A sanitation district has exclusive jurisdiction to provide sewer service to an area annexed by Corona, and the city cannot interfere with that right, the Fourth District Court of Appeal has ruled. The lawsuit was forced by the Riverside County Local Agency Formation Commission's decision 16 years ago not to decide who would provide sewer service to the area. Formed under the Sanitary District Act of 1923 (Health & Safety Code § 6400 et seq.), the Home Gardens Sanitary District has provided sewer service to the area near the intersection of Magnolia Avenue and East Sixth Street since 1963. In 1986, the Riverside County LAFCO approved Corona's application to annex the territory. LAFCO identified the potential for the duplication of sewer services by Home Gardens and the city, but LAFCO simply suggested that the two entities work things out. They didn't. Instead, the city in 1999 adopted a policy for the area that said a property could connect to the district's sewer only if the property fronted on a street with a district sewer line, if there were no city sewer line in that street, and if the district had signed an interagency agreement with the city. Otherwise, the city required the property to connect to the city's sewer line. Home Gardens sued, and Riverside County Superior Court Judge Sharon Waters struck down the city policy. Judge Waters also ruled that both the city and Home Gardens have the right to provide sewer service to the area. Both sides appealed. A unanimous three-judge panel of the Fourth District, Division Two, upheld Waters decision to invalidate the city policy. But the appellate court went further and ruled that Home Gardens has the sole right to provide sewer service to the area. In the published portion of its opinion, the appellate court addressed three questions: Was the lawsuit filed too late? Can the city interfere with the district's exercise of statutory powers? Does the district have the exclusive right to provide sewer service? The city argued that Home Gardens filed the lawsuit way too late because LAFCO decided the matter years ago. But the court held that the challenge was not untimely because "LAFCO ducked the issue by leaving it to the city and the district to resolve." Thus, the lawsuit was not contesting a LAFCO decision because there was no LAFCO decision. On the second question, the city argued that its police powers allow it to decide how sewer service is provided within the city limits. Again, the court disagreed. Home Gardens "is a creation of state law and is exercising the authority conferred by state law to collect and treat sewage," Justice Art McKinster wrote for the court. "Any attempt by the city to exercise its police powers in a way that limits the district's statutory authority conflicts with state law and is void." The city pointed to a similar dispute decided in favor of a city in City of Fresno v. Pinedale County Water Dist., (1986) 184 Cal.App. 3d 840. However, the result there was different because Fresno is a charter city and Corona is not, the court held. As for exclusivity, the court again noted the superiority of state law over local ordinances. "State law authorizes the district not only to construct its sewers in any public street, but also to ‘compel all residents and property owners in the district to connect their houses and habitations and structures … with the sewers.' Here, the district has constructed those sewers and has adopted that requirement. Its decision that it will be the sole provider of sewer service within its boundaries has the force of state law," McKinster wrote. The Case: Home Gardens Sanitary District v. City of Corona, No. E029777, 02 C.D.O.S. 1467, 2002 DJDAR 1777. Filed February 11, 2002. The Lawyers: For Home Gardens: Alan Burns, Harper & Burns, (714) 771-7728. For Corona: Victor Wolf, Best, Best & Krieger, (909) 686-1450.

San Mateo County must approve plans for expansion of San Francisco International Airport before the project is considered by a state panel that decides on development along San Francisco Bay, according to a state Attorney General's opinion. The airport is on land owned by San Francisco in San Mateo County, and San Mateo County officials have often chafed at the lack of authority they have over SFO development. In recent years, SFO planners have inched forward on construction of new runways in the bay. The airport's current runways are too close together for two planes to land simultaneously in the fog, a limitation that makes flights to and from San Francisco among the most delayed in the country. The new runways would be far enough apart for two planes to land at the same time when the fog rolls in. When SFO initially started planning the runway expansion, San Francisco disputed San Mateo County's jurisdiction because the site of the proposed runways is public trust land in the bay, which is under the jurisdiction of the Bay Conservation and Development Commission (BCDC). However, state legislation approved last year (SB 244, Speier) made clear that the runway proposal would need San Mateo County's approval. The BCDC asked the Attorney General if San Francisco must get San Mateo County approval for the project before bringing it to the Commission. The BCDC also asked if it could waive or postpone the requirement for San Mateo County's approval. The opinion authored by Deputy Attorney General Gregory Gonot said San Mateo County gets to decide before the BCDC does, and that there is nothing the BCDC can do about it. The most important aspect of the opinion is that it resolved where BCDC fit into the procession of public agencies that must decide on the project, said Michael Murphy, San Mateo chief deputy county counsel. "The Commission's decision," Gonot wrote, "concerning whether San Francisco Bay should be subject to the placement of fill for a particular project must be based upon as complete a record as possible. If discretionary approvals by other local or regional governments have not been given, the Commission cannot make an informed decision as contemplated by the Legislature." Gonot cited Government Code § 66632, as well as §10311 of title 14 of the California Code of Regulations, which clearly state that the BCDC "may not waive or modify … the requirement that a permit application must obtain all local discretionary governmental approvals." According to Gonot, San Mateo County has both "jurisdiction" and "discretionary approval" over the project under §§ 21001-27007 of the Public Utilities Code, portions of which SB 244 amended. " he board of supervisors of the county is required to conduct a public hearing on the proposed airport expansion plan and approve or disapprove the plan. This approval process meets the traditional definition of having ‘jurisdiction,'" Gonot wrote. "Moreover," he continued, "the county has ‘discretionary approval' over the proposed project. … Determining whether the proposed airport expansion would be in the best interests of the county presents the same type of issues as presented in other land use regulatory decisions made pursuant to local police power authority." The opinion, combined with last year's legislation, make certain that San Francisco cannot move forward on the runway project without San Mateo County's approval. "It's been difficult because of their exemption from local building and zoning regulations," said Murphy, the county lawyer. "There have been disputes in the past over whether a specific undertaking is covered by county regulations." Not addressed in the opinion are all of the other state and federal agencies that must also review the SFO runway project, and where those entities fit into the decision-making procession. Also, San Francisco voters approved an initiative last year that requires all city projects involving the fill of more than 100 acres of bay to receive voter approval. The proposed runways would fill about 900 acres. Opinion No. 00-1212 was filed January 11, 2002. It can be found at 02 C.D.O.S. 355, and 2002 DJDAR 507.

