the Orange County city's northern sphere of influence also designates 4,600 acres as permanent open space, including parkland. The Irvine Co. owns the land, which is next to the closed El Toro Marine Corps base. Annexation proceedings for a small portion of the Northern Sphere are already underway. * The Redondo Beach City Council has rescinded its approval of a specific plan for 150 acres of the waterfront. The council voted 3-2 in June to kill the "Heart of the City" plan after project opponents gathered enough signatures in only two weeks to force a referendum (see , January 2001). Opponents said the plan for infill and redevelopment — which would have allowed about 3,000 new residences and 600,000 square feet of commercial space — was simply too intense for the Southern California beach town. "A lot of people will be receptive to a scaled-down version," leading project opponent Chris Cagle told the . "I don't know how scaled down." * A proposal to build a football stadium in downtown Los Angeles vanished nearly as quickly as it surfaced. Anschutz Entertainment Group announced in mid-June that it was dropping the project, which had stirred protest from Los Angeles County, taxpayer advocates, the Los Angeles Memorial Coliseum Commission, and even some sports writers. "We just didn't want to go through an ugly political process on this issue," AEG President Tim Leiweke told the . The announcement came less than a month after Mayor James Hahn and city councilmembers backed creation of an 879-acre downtown redevelopment project area and suggested they might support public financing for the football stadium (see , June 2002). * A 2.2 million-square-foot office and retail development in El Segundo won voters' approval during a referendum in June. By a two-to-one ratio, voters upheld the City Council's approval of a Thomas Properties Group project on the former Rockwell International factory site near Los Angeles International Airport. About 31% of El Segundo voters turned out for the one-issue special election. Kilroy Realty, a developer whose headquarters is across the street from the site, has tried to block the Thomas project by suing the city and funding the referendum effort (see , May 2002). * The Gilroy City Council has approved a general plan update that, in part, designates 664 acres of farmland for development of high-tech campuses (see , January 2002). The council voted 5-2 in June to approve the "660 plan." The city can now proceed with an annexation proposal, although the Santa Clara County Local Agency Formation Commission has already raised questions about the loss of farmland, the potential for flooding and an abundance of land already zoned for industrial development. Three homeowners groups have sued the City of Folsom over the city's recent decision to rezone 128 acres for development of about 2,900 affordable housing units. In April, Folsom officials signed an agreement with Legal Services of Northern California, which earlier won a lawsuit because none of the 7,000 housing units the city approved during the last decade were for low-income people (see , May 2002, January 2002). After signing the agreement, the city identified 64 properties that could be rezoned for affordable housing development. That list caused an immediate not-in-my-backyard backlash from homeowners in the eastern Sacramento County town. Their lawsuit contends the city's agreement was made without public input, would harm public health and safety, and would degrade the environment. * A proposed Elk Grove shopping mall opposed by the state Department of Conservation has been blocked by a Sacramento County superior court judge. The developer of the proposed 295-acre Lent Ranch shopping mall, Martin Feletto, said he would appeal. Judge Lloyd Connelly ruled that the city should have considered the feasibility of creating a permanent agricultural buffer south of the development site as a way of mitigating the loss of prime farmland — the issue that caused the state to sue the two-year-old city. Connolly also ruled the city did not adequately address the risks associated with building near two large propane storage tanks. *

One dim memory I have from sixth grade biology is that of the oxpecker, a small bird that sits on the back of the rhinoceros. Normally a dominating and irascible beast, the rhino tolerates the oxpecker because the bird does something the rhino cannot do for herself: relieve her of all the troublesome insects that worry her neck, back and hindquarters. As most sixth graders know, this relationship is an example of symbiosis, or the cooperation of two organisms to their mutual benefit. One company that has developed a symbiotic relationship with several California cities is Big League Dreams, a Mira Loma-based concern that operates publicly owned ball fields for youth sports and amateur athletics. The company is 38% owned by William E. Simon & Sons, the investment firm headed by Republican gubernatorial candidate Bill Simon Jr. The facilities are large complexes that cover anywhere from 25 to 105 acres apiece. They feature baseball and softball fields designed to resemble, on a miniature scale, the nostalgic wooden-bleacher baseball parks of yesteryear, such as Boston's Fenway Park or Chicago's Wrigley Field. So far, Cathedral City and Mira Loma, both in Riverside County, have built Big League Dreams facilities, while new complexes are under construction in Chino Hills (San Bernardino County), Redding (Shasta County) and, most recently, in Redlands (San Bernardino). General Manager Rick Odekirk claims two more California cities are about to approve deals with his company, which has marketed itself to municipalities aggressively for several years. "We are clearly the most popular sports-club development company in America, by quite a distance," Odekirk crowed during a recent interview, adding that the company has "quite a long list of cities requesting our presence." For Redlands, the primary benefits would be "being able