A county can require an applicant for a development permit to indemnify the county in any attempt brought by a third party to void the permit, according to an opinion from the Attorney General's office. The specific question raised by state Sen. Wesley Chesbro (D-Arcata) is whether a county can require an applicant for a coastal development permit to sign an agreement to defend, indemnify and hold harmless the county in an action filed by a third party. The opinion authored by Deputy Attorney General Gregory Gonot, however, appears to apply to all discretionary development permits, not only coastal applications. Regulation of land development is an exercise of the police power of a county or city, Gonot explained. The police power allows local government to impose development fees, which relate to the impact of a development and the cost to the community. Local governments also can impose regulatory fees, such as the reasonable cost of processing permit applications or the cost of administering an ordinance. The costs included in regulatory fees can include all incidental costs for issuing a permit. Gonot cited United Business Com. v. City of San Diego, (1979) 91 Cal.App.3d 156), which built on an earlier state Supreme Court ruling. The court in United Business ruled that regulatory costs are not "simply those which arise directly in the enforcement of the regulatory provisions themselves. The license fee may properly be fixed with a view to reimbursing the city, town or county for all expense imposed upon it by the business sought to be regulated." Wrote Gonot, "Here, the indemnity agreement is exacted by the county to cover litigation expenses associated with the issuance of a coastal development permit." In Topanga Assn. for a Scenic Community v. County of Los Angeles, (1989) 214 Cal.App.3d 1348, the court ruled that a similar indemnity requirement was an issue of public policy and that challenges should be addressed to the legislative body, not the courts. "Accordingly," wrote Gonot, "we view it as a matter of public policy for a county to determine whether the litigation costs associated with the granting of a coastal development permit should be borne by the permit holder or by the general taxpayers of the county. A court will not interfere with a county's decision in this regard." Opinion No. 01-701 was filed February 4, 2002. It can be found at 2002 DJDAR 1721

Population projections beget households, households beget units and units beget Regional Housing Needs Assessments (RHNA) and those infamous housing elements. The current round of housing elements is based on the state Department of Finance (DOF) Demographic Research Unit's County Population Projections with Age, Sex and Race/Ethnic Detail:1990-2040. Since these population projections were completed in 1998, updated information – especially Census 2000 data – will beget new population projections that are likely to show significantly lower population increases by 2020, and, thus, the need for fewer housing units than projected. There are three reasons why the next round of projections should show lower future populations. The first is that the unadjusted Census 2000 count for California was 782,000 fewer than DOF's 2000 projection, or 2.5% less than expected. If the new set of projections uses this lower ‘benchmark,' the forecast 2020 population is reduced by 1 million (782,000 compounded at a rate of 1.33%). The second reason is that births to Hispanic women age 15-19 are less than projected. Because Hispanic births are the largest driver of natural population growth within the state, the impact of using new, lower birth rates in new projections should be significant. Demographers now think that the sharp increase in Hispanic births during the late 1980's may have been a ‘spike' resulting from the 1986 Immigration Control and Reform Act. More than 95% of the California's legalized population was Mexican or Central American with a median age of 32. Demographers speculate that with legalization came family reunions and a desire to "beget." More recent data show a decline in births of Hispanic women age 15-19 compared with the rates embedded in the 1998 projections. Should that lower rate continue, the Hispanic and the state's 2020 population is reduced by upwards of one million compared with the current DOF projections. Together, the lower Census 2000 count and the reduced Hispanic birth rate could bring a 2020 population projection that may be 2 million people fewer than the current projection of 45,450,000. The reduction would be proportionally greater in areas with large Hispanic populations, both now and in 20 years. The final factor behind lower future populations is more speculative and based on research and analysis that we at Solimar have completed on "ballot box zoning," urban growth boundaries, environmental restrictions (habitat protection, water availability, air quality impacts) and open space acquisition. All four trends make development difficult and more expensive and, coupled with our already high housing costs and current recession, might force a decline in migration to California — perhaps even more so than what DOF assumed in making its 1998 projections. According to DOF, net migration accounted for more than half of last year's population growth, which DOF officials view as a temporary situation that should have already declined. If net migration does fall and is captured in the next DOF projection, the result would further contribute to lower population projections. There is still the unresolved problem of the Census 2000 undercount, and the question of whether to add an estimated undercount figure. The initial Census 2000 undercount estimate for California was about 500,000, but the Census Bureau later rescinded the figure as unreliable. Two lower courts have decided against the Bush administration's claim that the adjusted numbers were protected by an exemption for information that is part of the decision-making process. Nevertheless, the official Census 2000 figure remains 33.8 million — well below what DOF and most other demographers anticipated. The next round of housing elements may not be as painful if the allocations are relatively lower. That is the good news for those many planners and elected officials who love to hate the RHNA process. The bad news is these projections only buy a few years' respite. The state's population will still continue to increase into the foreseeable future.

Counties do not have the authority to recover the cost of investigation and criminal prosecution of code infractions, the Fourth District Court of Appeal has ruled. The court held that cities do have the power to recover the costs of criminal code enforcement activities, but state law treats counties differently. "We must conclude that counties — unlike cities — do not presently have the power to ‘fix' fines, penalties and forfeitures for criminal violation of their ordinances, but are relegated to the fines and penalties set by general statute, except where the Legislature has expressly bestowed on the counties the power to impose additional penalties," Justice James Ward wrote for the court. In the area of code enforcement, the Legislature has not made such an exception. The decision came in a case from San Bernardino County. In August 2000, a San Bernardino County court found William Thomas Minor Sr. guilty of three infractions of the county code. The county prosecuted Minor because he failed to clean up his rural property, on which he operated an unpermitted hog farm, had accumulated a great deal of trash and inoperative vehicles, and had built unpermitted, substandard structures. The court ordered Minor to pay the county's Land Use Services Department $1,014 — equal to 19.5 hours of a code enforcement officer's time spent investigating the case, seeking compliance and preparing for trial. Minor appealed the conviction and fine to the San Bernardino County Superior Court's Appellate Division, which upheld the conviction but ruled that no statute authorized the county to recover the costs of criminal law enforcement in this instance. The Fourth District decided to review the case on its own motion and reached the same conclusion. As a general rule, the court held, government may not recover the cost of law enforcement unless authorizing legislation provides for the recovery. "Law enforcement is a quintessentially government function, and the government commands the requisite revenue to provide such services through the taxing power," Ward wrote. "It should come as no surprise, therefore, that the costs of law enforcement, carried out by the counties as an arm of the state, should be borne by the counties." A San Bernardino County ordinance that authorizes the county to seek reimbursement for code enforcement prosecution conflicts with the state's general law, the court ruled. However, the law in question, Government Code § 36901, explicitly authorizes cities to set penalties for violation of penal ordinances. Legislative control over counties, which are "mere political subdivisions of the state," is greater than over cities, the court noted. The county argued that the general law preemption only affects matters of statewide concern, and the county's recovery of code enforcement costs is not a statewide issue. But the court flatly rejected this argument. The county also argued that the recovery ordinance is a zoning ordinance. The court was skeptical but said it did not matter even if the ordinance in question were a zoning ordinance. Again the court pointed to the difference between how the Government Code treats cities in § 36900, and how the Government Code handles counties in § 25132. Both sections set the maximum criminal penalties for code violation infractions and misdemeanors. Ward quoted the lower court ruling, which cited § 36901: "‘The city legislative body may impose fines, penalties, and forfeitures for violations of ordinances. It may fix the penalty by fine or imprisonment or both.' … Even if we interpret § 36901 as authorizing cities to force criminal defendants to repay code enforcement costs, (an interpretation that is by no means obvious), no analogous statute exists empowering counties to impose ‘fines, penalties, and forfeitures.'" The court concluded that the state law was unfair, but, "we must reluctantly conclude that the county's remedy lies with the Legislature, and not with the courts." The Case: People v. Minor, No. E030458, 02 C.D.O.S. 1381, 2002 DJDAR 1655. Filed February 8, 2002. The Lawyers: For People: Matthew Marnell, San Bernardino Deputy County Counsel, (909) 387-5455. For Minor: Linda Rose Fessler, (714) 967-0967.