to supply our residents with a nice-quality facility for softball and other things that we don't really have here," said Ron Mutter, the city's public works director. "We turn a lot of teams away." Beyond nostalgia, Big League Dreams has a design formula for its franchises. Each complex basically consists of a ring of baseball and softball diamonds, including "replicas" of historic baseball parks, arranged around a central "hub" consisting of an enclosed basketball court on one side and a clubhouse with a restaurant on the other. Individual cities can expand the menu of sports facilities, depending on the land available, to soccer fields, beach volleyball, tennis courts and skateboard parks. Big League's business model is designed with equal care. Cities can lease the city-owned facilities to the company, which assumes all the risk and all the upside. In the case of Redlands, however, the city wanted some of the upside, as well, and entered into a revenue-sharing agreement last December with the private company. At first glance, such an arrangement may seem unremarkable: After all, many cities routinely contract with private operators to run city-owned concert halls and sports stadiums. What is remarkable about the deal between Redlands and Big League Dreams is the intricate interdependency between the public entity and the sports club operator. To understand the symbiotic ingenuity of the Big League Dreams business model, let us take a closer look at the Redlands deal. The city plans to build the $7 million, 23-acre facility entirely on public land, using public money, including a $5.25 million grant from the state and revenues from a local development impact fee. Big League Dreams supplies the basic design concept, but otherwise stays out of the construction process. By doing so, the company avoids what are the most difficult aspects of real estate development: land assembly, entitlement and construction finance. When construction is finished next year, the company will have a facility that was built to its specifications and a 40-year contract to operate it. At that point, the city becomes almost a passive partner. But that is acceptable to the city because it expects to make money as revenues grow. Redlands will pay a one-time $300,000 licensing fee to Big League, plus an additional $300,000 annual operations fee for the next 40 years for maintenance. Additionally, the city will pay the company an "incentive fee" that is due if Big League Dreams achieves revenue goals. The incentive fee ranges from $2,203 in Year 3 to $445,527 by Year 40. On its own account, the city expects net income (that is, after expenses and fees) to start at $126,512 by Year 3 and rise impressively to $1.19 million by Year 40. While that is not a huge sum, it does equal the amount of sales tax revenue the city would receive from a medium-sized retailer. These revenues will not be achieved by squeezing fees out of a captive public, according to Big League Dreams' Odekirk. He contends that people will pay no more to rent softball diamonds at the sports complex than they otherwise would have paid to the local parks and rec department to rent a publicly operated field. Instead, most revenues come from fees paid by adult softball teams and from corporate sponsorships for both youth sports and softball teams. Big League Dreams even employs full-time fundraisers to elicit sponsorships from local businesses and corporations. The city does what it does best— financing and building public works projects — while the private company does it what does best — running and promoting a business. Assuming that Big League Dreams can make its numbers, the deal works well for both sides. I do not pretend to understand the risks, although the popularity of youth sports and amateur athletics suggests that sports clubs have a market. If the risks are tolerable — and for the foreseeable future they may be — then the civic rhinoceros of Redlands may be content to carry this little bird on its back.

WASHINGTON _ A U.S. Supreme Court decision tentatively upholding a Los Angeles zoning ordinance banning multiple adult businesses at the same location left lawyers for both sides predicting victory at an eventual trial. The high court's 5-4 decision reversed a ruling by the Ninth U.S. Circuit Court of Appeals in favor of two businesses that ran afoul of the 1983 ordinance by operating X-rated bookstores and video arcades under the same roofs (see CP&DR Legal Digest, September 2000). The Supreme Court ruled the city could "reasonably rely" on a six-year-old study of crime rates as a basis for adopting the ban on multiple adult businesses. "It is rational for the city to infer that reducing the concentration of adult operations within a neighborhood, whether within separate establishments or in one large establishment, will reduce crime rates," Justice Sandra Day O'Connor wrote in the plurality opinion. An attorney who filed an amicus brief supporting the city ordinance on behalf of the American Planning Association said the ruling allows cities to continue adopting regulations on adult businesses. "But," said Scottsdale, Arizona, lawyer Scott Bergthold, "they're going to have to defend second effects rationales more vigorously than they have in the past." At issue was whether the city had enough proof that the combination of ostensibly separate adult businesses contributed to crime and prostitution for the city to approve the regulation. A federal judge in Los Angeles and then the Ninth Circuit both said no. But those rulings came in summary judgments issued without a full trial. In the high court's May 13 decision, five justices said the city had at least enough evidence to survive summary judgment and deserved a full trial. But in a pivotal concurring opinion, Justice Anthony M. Kennedy said the ordinance might still be struck down if the city's rationale "can be proved unsound at trial." Michael Klekner, a deputy Los Angeles city attorney, voiced confidence that the