The Sacramento Regional County Sanitation District has adopted a sewer hookup fee schedule that increases rates for development on the urban fringe, but decreases the fees in existing urban areas. Previously, the Sanitation District charged all new homes the same amount for a sewer connection — $3,500 — regardless of a structure's location. Under the new plan, a home in a fringe areas such as North Natomas and portions of Elk Grove, Folsom and Orangevale would be assessed $5,850 by 2004. The fee for a home in more urbanized areas almost immediately dropped to $2,350. Backers of the plan, including environmental organizations and some Sacramento city and county leaders, said it would discourage greenfield development and encourage infill. The Building Industry Association of Superior California lobbied against the fee schedule, saying there was no basis for the decision. Monterey County supervisors approved one moratorium on new subdivisions in one part of the county, and extended an existing subdivision moratorium elsewhere. In late January, the Board of Supervisors imposed a moratorium on new subdivisions in Carmel Valley, east of Monterey, because of congestion on Carmel Valley Road. Officials said the moratorium would remain in place until the county upgrades the road and updates the general plan and Carmel Valley master plan. The moratorium does not affect building permits for already approved projects. Also in late January, supervisors extended for another six months a moratorium for an area north of Salinas that is critically short of water. The North County moratorium was already in place 18 months when supervisors extended it. Area residents and farmers rely on wells, but experts say the groundwater is being depleted. Thus far, no project to pipe water into the area has moved forward. As expected, an environmental impact report for the planned University of California, Merced, campus has been challenged in court. Three groups — Protect Our Water, the San Joaquin Raptor Rescue Center, and the Central Valley Safe Environment Network — filed the suit in February over the EIR approved one month earlier by UC regent. The environmental groups argue that UC segmented the review process rather than examine the entire 2,500-acre campus and new community as one project. Officials at UC defended the EIR on the proposed campus and said it was significant that no major, mainstream environmental group filed the lawsuit. The Merced County Board of Supervisors is scheduled to consider an EIR for the university community later this year. A Southern California developer pleaded guilty in February of attempting to bribe the mayor of Huntington Park. Harry Hwang of Huntington Park is scheduled to be sentenced in April on two counts of bribery. Huntington Park Mayor Richard Loya contacted the FBI last year when Hwang offered a bribe to get Loya's vote for a proposed retail and entertainment center, and for a city subsidy for the project. Hwang offered to launder political contributions for Loya, said he would pay for a Mexican vacation for the mayor and his wife, and even offered employment after Loya completed his term of office. In August, FBI agents videotaped Hwang handing Loya $4,000 in cash outside a hotel in downtown Los Angeles. Federal prosecutors cut the plea deal with Hwang, but the federal investigation into alleged corruption in Huntington Park is ongoing. California's High-Speed Rail Authority could be back on track next fiscal year. The 2002-03 budget proposed by Gov. Davis contains the full $8.46 million requested by the Rail Authority. Last year, the Rail Authority requested $14 million but received only $1 million (see CP&DR Public Development, December 2001). The agency, which is planning high-speed rail lines connecting San Diego, Los Angeles, Riverside, Sacramento and the Bay Area, cobbled together about $4 million from various federal sources and unused state monies to keep the effort going. If it receives the requested $8.46 million, the Rail Authority could complete an environmental impact report by mid-2003, according to officials. The governor has given mixed signals about the proposed high-speed train. Some people speculate that the September 11 terrorist attack may have caused him to reconsider the program in a more favorable light. The project has considerable support in the Legislature, especially from Central Valley representatives. Two architects who had big plans for establishing a jazz district in downtown Oakland during the 1980s have had a jury's award of damages tossed out. The architects, brothers Glenn and Richard Storek, had won a $41.8 million verdict against Citicorp Inc., which pulled funding for the project at the last minute. An Alameda County jury found that Citicorp committed fraud. But in an unpublished opinion issued in February, the First District Court of Appeal reduced the jury's award of damages to $900,001. The ambitious project called for redeveloping a stretch of Old Oakland with jazz clubs, restaurants and offices. The deal was to be financed with $30 million of municipal bonds and a $9 million loan from Citicorp. Development got started, but Citicorp refused to pay the last $1 million of the loan because of project cost overruns. The project stalled and Citicorp foreclosed. The Storeks sued and, after one jury deadlocked, they won the second trial. The appellate panel still ruled for the Storeks but found that there was no causal connection between the alleged fraud and the damages they suffered. A U.S. District Court decision issued in February could serve as a major setback to the CalFed project that seeks to restore the health of the Bay Delta. Fresno District Court Judge Oliver Wanger ruled that the Department of the Interior was measuring water incorrectly, and Central Valley farmers were entitled to water that federal officials have been devoting to environmental purposes. Under CalFed legislation, 800,000 acre-feet of water is to be dedicated for restoration of Bay Delta water quality and habitat every year. About half of that water would have been delivered to farmers. In exchange for giving up that water, farmers received a guarantee that additional water would not be diverted. However, in wet years, Interior was deducting water that refilled reservoirs from the amount dedicated to the environment. The Westlands Water District and other irrigation agencies argued that because of this approach, as much as 1.1 million acre-feet of water was going to environmental purposes, when the extra 300,000 acre-feet should have been made available to agricultural customers of the Central Valley Project. Wanger agreed. Environmentalists said the ruling was a setback for endangered species of smelt and salmon. The way federal biologists interpret Wanger's decision appears to be key. An appeal of the decision is likely. Mendocino County is in an uproar over a proposal by an entrepreneur to collect water from two rivers in giant plastic bags, and pull the bags with a tugboat to San Diego. As of February, Ric Davidge of Anchorage, Alaska-based Water World SA had an application for 20,000 acre-feet of water rights to the Gualala and Albion rivers pending before the State Water Resources Control Board. The proposal calls for burying a device like a cistern at the mouth of each river. A pipeline would carry freshwater from the collection points to plastic bags floating offshore. "There will be no loss of water table in the river, or in its associated ground water systems," Davidge told the Santa Rosa Press Democrat. The Mendocino County Board of Supervisors is already on record against the proposal. Sonoma County supervisors, state Sen. Wes Chesbro (D-Arcata) and Assemblywoman Patricia Wiggins (D-Santa Rosa) also have taken a stand against the concept. They say the proposal would set back efforts to restore endangered species habitat along the North Coast.

To critics of state and federal water policy in the California, the Westlands Water District symbolizes just about everything that could possibly go wrong with public management of this precious resource. But an $800 million deal that could retire one-third of the farmland in the huge water district might lay to rest one of the most vexing problems associated with Westlands while also ushering in a new era in Western water and land-use practices. Encompassing 604,000 acres on the west side of the San Joaquin Valley, Westlands occupies a 70-mile-long strip paralleling Interstate 5 from Mendota on the north to Kettleman City on the south. The district receives only about 7 inches of rain annually, but still manages to produce $1 billion a year in agricultural products. The catalyst for this arid-land alchemy is familiar throughout the West: provision of huge amounts of cheap water through an expensive taxpayer-supported project. In the case of Westlands, that catalyst is the Central Valley Project (CVP), a system of 20 dams and 500 miles of canals and aqueducts built and operated by the U.S. Bureau of Reclamation (USBR). The CVP irrigates more than 3 million acres of farmland in the Central Valley and provides domestic water to about 2 million urban residents. Westlands is the nation's largest irrigation district and the CVP's largest customer, with contracts for 1.15 million acre-feet of water a year. Established in 1952, Westlands signed a contract for CVP water in 1963 and a billion-dollar-a-year agricultural empire was established. But Westlands almost immediately began to run afoul of the immutable laws of nature. Thanks to inconvenient geology, which is rapidly helping irrigation transform the valley into a salt-laden wasteland, negotiations are underway that could result in the federal government spending as much as $805 million to buy out owners of 200,000 acres of Westlands farmland — and retire it. The geology is fairly simple to understand. As recently as 600,000 years ago, the San Joaquin Valley was a vast, shallow lake. Over millennia, sediments drifting to the bottom of that lake created a thick bed of clay, subsequently buried by debris eroding off the Coast Ranges and the Sierra Nevada. Farmers till the relatively young erosional debris and plant crops in it; the older clay layer traps and holds groundwater just beneath the surface (hydrologists call this "perched" water). Irrigation runoff — which becomes salty during its passage through the valley's saline soil — percolates into the shallow "perched" aquifer and cannot escape. Over time, the level of saline water has risen until it has begun flooding crop roots from below. Thousands of acres of farmland in the southern San Joaquin Valley have become too salty to farm because of this phenomenon. The problem was identified half a century ago, and the proposed solution was to drain the salty water from the valley and dump it in the Sacramento-San Joaquin Delta, where it eventually could mingle with the seawater of San Francisco Bay. The Bureau of Reclamation began construction of the 188-mile drain canal in the early 1970s but growing opposition from the Bay Area halted it in 1975 after only 85 miles had been built. The unfinished drain terminated near Los Banos in Kesterson National Wildlife Refuge, which had been established jointly by the Bureau and the U.S. Fish & Wildlife Service in 1970 to accommodate irrigation drainage and replace waterfowl habitat lost to farming and urbanization. In 1983, however, biologists and refuge workers noticed that ducks, coots, grebes, and stilts born at Kesterson were emerging from their eggs with deformed beaks, missing wings, twisted legs and misshapen skulls. Many died shortly after hatching. Lab tests by Fish & Wildlife determined that the epidemic of death and deformity was the result of unusually high concentrations of selenium, an element that occurs naturally in the Westlands Water District soil (and is widespread throughout the Southwest). An essential nutrient that is toxic in high doses, selenium was picked up by the irrigation runoff flowing from Westlands into the drain, and grew more concentrated in Kesterson as water in the refuge's shallow lake and bordering marshes evaporated under the fierce Central Valley sun. The Bureau of Reclamation shut down the drain in 1986. Since then, most of the salty, selenium-rich water draining off Westlands farms has had no place to go. Political pressure from downstream communities has blocked any solution that would send the contaminated runoff somewhere else. Alternatives that would keep the drainage in the valley — such as filtering the tainted runoff, sending the water to evaporation ponds and hauling the brine to landfills — would cost more than the land in the irrigation district is worth. A federal report released last month suggested that such treatment could cost as much as $3.8 billion. That same report estimated the proposed land buyout by the federal government — which a court ruled two years ago must solve the problem because it never built the drain it had promised (see CP&DR Legal Digest, March 2000) — would cost "only" $805 million. Agriculture-dependent Central Valley communities are understandably anxious about the economic impacts of taking so much land out of production. But retirement would serve many goals. It would solve the drainage problem for at least part of the valley. It would enable habitat restoration for plants and animals endangered by agricultural activities. And it would free up a third of the water being used to irrigate Westlands farms. Thirsty urban agencies would pay premium prices for that water, which Westlands will continue to control under its long-term CVP contracts. With agriculture consuming more than 80 percent of California's developed water, it wouldn't take too many deals of that sort to shift enough water from farms to cities to address the state's growing imbalance between demand and supply. And by eliminating crops from all that flat land in the I-5 corridor, conveniently near the booming communities of the Central Valley, the deal suggests a way to shift urban development pressure from truly prime cropland to problematic acreage that probably should not have been farmed in the first place. Contacts: Westlands Water District: (559) 224-1523. U.S. Bureau of Reclamation: (559) 487-5039. U.S. Fish and Wildlife Service: (209) 946-6400.