city's "substantial" evidence will hold up during a full trial and likely appeal. "I've always thought that if we got to trial, we would prevail," Klekner said. But John Weston, who represented the two businesses, said the court's fractured ruling will require courts to "engage in meaningful scrutiny and evaluation" of local zoning ordinances limiting location of adult businesses. "From the standpoint of First Amendment law, the opinion is quite extraordinary and remarkable," Weston said. Los Angeles set out to limit the concentrations of X-rated businesses in Hollywood with a zoning ordinance adopted in 1978 that prohibited adult entertainment establishments within 1,000 feet of each other or within 500 feet of a school, park, or religious institution. Five years later, the city closed what it called a loophole in the original ordinance by adding a provision specifically prohibiting more than one adult entertainment business in the same building. Adult zoning ordinances have been widely enacted in California and elsewhere since the Supreme Court gave them a constitutional green light in a pair of decisions: Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), and Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). Both decisions upheld adult zoning ordinances — by 5-4 and 6-3 votes, respectively — on the ground that they helped cities combat "undesirable secondary effects" of X-rated businesses without infringing too much on expression protected by the First Amendment. In enacting its ordinance, Los Angeles relied on a police department study in 1977 that found robbery and prostitution had grown much faster in Hollywood than in the city as a whole. The city did no additional study before enacting the 1983 ordinance amendment. The city enforced the multiple-use ban in 1995 against two businesses that ran combined bookstores/video arcades — Alameda Books and Highland Books. When the shops challenged the ordinance on constitutional grounds, U.S. District Court Judge Dean Pregerson ruled that the ordinance was subject to "strict scrutiny" — the most stringent constitutional standard of review — and that the city had failed to show a "compelling interest" needed to uphold it. The Ninth Circuit agreed but on a slightly different ground. Unlike Pregerson, the Ninth Circuit panel ruled that the law was "content-neutral" and was subject only to "intermediate scrutiny." But the panel still found the city's evidence insufficient to uphold the ordinance even under the less stringent standard. The high court's plurality opinion said that the city did have a "substantial interest" in enacting the multiple-use ban and that it could "reasonably rely" on the 1977 study in attributing increased crime and prostitution to multiple-use adult establishments. The court's three most conservative members joined O'Connor's opinion: Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas. In an opinion concurring only in the judgment, the centrist-leaning conservative Kennedy tentatively agreed. "Dispersing two adult businesses under one roof is reasonably likely to cause a substantial reduction in secondary effects while reducing speech very little," Kennedy said. At the start of his opinion, however, Kennedy set out what Weston said amounts to a significant tightening of the test for upholding adult zoning laws. "A zoning measure can be consistent with the First Amendment," Kennedy wrote, "if it is likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech." Said Weston, "If the reduction in speech is anything more than trivial, it's no good. That's quite remarkable." Two lawyers who advise cities on the issue, however, saw less evidence of a shift in the decision. "The plurality's opinion goes out of its way to say that it's not changing the law," said Jeff Goldfarb of Rutan & Tucker in Costa Mesa. As for Kennedy's opinion, Goldfarb said Weston was "incorrect" if he was suggesting that an adult zoning ordinance can be upheld only if it is "the least restrictive means" available to serve the city's interest. According to Bergthold, who wrote the APA brief, "the final standard is somewhere in between" the O'Connor and Kennedy opinions. For the dissenters, Justice David H. Souter said the city's 1977 study "provides no support" for breaking up what he called "a commercially natural, if not universal" combination of adult businesses. Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer joined his opinion. The Case: City of Los Angeles v. Alameda Books, Inc., No. 00-799, 02 C.D.O.S. 4067, 2002 DJDAR 5167. Filed May 13, 2002. The Lawyers: For City of Los Angeles: Michael Klekner, deputy city attorney, (213) 485-5420. For Alameda Books: John Weston, Weston, Garrou & Dewitt, (310) 442 0072. Kenneth Jost, formerly editor of the Los Angeles Daily Journal, is staff writer for Congressional Quarterly and author of The Supreme Court Yearbook.

The State Supreme Court has accepted for review a Proposition 218 case from Shasta County. All seven justices voted to review the decision in Richmond v. Shasta Community Services District, No. S105078 (see CP&DR Legal Digest, April 2002). In February, the Third District Court of Appeal ruled that the district's water connection fee was a development fee and, therefore, was not subject to the constraints of Proposition 218. However, the court ruled that a "fire suppression" assessment levied at the same time as the water connection fee was subject to Proposition 218 and required two-thirds voter approval. The difference, the court held, was that the water connection fee was based on the cost of providing new capacity and the projected number of eventual water users. The fire fee, however, was a general governmental assessment, which must be approved by voters. The appellate court's decision appeared to satisfy no one. The League of California Cities sought to have the opinion depublished. The developers who filed the lawsuit sought a review by the state high court. No date has been set yet for oral arguments.

Sacramento County properly used 1997 conditions as the baseline for the environmental review of an airport project, even though the general aviation airport had been operating and growing without county permits since the early 1970s, the Third District Court of Appeal has ruled. The court rejected an argument from airport neighbors that conditions in effect in 1970 — the year the California Environmental Quality Act was adopted — should serve as the baseline because the airport had never received environmental scrutiny. " County followed the required procedures," Justice Connie Callahan wrote for the unanimous three-judge panel. "The initial study represents an objective, good faith effort to comply with CEQA. It describes the existing environmental setting, and the limited impact of the proposed expansion project." The facts of the case are complicated. An airport has operated at the site of Sunset Skyranch Airport in Elk Grove since 1934. In 1971, Daniel Lang acquired the property, which then consisted of a dirt landing strip, one hangar and four or five airplanes. That same year, the Sacramento County Board of Supervisors approved a conditional use permit for "a private use airstrip and ancillary uses." The use permit was good for two years but was never renewed. A 1972 county general plan amendment designated the site for a public use airport. Also in 1972, the state issued an airport permit for the property, and the permit has been kept active since then. In 1988, the Airport Land Use Commission of Sacramento, Sutter, Yolo and Yuba Counties (ALUC) adopted the Sunset Skyranch Airport Comprehensive Land Use Plan. The ALUC declared the project exempt from CEQA, a decision no one challenged. In 1989, the county denied the airport a business license. The following year, the county planning director rejected the airport's application for a certificate of nonconforming use. The county also initiated two zoning enforcement actions to require the airport to get a conditional use permit. Meanwhile, the ALUC amended the comprehensive land use plan in 1992. By that time, the runway had been paved, 71 aircraft were based on the airport (including 22 in hangars) and annual operations were estimated at 30,000 flights and landings. The ALUC adopted a negative declaration because the agency determined the plan amendment would not have a significant effect on the environment. Again, no one contested the negative declaration. Lang and Sunset Skyranch Pilots Association finally applied to the county for a conditional use permit in October 1997. They said they wanted to secure the long-term right to continue operations, acquire building permits for existing structures, and get permission to build about 24 additional hangars. The county found the project would not have a significant effect on the environment and issued a negative declaration. This time, neighbors Kenneth Fat and Wing Fat challenged the negative declaration during the comment period. They argued the county failed to consider the impact of noise and possible crashes on future residents, and complained that the county did not provide for mitigation. The county Planning Commission and, on appeal, the Board of Supervisors voted for the use permit and the negative declaration. The Fats filed a lawsuit and won at the Sacramento County Superior Court. Judge James Ford ordered the county not to approve the conditional use permit "until the County conducts a CEQA review that analyzes the environmental impacts resulting from the Airport's past from 1970 to the present." Ford did not rule on any other issues. The county and the pilots association appealed to the Third District, which reversed the lower court. There is conflicting case law regarding the setting of the baseline for environmental reviews. In Lewis v. Seventeenth Dist. Agricultural Assn. , (1985) Cal.App.3d 823, the court set the baseline at a time prior to review of a project. That case involved residents' objections to operation of Ernie Purssell Memorial Speedway at the Nevada County Fairgrounds. The racetrack had been upgraded 12 years earlier without environmental review. The court decided the racetrack was not categorically exempt, as the fairgrounds argued, and the court ordered the fairgrounds to cancel a contact for auto racing until an environmental impact report on the upgrades was completed. However, the court in Bloom v. McGurk , (1994) 26 Cal.App.4th 1307, took a different approach — one favored by the Third District in the current airport dispute. Bloom involved Integrated Environmental Systems (IES), which transported hazardous waste for years without proper state permits. The Bloom court decided that the baseline for CEQA purposes was the time IES applied to the state for permits, not the time CEQA was enacted. One of the most recent baseline cases, Riverwatch v. County of San Diego , (1999) 76 Cal.App.4th 1428 (see CP&DR Legal Digest , February 2000), seemed to bolster the Bloom approach. Riverwatch , like the present case, also dealt with prior unpermitted activity. The Riverwatch court ruled that CEQA review was not the proper forum to address the prior activity. Callahan quoted from Riverwatch : " e believe a more prudent method of dealing with alleged prior illegality is to rely in the first instance on direct enforcement by the agencies charged with the responsibility of doing so, and second, to rely on such enforcing agencies to comment in the EIR process on the impact any new project may have on their enforcement activities." Bloom and Riverwatch supported Sacramento County's decision on the baseline, the court ruled. Further bolstering the county's position was § 15125 subdivision (a) of the CEQA Guidelines, which provides the general rule that "environmental impacts should be examined in light of the environment as it exists when a project is approved." The area surrounding the airport has remained largely agricultural, the court noted. Plus, the ALUC conducted an environmental review in 1992, and the resulting negative declaration was never challenged, the court added. The Case: Fat v. County of Sacramento , No. C037610, 02 C.D.O.S. 3642, 2002 DJDAR 4646. Filed April 2, 2002. Ordered published April 26, 2002. The Lawyers: For Fat: John Gabrielli, (530) 753-0869. For the county: Diane McElhern, county counsel's office, (916) 874-5544.