No single resource has had more of an influence on California's development patterns than water. The essential liquid has been pivotal to a range of historical and political conflicts, from the pillaging of the Owens Valley by Los Angeles to the damming of the Hetch Hetchy Valley by San Francisco. The U.S. Supreme Court has had to mediate disputes involving California and its neighboring states over Colorado River water. As recently as the 1980s, droughts were scary enough that even normally anti-growth Santa Barbarans voted for two major new supplies: state water and desalinated seawater. Other thirsty coastal communities closely watched Santa Barbara's experience with building a desal plant. Unfortunately, Santa Barbara's experiment — built at a cost of $34 million and employed for only three months during 1992 — is considered by advocates as the black eye in the desal water supply trend, though city officials still call the plant a "drought supply." But Santa Barbara's expensive desal story overshadows what has really been happening during the last 10 years. The cost of desal has dropped by 50%, the technology for developing efficient filter membranes has improved greatly, and the demand for new water sources has remained as urgent as ever. And for many communities in the state, desal has emerged as a leaner and viable alternative to new dams, reservoirs and pipelines. Counter to popular belief, most desal plants operating in California are not by the sea, and they do not use seawater. Instead, most plants treat "brackish" water —- groundwater that has high levels of dissolved solids due to seawater intrusion or other contamination, or even sewer effluent. Three such plants have come online in since 1998 in Riverside, San Bernardino, and San Diego counties. The product is typically blended with other sources — usually imported water. These reverse-osmosis systems require far less expensive filter membranes than do plants that treat seawater. Furthermore, they can avoid complicated coastal resource-related permits. Casey Jaworksi is a water engineer for the city of Oceanside, a city whose experience with desal operations is typical in California today. During the 1960s, Oceanside stopped using local groundwater because it had become contaminated by seawater intrusion, he said. Usually induced by over-pumping by agricultural users, seawater migration into underground aquifers has emerged as a problem up and down the California coast. In 1994, Oceanside opened a desal plant three miles inland from its sandy beaches, Jaworski explained. Using a reactivated well site, the plant immediately began supplying 2 million gallons per day, 7% of the city's demand. A current expansion of the plant will yield 6 million gallons a day, thereby handling 15% of the projected local demand. The project was spurred by financial incentives offered by the nation's largest water supply agency, the Metropolitan Water District of Southern California. The Met offers $250 per acre foot subsidy for its member agencies that produce from local supplies. Immediately south of Oceanside, the City of Carlsbad is involved in the better understood, albeit rarer, type of desal plant, the kind that actually uses seawater. In conjunction with officials from the San Diego Water Authority, Carlsbad is considering entering a deal with Connecticut-based Poseidon Resources to develop seawater desal operations at the Cabrillo power plant in Carlsbad. A second plant would be developed at a power plant in Chula Vista. Proponents say that Carlsbad's Cabrillo facility alone would produce 9.3% of San Diego County's domestic supply. The proposed plant would use the same technology as a facility scheduled to go on line in 2003 in Tampa, Florida, another fast-growing region with water demand pressures and supply constraints. In this new generation of seawater desal technology, the plant is coupled with an existing power plant, which already has seawater intakes for cooling. The desal plant diverts some of this supply and processes it through the latest filtering membranes. It then discharges the concentrated remains with the power plant supply effluent. The Tampa plant, which will produce 25 million gallons per day, will be the largest such plant in North America used for domestic supplies. Even though the cost of seawater desal is becoming competitive with developing other surface water sources, obstacles remain. Environmental concerns about discharging hyper-salted waste byproduct into the ocean is one hurdle. The reliance on electric power to drive the filtration is another. Such impacts, however, need to be weighed against the formidable environmental challenges of developing new reservoirs and pipeline systems. The trend is clearly working against the latter. Globally, desal is viable where other more traditional sources are either depleted or otherwise unavailable, according to water engineer Ben Movahed, of Watek Engineering in Maryland. Island and desert regions are where most seawater systems operate. "If you have other sources, you want to use those. Desal is a system of last resort," Movahed said. So does the emergence of desal in California's urban coastal communities suggest that the region has reached a holding capacity? With popular support and political stomach for 1950s-era public works plumbing projects absent, the ocean may represent that last resort. -------------------------------------------- Water Costs to Consumer, per 1,000 Gallons Existing traditional supply: $0.90-$2.50 Brackish: $1.50-$3.00 Seawater: $3.00-$8.00 Traditional + brackish $1.20-$2.75 Traditional + seawater $1.10-$3.05 (source: American Membrane Technology Association) ----------------------------------------------

Although they cannot be false and misleading, ballot arguments need not be relevant, the Fourth District Court of Appeal has ruled. The panel issued its opinion in a lawsuit challenging the title of, and ballot arguments for, a City of Huntington Beach measure on the March ballot that would impose a tax on a power plant. The unanimous three-judge panel reinstated a number of the city's ballot arguments that a trial court had struck down. However, the appellate panel removed a few of city's arguments as false and misleading, and the court slightly modified the title of the measure. "In the political arena, after all, one person's relevant argument is another person's nonsense. Only when there is no relationship to the measure does the trial court have the authority to strike it," Justice David Sills wrote. Huntington Beach has had a 5% tax on utilities — including natural gas, electricity and cable television — since 1970. The ballot measure would extend the tax to AES Corporation's wholesale purchase of natural gas to fire an electricity generating plant. The city proposed the tax, which would raise about $2 million a year for a proposed "infrastructure fund," shortly after the California Energy Commission allowed AES to restart two units of the plant despite local objections. AES President Ed Blackford challenged the title of the ballot measure, the ballot argument and the city's rebuttal. In December, Orange County Superior Court Judge Derek Hunt ruled in favor of Blackford. One week later, Hunt backed away from some of his initial decision. Both the city and Blackford appealed. The Fourth District refused to strike anything as irrelevant. However the court replaced the word "exemption" in the measure's title with "exclusion," so the title became, "Amendment of Utility Tax by Removing Electric Power Plant Exclusion." The court ruled that the word "exemption" connoted "unfair influence and special treatment," which amounted to advocacy in what should be a neutral title. The court also struck all or portions of five ballot arguments submitted by the city because the court held that they were false or misleading. For example, the city's argument said the measure would only require the power plant to pay the same tax that all residents pay. The court ruled, "It gets hit with Huntington Beach's 5% utility sales tax on its utility bills the same as everybody else does. What it doesn't pay is a tax that only it could pay. So to say that AES is the only business that does not pay ‘this tax' is to mislead." The court also removed as false a sentence claiming AES refused to sign a contract for sale of electricity solely in California. The Cases: Huntington Beach City Council v. Superior Court of Orange County; Ed Blackford v. Superior Court of Orange County, No. G030075, 02 C.D.O.S. 205, 2002 DJDAR 261. Filed January 8, 2002. The Lawyers: For Huntington Beach: Gail Hutton, City Attorney, (714) 536-5555. For Blackford: Donald R. Brown, Manatt Phelps & Phillips, (310) 312-4318.