The City of Palm Springs added improper conditions to a subdivision map approval when it considered a property owner's proposal to subdivide a mobile home park so that the park could be converted to resident-owned, the Fourth District Court of Appeal has ruled. In approving the project, the City Council determined the subdivision map would not become effective until about one-third of the lots were sold. The council also required that the sale price of lots be determined by an appraiser paid by the project proponent, and that the current owner provide more than $1 million in assistance to help residents purchase their lots. The court ruled the city only had authority to determine if the project was consistent with the Subdivision Map Act, and the city could not add the three conditions. The court directed the City Council to reconsider the application for its consistency with the appropriate statute. The dispute concerned El Dorado Mobile Country Club, whose owner and residents have been in court for a variety of disputes over the years. In 1993, owner El Dorado Palm Springs Ltd. (known as El Dorado) filed an application to subdivide the 377 units within the park. The application was the first step in converting the park to a resident-owned facility. The city finally accepted the application as complete in 1999. If approved, the park would no longer be subject to the city's mobile home rent control regulations, which do not apply to resident-owned parks. Typically, residents are behind the conversion of a mobile home park to resident-owned. But in this case, the property owner proposed the conversion. The City Council feared the conversion was a sham to avoid rent control regulations, so it added conditions to protect residents. El Dorado sued the city. Riverside County Superior Court Judge Lawrence Fry ruled for the city — a decision the unanimous three-judge appellate panel overturned. The central issue in the case was what section of the Subdivision Map Act governed the city's consideration of the tentative map application. The park owner argued that Government Code § 66427.5 contained the controlling language. It limits the City Council's consideration to determination of the tentative map application's compliance with that section. The city and the park residents argued that § 66427.4, subdivision (c) governed the matter. That subdivision authorizes the city to require the owner "to take steps to mitigate any adverse impact of the conversion on the ability of displaced mobilehome park residents to find adequate space in a mobilehome park." The Fourth District ruled that El Dorado was correct and § 66427.5 applied. Both sections apply to conversions of mobile home parks. But the city's favored section applies only if the park is being converted to another use, such as a shopping center, the court ruled. " change in ownership is not a change in use," the court ruled. The park owner's preferred section (§ 66427.5) states that it applies to "the conversion of a rental mobilehome park to resident ownership." " he City Council, in acting on El Dorado's application for approval of the tentative subdivision map, only had the power to determine if the El Dorado had complied with the requirements of the section. (§ 66427.5, subd. (d).) It therefore had no power to impose the three further mitigating conditions on El Dorado," Justice Thomas Hollenhorst wrote for the court. The court agreed that the law could be used for sham conversions that would allow the property owner to avoid local rent control ordinances. That loophole "may be a legislative oversight," but it does exist. Still, the applicable section offers some protection to residents. The law requires the subdivider to offer existing tenants the option to purchase their lots or remain as tenants. And the law requires that rent increases to market levels be phased in over four years, the court noted. As for when the conversion is complete — and the local rent control ordinances no longer apply — the court said the conversion occurs when the first parcel of the new subdivision is sold. The court pointed to the state Supreme Court's decision in City of West Hollywood v. Beverly Towers, Inc. , (1991) 52 Ca.3d 1184 (see CP&DR Court Cases , April 1991). In that case, the Supreme Court "found the decisive date was the date the developer secures final subdivision map approval and permission from the Department of Real Estate to sell units. The court also noted that a single conveyance completes the conversion process under Civil Code § 1352," Hollenhorst wrote. The city does not have authority to change that date. In other issues, the court rejected El Dorado's argument that its tentative map application was "deemed approved" because the city had not acted by the statutory deadline. The court ruled that although the City Council adopted a resolution one month after the deadline, the City Council had voted its intent by the deadline. Also, the court rejected the argument from residents that El Dorado, when it applied for a tentative map, had to disclose the tentative purchase price for parcels and the market rents it will charge. The applicable section of the Subdivision Map Act does not require such disclosure, the court held. The Case: El Dorado Palm Springs, Ltd., v. City of Palm Springs , No. E029198, 02 C.D.O.S. 2418, 2002 DJDAR 2937. Filed March 14, 2002. The Lawyers: For El Dorado: James Colbert III, O'Melveny & Myers, (213) 430-6000. For the city: William Wynder, Burke, Williams & Sorensen, (949) 863-3363. For the residents: Robert McFadden, McFadden & Associates, (760) 327-4731.

Del Paso Heights is a neighborhood frozen in time. With its large lots and streets without sidewalks or storm drains, the 1,500-acre neighborhood has a kind of shabby charm that recalls its former role as the suburban fringe of the long-gone City of North Sacramento. The neighborhood seems suspended at the moment just before a rural or quasi-rural area undergoes urbanization — that is, when large lots get subdivided for single-family housing, when streets get paved and the casual "house here, house there" of farm-oriented land use gives way to a regular system of streets and structures. The problem is that Del Paso Heights is no longer a suburban fringe. Since Sacramento annexed North Sacramento in the 1960s, Del Paso Heights has found itself encased in the larger city. The area's lack of urban design became a drawback. Moreover, the lack of a coherent street system combined with lots as large as two acres made development difficult. As a result, Del Paso Heights is both rundown and underdeveloped. Many of the existing houses date from the early 1940s, when the area was a neighborhood of working-class people who were employed at McClellan Air Force Base a few miles to the northeast. Currently, many Del Paso Heights homes and apartment buildings are dilapidated or poorly maintained, and the area has a high level of absentee ownership. Both crime and unemployment rates are well above average. In 1973, the city designated Del Paso Heights a redevelopment area and spent the next two decades improving some streets, and sponsoring small infill housing projects, including many apartment buildings. In 1996, the city won a $10.5 million grant from the Department of Housing and Urban Development to redesign the community as a "home ownership zone." The HUD grant, which funded land acquisition and new infrastructure, also specified a "neo-traditional" style for the community. In 1997, the city hired the Sacramento office Carter & Burgess, a national planning firm, to create a master plan for a 150-area within Del Paso Heights to be called Del Paso Nuevo. The project was nothing less than a complete remake of the entire area, including streets, sewers, parks and several flood detention basins for unchannelized Arcade Creek. To promote homebuilding and commercial development, the city is currently assembling about 60 of the 200 parcels in the area, while trying to minimize the use of eminent domain. The goal is to build 300 new homes, while promoting programs to fix up existing houses. A private homebuilder has just finished 54 single-family homes and plans to build 23 more. A third of the new homebuyers are existing Del Paso Heights residents, which testifies to the effectiveness of a policy to prevent the wholesale displacement of local residents. The master plan for Del Paso Nuevo is straightforward, even though there are subtleties in the plan that are not visible at first glance. The planners have established a more or less regular street grid, bordered by Arcade Creek to the south. The Sacramento Northern Parkway, a landscaped bike path fashioned from an old rail easement, lines the eastern boundary. The high-density and community-oriented uses are concentrated on the west, where we find neighborhood retail, civic buildings, churches and multi-family buildings, with a maximum density of 15 dwelling units per acre. In the single-family areas, homebuilders are now constructing familiar, neo-trad housing with front porches and recessed garages. Street trees — including sycamores, California oak and Eastern oaks — outline the streets, which is common practice in Sacramento. The most dramatic form in the site plan, perhaps, is the seven-acre Nuevo Park, which intrudes into the civic area, both to provide a pleasant green backdrop and to slow traffic through this potentially crowded area. Not shown in the master plan, although almost as important, are the linkages to the city at large. The main north-south linkage is Norwood Avenue on the western edge of Del Paso Nuevo, connecting the new neighborhood to Interstate 80 on the north and the emerging Uptown Arts District to the south. The major east-west connection is Silver Eagle Road, which links to the South Natomas area via the East Main Canal bridge. An existing light-rail station is three-quarters of a mile away. Beyond the automobile, the area also has bike paths, including the north-south links along the Northern Parkway, and east-west along Arcade Creek, from which bicyclists can eventually access the heavily used regional bike paths along the American River. The most ingenious part of the plan, arguably, is the dual role played by the two parks as both recreational areas and detention basins. The more active park in the center of the plan provides a public amphitheater that steps down to a bandstand. Less formal is the northeastern portion of the same park, which is a slope planted with native species and described officially as "maintenance free," (although Jeff Townsend, managing principal of Carter & Burgess, is quick to add that there is no such thing as a maintenance-free park). This slope provides a diagram of Sacramento plant life, ranging from wetlands species at the base to the dry, grassy, drought resistant plants on the upper slope. A path of broken concrete winds its way down this slope, and does double duty as a pathway and as a kind of dam that captures sediment during flooding. If the urbanization of Del Paso Nuevo has brought about the loss of a certain nostalgic landscape of formless suburbia, there have been some positive returns. A neighborhood that was an isolated island within Sacramento is being integrated into the circulation, and presumably the social life, of the city as a whole. It is particularly gratifying to see the way that urban development and environmental repair — activities that are often at loggerheads — have been brought together in the design and planning process. Beyond unbinding a trapped neighborhood, Del Paso Nuevo is a welcome example of multi-purpose design in an urban area that is enlarging its range of possibilities.

Water bonds are as familiar as summer reruns to California voters, who have considered at least 16 of them on statewide ballots since 1960 — the year voters narrowly approved spending $1.75 billion to build the State Water Project. On November 5, however, the electorate is likely to consider a water bond measure that is different from all predecessors. Instead of being drafted by legislators and lobbyists in Capitol hallways and committee rooms, the Water Quality, Supply and Safe Drinking Water Act of 2002 is the product of citizen initiative. Sponsors submitted more than 750,000 signatures in April, and Secretary of State Bill Jones certified the initiative for the ballot a month later. Statewide water bond measures usually creep along a tortuous and cryptic political path outlined by lobbyists and veteran staffers. There are arcane pitfalls to avoid and scores of competing interests to satisfy — farms and cities, fish lovers and dam builders, rural and urban water agencies — if a proposal is to avoid fatal opposition. Complex, behind-the-scenes negotiations are standard procedure. The citizen initiative process, in contrast, tends to reward advocates whose argument can be conveyed effectively during a quick pitch for petition signatures in shopping mall parking lots. Statewide water planning does not typically lend itself to this sort of simplification. The Water Quality, Supply and Safe Drinking Water Act of 2002 also differs from most water bonds in the way it blends funding for water projects with money for habitat conservation. And, although people are calling it a "water bond," the measure would do little to procure new supplies. Most of the funding categories focus on enabling users to get more mileage out of existing supplies. The 12 legislative water bond measures approved by voters during the 1960s, '70s and '80s focused exclusively on building things: dams, canals, sewage treatment and reclamation plants, purification facilities, pipelines, pumping stations. None explicitly allocated a single dollar to ecological programs. That began to change in 1996 with Proposition 204, which allocated more than $500 million to ecological restoration, and fish and wildlife programs primarily associated with the Cal-Fed Bay-Delta Program. Cal-Fed is a state and federal effort to reverse the decline in sensitive fish and wildlife populations in the Bay-Delta