City leaders in Azusa believe they have their community on a more prosperous track after years of political fighting and questionable land use decisions. Downtown redevelopment is finally taking hold, builders are constructing upscale houses, and an exhaustive planning process for a prized 400-acre parcel appears to be settling old disputes. Not everything is rosy in the city of 45,000 at the eastern end of the San Gabriel Valley. Incomes of residents are among the lowest in the valley, years of cheap construction have given parts of town an undeniably tacky appearance, and not everyone supports the new developments. Still, people inside and outside of City Hall believe the town, in general, is headed in the right direction. "They are not stuck in some endless downward spiral where nobody really cares," said Dena Belzer, a principle with Strategic Economics in Berkeley who has studied suburbs extensively. "No one's trying to invent it as something else. They're just trying to do what they do better." Many inner-ring suburbs, including Azusa, have gotten stuck in downward spirals, conceded Rick Cole, who became city manager in 1998. "The challenge is, what do older suburbs become?" Cole said. "Do they become like central cities without the stadiums and cathedrals and museums? Do they just provide more and more low-end housing, with more crime and school test scores that continue to spiral downward?" Throughout much of the 1980s and 1990s, other San Gabriel Valley suburbs — including Pasadena, San Marino, Sierra Madre, Arcadia and Monrovia — gentrified. They suffered during the aerospace industry downtown, but their overall fortunes headed in the right direction, and they have become stable, desirable, inner-ring suburbs. But Cole, who earned a reputation as a New Urbanist while serving as Pasadena's mayor, remembers the Colorado Boulevard of the 1970s. Far from the being the heart of today's trendy Old Town Pasadena, Colorado Boulevard 30 years ago was lined with second-hand stores, and the street was lifeless at night. With incremental improvements, good planning and public investments, Pasadena capitalized on its strong sense of place and righted itself. Cole does not picture Azusa becoming "another Pasadena," but he sees no reason why Azusa cannot become equally desirable. Azusa lacks Pasadena's famous Arroyo, but it has some similar assets — well-kept neighborhoods of older homes, a decent job base, proximity to other employment, and a spot at the base of the scenic San Gabriel Mountains. An ugly political history During the 1980s and much of the '90s, Azusa politics was cutthroat and often centered on development disputes. Turnover on the City Council and inside City Hall was rapid. The conflict peaked during December 1995 with an initiative to permit casino gambling. Voters rejected Proposition A by more than two-to-one, but the fight split the community deeply. In 1999, the Azusa City Council approved a 1,600-house subdivision on about 400 acres owned and still used by Monrovia Nursery. Again, voters had their say, defeating the project in a referendum later that year. The project's defeat opened the door for the city and Monrovia Nursery to start fresh on planning for prime real estate. The lengthy and public planning process that has attracted hundreds of participants could be considered symbolic of Azusa's new approach. During the early 1990s, nursery owners revealed that they wanted to sell the property for development. At the time, developers and community leaders believed the only option for development was lower-end, single-family houses. Azusa Mayor Christina Cruz Madrid recalls the proposed project as "worse than what we have now — future ghettos." With Madrid dissenting, the City Council approved the project anyway. This time around, the city is including detailed planning for the nursery site in a broad revision of the 20-year-old general plan. The city has conducted public forums regarding the nursery property, as well as a design competition. Last December, the city hired the planning team of EDAW Inc. and Maryland's Torti Gallas and Partners. "We generally would not work on a 400-acre site. It's not big enough," said Steven Kellenberg, a principal in EDAW's Irvine office. The company took interest because Azusa clearly wants a project that is "a level above," he said. "The site is very interesting for a couple of reasons," Kellenberg said. "It's an infill site of a significant size in an area where there is a very strong market demand for housing. The second thing is, it's a heritage site." Kellenberg said planners responded well to the four basic principles outlined by city officials for the project: a circulation system that connects with the rest of town; open space and parks that benefit all city residents; a mix of housing types, including affordable units; and an activity center around a future Blue Line rail station. Planners conducted a public workshop in January, and Kellenberg hopes to release some concrete plans early this spring. "I think we could do something that is really a benchmark for the region," he said. Although Monrovia Nursery is providing $350,000 for the planning process and company CEO Miles Rosedale endorses the city's approach, Azusa officials insist that it is not a developer-driven effort. The city is not preparing a specific plan for the site. Instead, the general plan and zoning will be specific enough that developers can go straight to the tract map stage, Cole said. The goal is to end up with a "neo-traditional" development that emphasizes pedestrian activity, a mix of housing styles and public transit. Rosedale said the company hopes that the Azusa planning effort will lead to similar development on the 200 acres of nursery property in Glendora. Mayor Madrid said the project will never receive unanimous support in the community, but she believes people can reach consensus on the major issues. Madrid insists that the project incorporate open space for wildlife and public gatherings. Starting with the basics Cole began laying groundwork for the nursery site planning process well ahead of time. When he arrived nearly four years ago, he found "an incredible, untrustful cynicism" among city residents. To combat that, he and other city leaders began tackling small problems — not simply to make small improvements, but also to gain credibility. The city provided money to upgrade a rundown park in a poor part of town. The city tackled a long-standing day-laborer problem by building a bus-stop type facility away from residences and businesses where workers and employers can meet. And the city implemented a campaign to plant thousands of street trees. "You can't do a big, ambitious planning project unless you can show results," Cole explained. "It's not magic. It's hard work and incremental improvements." Downtown redevelopment, which has a long and checkered past, appears to be advancing. The city spent $1.8 million on streetscape improvements, which helped entice dozens of businesses to fill vacancies on Azusa Avenue. Last November, voters approved a $5.5 million bond to build a new library on the edge of downtown. Two small, mixed-use downtown redevelopment projects are also in the hopper. At the city's insistence, a new downtown Sav-On drugstore is not simply a faceless box; instead, the blank walls are set back from the street and an attached restaurant with patio seating faces Azusa Avenue. Cole and other believers also convinced developers to build something other than stereotypical, lower-end single family homes. Several small projects of houses selling for $250,000 to the lower $300,000s have proven popular. While still suburban and automobile-dependent in nature, the new projects have incorporated some neo-traditional elements such as street trees and homes with front porches. One development now under construction takes Azusa housing up another notch. Standard Pacific's 327-unit Mountain Cove subdivision will offer homes ranging from about $350,000 to more than $500,000. They are the most expensive houses ever built in Azusa, and many people, including Cole, see Mountain Cove as another step in the city's comeback. Others are not so sure. The project is decidedly not New Urbanist — it will be gated, it contains no affordable units and it is isolated from the rest of town. Environmentalists protested the project, and some people raised concerns about potential San Gabriel River flooding. "It's a very sensitive area," said Mayor Madrid, who cast the lone dissenting vote on Mountain Cove. "It should not have been in the 100-year floodplain. It should not have been in undisturbed areas. It should have been less dense and should look like its part of the national forest — and not like something that is part of Irwindale and is plopped down there." Cole defended the project design as sensitive and said gates were needed because Mountain Cove is along Highway 39, which provides heavily used access to the nearby Angeles National Forest. And, he said, farming, paintball games and other uses had already degraded the site. The next phase Arguments over half-million-dollar houses suggest that Azusa's problems are becoming the sort that most cities like to have. Belzer, who did baseline economic studies for Azusa's general plan update, said the city can benefit from the San Gabriel Valley's strong local economy and lack of available land. "I think that Azusa needs to continue to work on it's physical plant, if you will, so that it seems like a nice place to live," Belzer said. The city also should ensure that new industry and jobs match the available housing, she recommended. "I think one of the reasons Azusa is now coming back is because the city is working hard to keep its blue-collar work force," she added. Contacts: Christina Cruz Madrid, Azusa mayor, (626) 334-0954. Rick Cole, Azusa city manager, (626) 812-5238. Dena Belzer, Strategic Economics, (510) 647-5291. Steven Kellenberg, EDAW, (949) 660-8044. Miles Rosedale, Monrovia Nursery, (626) 334-9321.

An Orange County ballot initiative that sought to block the development of a civilian airport at the closed El Toro Marine Corps Air Station has been thrown out by a state appellate court. The court ruled that Measure F from March 2000 interfered with essential governmental functions, crossed the line into administrative activities, and was vague. The unanimous three-judge panel of the Fourth District Court of Appeal, Division One, upheld an earlier ruling by Los Angeles County Superior Court Judge James Otero (see CP&DR Legal Digest, January 2001). "Measure F is an unworkable and excessive exercise of the initiative power," Justice Richard Huffman wrote. Measure F was the third initiative addressing reuse of El Toro, a 4,700-acre plot of flat land in unincorporated Orange County and the City of Irvine (see CP&DR Economic Development, May 2001; Insight, April 2000; Local Watch, November 1999; Base Reuse, December 1994). The first initiative was the voter-approved Measure A in 1994, which designated El Toro as an airport in the county's general plan. Two years later, voters rejected Measure S, which sought to repeal Measure A. Since then, the county Board of Supervisors, which is divided 3-2 on the issue, has spent millions of dollars planning an El Toro airport that could handle at least twice as many annual flights as nearby John Wayne Airport. But El Toro reuse is extremely controversial — several communities near the base have incorporated as cities primarily to fight the airport plan — and opponents qualified Measure F, the "Safe and Healthy Communities Initiative," for the March 2000 ballot. The complex initiative required two-thirds voter approval of any plan to site an airport, jail or hazardous waste dump. Everyone conceded that the proposed El Toro airport was the target of Measure F, and 67% of voters approved it. Airport supporters immediately sued. The trial court granted a stay, Measure F never took effect and the county has continued with airport planning. In December 2000, Judge Otero ruled Measure F was unconstitutional. Airport opponents, who defended the lawsuit in place of the county, appealed. But the Fourth District said Otero got nearly everything right. The state Supreme Court upheld the right of citizens to amend general plans via initiative in the landmark case of DeVita v. County of Napa, (1995) 9 Cal.4th 763 (see CP&DR Legal Digest, April 1995). The court in DeVita also upheld use of an initiative to establish a subsequent vote requirement for certain, future land use decisions. But the Fourth District held that Measure F was a different creature than the Napa County initiative reviewed in DeVita because Measure F "is not an act that directly amends the general plan or provides other substantive policy," Justice Huffman wrote. "Rather, it essentially imposes procedural hurdles upon the planning process." The court held that Measure F interfered with two essential government functions, namely, land use planning and fiscal management. For example, Measure F requires the Board of Supervisors to conduct public hearings in every city potentially affected by a proposed airport, jail or hazardous waste dump. The initiative also could be read to require public votes other than a final one on project development because the initiative requires votes on "any act by the county to approve" a project. The initiative also barred the county, with certain exceptions, from spending money for such projects unless voters approved. "Measure F … essentially restricts the Board from carrying out a legislative policy already set by the voters when they enacted Measure A," Huffman wrote. The appellate panel also ruled that Measure F trod on administrative acts, which are not subject to initiative and referendum. "There is no overt statement that the previous legislative policy declared by the prior initiative will be changed, but the manner in which Measure F would restrict the Board's administrative discretion with voter approval requirements places the subject initiative firmly within the administrative category of voter enactments which are not permitted," Huffman wrote, citing City of San Diego v. Dunkl, (2001) 86 Cal.App.4th 384. "It is clear from the language of Measure F that it is an effort to administratively negate otherwise valid planning activities that have not yet been fully carried out pursuant to Measure A. Accordingly, it is not a valid subject of an initiative measure," Huffman wrote. Furthermore, the court ruled, the initiative was "so vague as to be an unworkable interference with the Board's duties." Restrictions on spending "clearly circumscribe the discretion of the Board, but it is not possible to tell to what extent," Huffman wrote. "Who is to decide what spending is necessary, or for what purposes that are sufficiently related to the project?" The court further held that Measure F appeared to violate the "single-subject" rule that applies to initiatives. And it appeared to be a local initiative that addresses matters of statewide concern — the planning of a large airport — which violates the state constitution. Airport opponents vowed to seek state Supreme Court review of the decision. Additionally, Orange County voters are scheduled to vote on El Toro again in March. Among other things, Measure W would, in fact, repeal 1994's Measure A. The Case: Citizens for Jobs and the Economy v. County of Orange, No. D037543, 02 C.D.O.S. 115, 2002 DJDAR 137. Filed January 4, 2002. The Lawyers: For CJE: Dana Reed and Bradley Hertz, Reed & Davidson, (213) 624-6200. For the county: Benjamin de Mayo and Thomas Agin, assistant county counsels, (714) 834-3300. For airport opponents: Steven Mayer and Richard Jacobs, Howard, Rice, Nemerovski Canady, Falk & Rabkin, (415) 434-1600.