region while also increasing the quality and reliability of the water supply diverted from the Delta to farms and cities. The linkage between water supply and environmental protection continued in 2000 when California voters approved Proposition 13, a $1.97 billion bond measure that provided $250 million for Bay-Delta fish and wildlife programs, and $468 million for watershed restoration and protection elsewhere. The logic of this linkage is clear. In an ecosystem compromised by urban development, farming and dams, water often is degraded and costly to make drinkable, and fish and wildlife populations often are endangered, requiring that diversions be reduced or managed differently to keep imperiled species from suffering further harm. The initiative awaiting certification by Secretary of State Bill Jones for this November continues this merger of water-supply and environmental concerns. It is, in effect, a hybrid of three major issues: Cal-Fed, the California 4.4 Plan (under which the state must reduce diversions from the Colorado River to its legal entitlement of 4.4 million acre-feet a year), and protection and restoration of watershed and coastal wetlands. Joe Caves, the veteran Sacramento lobbyist responsible for the initiative, says the initiative started out to be a coastal watershed and wetlands campaign. He and the environmental groups that are the initiative's primary proponents decided to broaden it to include water-supply components when they realized that funding for Cal-Fed was drying up, and that it would take too long to coax a conventional water bond through the Legislature. "Proposition 13 took about three years to negotiate, hammer out and work through," Caves noted. The state can't wait that long. In 2000, California and federal officials committed to a seven-year funding plan for costly improvements to the Bay-Delta system. Although the state already has committed or spent hundreds of millions of dollars, its full obligation is likely to approach $5 billion. Propositions 204 and 13 provided money for Cal-Fed, but not nearly enough; lawmakers had been dipping into the general fund to supplement the bond funds. With the state facing a huge budget deficit this year, the general fund is no longer an option. So, after consulting with staff of The Nature Conservancy, the Audubon Society, Heal the Bay and other environmental groups — as well as the Metropolitan Water District, which is bearing the brunt of California's effort to reduce Colorado River diversions — Caves and his staff drafted, circulated and apparently qualified a water bond initiative. The state is in the second year of the seven-year Cal-Fed process; Caves said his initiative fully funds the state's share of programs in years four and five. The initiative's $3.44 billion breaks down this way: Coastal watershed and wetland protection ($950 million): * Coastal watershed protection * San Francisco Bay wetland protection and restoration * Southern California wetland and watershed protection CAL-FED Bay-Delta program ($825 million): * Storage planning and studies * Water conveyance * Delta levee restoration * Interim water supply reliability * Ecosystem restoration * Watershed protection * Conservation and efficiency projects Integrated regional water management ($640 million): * Water supply reliability, storm water capture * Wetland restoration, pollution reduction * Groundwater recharge, salt removal and reclamation * Water banking and exchange * Integrated flood management * Fish and wildlife enhancement Safe drinking water ($435 million): * Small system upgrades * Treatment and contaminant removal * Drinking water source protection * Revolving loan fund Clean water and water quality ($370 million): * Pollution prevention, reclamation, blending and exchange * River parkways that provide water quality benefits * Lake Tahoe water quality projects * Clean beaches * Sierra Nevada water quality projects Contaminant and salt removal technologies ($100 million): * Desalination projects * Treatment projects for MTBE, arsenic, chromium, etc. Colorado River ($70 million): * Canal lining * Ecosystem restoration Water security ($50 million): * Monitoring and early warning systems * Protective structures * Emergency interconnections * Communication systems Contacts: Joe Caves: (916) 558-1516. Text of the Water Quality, Supply and Safe Drinking Water Act of 2002: www.pcl.org/bonds/water/text.html Cal-Fed Program: http://calfed.ca.gov/

An initiative that would require Nevada County to pay property owners if a land use regulation diminishes property value appears headed for the November ballot. Both opponents and supporters of the initiative expect that Nevada County will approve the initiative — and that it could lead to similar efforts in other parts of California, especially in conservative rural counties. The initiative would establish a process for landowners to present claims to Nevada County Superior Court for reimbursement if the landowner believed a county regulation restricted the use or utility of property. The use or utility of property would be based on existing zoning, said Russell Steele, chairman of Citizens for Fair and Balanced Land-Use. The Superior Court would award claims based on a real estate appraisal. A number of organizations on both sides of the "takings" debate are at least monitoring the Nevada County election because of its potential to set a precedent. The American Planning Association's California Chapter and national APA leaders are "watching in horror" but have not taken any active role yet, said Sande George, the California Chapter's Sacramento lobbyist. Meanwhile, the Sacramento-based Pacific Legal Foundation, one of the country's foremost property rights advocacy groups, is cheering on the Nevada County effort after providing input on early drafts of the initiative. Initiative backers used Oregon's Measure 7, which voters approved in November 2000, as a model for the initiative, Steele said. The measure is necessary, he said, because "the county doesn't follow its own rules." "All we're doing in this initiative is bringing the constitution down to the county level," Steele said. "We're trying to protect the little guy." Opponents, however, say the initiative is unnecessary, too vague, and illegally imposes a new responsibility on the Superior Court. If the measure does pass, a court challenge is certain, although, not surprisingly, the two sides disagree on the measure's legality. Sharon Boivin, a retired county planner and current planning commissioner, said "ultraconservative" old-timers are purposely pursuing a divisive initiative because they have lost control of the Board of Supervisors to slow-growth advocates for the first time in county history. "It's probably more aimed at discrediting this board," she said of the initiative. Stretching from the Sacramento Valley's oak woodlands over Donner Pass to the Nevada state line, Nevada County has a history of polarized politics as the county's economic base of mining, logging and ranching has faded. During the 1960s, high-tech video companies migrated to the Grass Valley and Nevada City area. Also beginning in the late 1960s, the county began attracting a diverse new population: retirees buying homes in semi-rural subdivisions, back-to-the-land types moving into the woods, and artists drawn to a burgeoning cultural center. In spurts during the last 20 years, the area has drawn "equity refugees" from the Bay Area and Southern California, as well as commuters to the Sacramento metropolitan area. The Board of Supervisors remained in the pro-growth conservative camp until the last few years. Now, a 4-1 slow-growth majority controls the county. Two of the slow-growth supervisors, Elizabeth Martin and Bruce Conklin, face property-rights candidates in a November election. Further complicating the situation is a two-year-old county effort to inventory and map biotic resources with the intent of protecting agriculture, forestry and recreation. The effort, known as Natural Heritage 2020, "will be the most detailed habitat information of any county in the state when it's done," Planning Director Mark Tomich said. However, property rights advocates assailed the process as a new regulatory scheme. Feeling the heat, supervisors have ordered planners to speed up the process and finish their work by June 30. Behind the initiative is the Grass Valley-based California Association of Business Property and Resource Owners (CABPRO), a nine-year-old organization with ties to the Wise Use Movement. CABPRO President Margaret Urke said the county made the initiative necessary by treading on property rights, prohibiting some subdivisions and blocking development with environmental regulations. "Our hope is this will deter the supervisors from creating these regulations and imposing a burden on property owners," said Urke. Any money the measure would cost the county is money the county would have taken from property owners via regulation, she contended. Supervisor Martin does believe the measure could break the county financially. Martin said initiative advocates want "mob rule," not a well-reasoned political process. She also decried the vagueness of the initiative. "I completely support people's property rights," said Martin, a Penn Valley farm owner and longtime family farm advocate. "I don't even know what these people are trying to accomplish because their language is so muddy." In late May, initiative organizers submitted nearly 6,000 petition signatures, about two-thirds more than necessary to qualify for the November ballot. The initiative is one of the first local initiatives of its kind anywhere. More limited legislative efforts to compensate landowners for "takings" have arisen in some states and communities. A Florida law requires compensation when a property owner is "inordinately burdened" by regulation. Oregon's Measure 7 is broader, calling for the government to pay property owners for any regulation that devalues property. Thus far, an Oregon court has blocked Measure 7 from implementation because it improperly amended the state constitution. Timothy Dowling, chief counsel for the Washington. D.C.-based Community Rights Counsel, called the Nevada County measure "a one-size-fits-all compensation mandate that has no relationship whatsoever with the takings clause of the Fifth Amendment." Dowling, who has filed briefs at the U.S. Supreme Court defending government regulatory practices, said the measure favors owners of vacant land over existing homeowners, who could feel the impacts of new development. Dowling and other opponents are particularly critical of initiative proponents' reliance on nuisance, and public health and safety exceptions. Government uses its police power to regulate land use because healthy and safety, and nuisance definitions are narrow, often unclear and can fail to protect neighboring properties, they say. Opponents also question whether a county ballot initiative can assign a duty to a state court, and opponents complain the measure creates an undefined process. Dowling further complained that the initiative would "displace 200 years of takings jurisprudence." That, however, is just the point, says Tahoe City attorney and planning consultant Gregg Lien, who wrote the initiative. The ballot measure would establish a new and separate process for property owners seeking compensation because landowners are now "impotent" in the current legal system, Lien contended. Lien said he made the initiative short — it is seven sentences — because he wanted something "easily understandable" and because building all the complexities into the ballot measure was infeasible. James Burling, an attorney for the Pacific Legal Foundation, called the initiative "a step in the right direction." It arises because the pursuit of takings claims in state and federal courts can take years, he said. "Is it legal or not? That's hard to say. There's never been an initiative quite like it in California," Burling said. "I don't see any immediate infirmities." If the measure passes, both sides expect any potential infirmities to be tested in court. Contacts: Russell Steele, Citizens for Fair And Balanced Land-Use, (530) 273-8085. Margaret Urke, California Association of Business Property and Resource Owners, (530) 478-1331. Gregg Lien, initiative author, (530) 583-8500. Elizabeth Martin, Nevada County supervisor, (530) 265-1480. Timothy Dowling, Community Rights Counsel, (202) 296-6889. James Burling, Pacific Legal Foundation, (916) 362-2833. Initiative website: www.fairnessinitiative.org ---------- The people of the County of Nevada ordain as follows: Nevada County (the "County") shall provide an orderly process for addressing claims for reimbursement, payable to the property owner, when it is determined that there is a reduction in the market value of an owner's parcel. After passage of this initiative, this process applies to proposed projects when regulatory actions or determinations by the County restrict existing use or utility, in whole or in part, of the affected parcel. Restrictions based upon a clear and present danger to public health and safety, and traditionally recognized common law nuisance prohibitions, shall not be considered in calculating reductions in value. A property owner seeking reimbursement pursuant to this initiative shall first seek beneficial best use of the property. This best use must be denied by the Board of Supervisors prior to filing a claim. The Superior Court of the County shall have exclusive jurisdiction over claims made, and shall have the power to make independent findings of fact and conclusions of law, and shall not be bound by findings or determinations by the County. Reimbursement shall equal the difference in market value, with and without the regulation or action complained of, and shall include reasonable attorneys' fees and costs. If any phrase, clause or part of this initiative is found to be invalid by a court of competent jurisdiction, the remaining phrases, clauses and parts shall remain in full force and effect.