County officials are questioning the state's housing allocation process, which often requires counties to plan for thousands of housing units even as they are also planning to protect agricultural land and open space. Does it make sense, they ask, for a county with limited infrastructure to plan for urban growth when incorporated cities are better positioned to handle new development? The issue has arisen recently in Napa, Sonoma, and Solano counties. All three are semi-rural counties on the edge of the Bay Area whose local governments were required to submit draft housing elements to the state on January 1. And, to varying extents in all three counties, growth is directed to incorporated cities — away from farmland and open space. In Napa, county officials are currently meeting with city officials to see if they can agree on shifting housing allocations. Said Napa County Supervisor Bill Dodd, "Consider the fact that we're an agricultural county, and the fact that the state always laments the loss of agricultural land, and the fact that HCD equates agricultural land and open space as land available for housing. There is a huge disconnect there." Alex Amoroso, senior planner for the Association of Bay Area Governments (ABAG), which allocates fair-share housing goals for the nine-county region, understands what Dodd is saying. During the Bay Area's next round of housing element updates, planners need to weigh agricultural and open space needs, he said. ABAG will have to begin the next round soon, as housing elements must be updated every five years under state law. "I think that the unincorporated planning issue is something that we need to address, just because more and more counties are moving toward slow growth," Amoroso said. Julie Bornstein, director of the state Department of Housing and Community Development (HCD), said the allocation of housing targets within a region is up to the local council of governments (COG), such as ABAG. State housing officials do not necessarily care how a COG divvies up the number of units for which the state says a regional must plan, she said. "From the state's standpoint, we would hope that additional housing units would be accommodated where there is some infrastructure," Bornstein said. "We want to discourage sprawl and encourage preservation of farmland." The state and regional housing allocation processes are among the topics of discussion for a housing element reform working group that is meeting in Sacramento (see , November 2001, in the Archives). The working group, headed by Assemblymembers Alan Lowenthal (D-Long Beach) and Patricia Wiggins (D-Santa Rosa), has been meeting since the close of the 2001 legislative year and includes representatives from across the spectrum — local government, developers, environmentalists and housing advocates. The participants have not yet reached many agreements, but some hope that a legislative package emerges from the working group later this year. The legislation would likely include increased enforcement of housing element compliance, and measures to make the housing element law work better for local governments, according to sources at the Capitol. The Napa County experience Officials in Napa County and their neighbors in Sonoma and Solano counties contend the housing element law does not work well from them. With guidance from Wiggins, Napa County established a committee of two county supervisors and two representatives from each of the five cities in the county. The committee has met only a few times since forming in late 2001. The idea is to think up ways for the cities to relieve the housing burden on unincorporated Napa County, and for the county to compensate the cities for taking additional housing. During the regional housing needs determination, ABAG assigned unincorporated Napa County 1,969 housing units, or 28% of the county's overall allocation. Yet the only county areas with much infrastructure are the small communities of Coombsville near Napa, and Angwin outside of St. Helena, and around the Napa County Airport between Napa and American Canyon. Furthermore, Napa County has a number of policies — some of which voters imposed — that protect farmland and the watershed from development. The most likely place for housing development in unincorporated Napa County is in the pastures near the airport, where the county has struggled since the 1980s to build an industrial park (see , September 2001, in the Archives). Supervisor Dodd, however, said planning houses near the airport "is the worst kind of planning." So one possible solution would be for the cities of Napa and American Canyon to annex industrial land near the airport in exchange for accepting more housing units. Napa Vice Mayor JoAnn Busenbark said the cities are not willing to "bail out" the county, but they are willing to address long-term land use planning. Napa, Yountville, St. Helena and Calistoga all rely heavily on the wine industry and related tourism. "It's got incredible potential because of the players around the table," Busenbark said of the new committee. "It's driven by this really intense desire to save our piece of the world." Amoroso said ABAG is watching the Napa County working group. The goal of the state housing element law is to divide the housing burden evenly across a region, but it is fine if local governments want to redistribute the housing numbers within their sub-region, he said. Solano County may attempt an approach similar to Napa County's Plenty of room for jobs Sonoma County officials have strongly criticized the ABAG regional housing needs determination. In fact, ABAG assigned unincorporated Sonoma County 6,800 housing units — about 30% of the county's entire allotment and more units than any other unincorporated county in the Bay Area. Yet the vast majority of development in Sonoma County is in the nine incorporated cities, all of which have growth boundaries. Sonoma County officials, like their counterparts in Napa, Solano and some other counties, argue that regional planners and state officials refuse to recognize growth-control policies aimed at protecting valuable farmland and open space. "I don't think we can make the numbers they want without busting our general plan," Sonoma County Supervisor Tim Smith told the Santa Rosa . But some people say counties are willing to fight only selected growth battles. "Some of those counties that are not set up well to deal with the housing issue are set up quite well to deal with the business end of things," Amoroso said. The ABAG housing determination was based primarily on projected growth in jobs and households within a jurisdiction, he noted. Businesses located in unincorporated Napa and Sonoma County, for example, continue to hire many thousands of farmworkers, winery workers and resort employees. Some environmental groups also question the counties' priorities. Unincorporated Sonoma County's regional housing allocation sounds daunting "if you think of large-lot, single-family houses," said Janet Stone, the livable communities program director for Greenbelt Alliance. The county, however, could meet its allocation of 1,300 very low-income units with about a dozen apartment complexes of roughly three acres apiece in unincorporated communities that already have some infrastructure, she said. "There is no reason why these areas couldn't accommodate compact housing development," Stone said. David Grabill, an attorney for Sonoma County Housing Advocacy Group, said hundreds of acres within the urban growth boundary for Santa Rosa are available for housing development. Some of the land is within the city's sphere of influence and some is outside. The real issue is a decade-old county policy that directs multi-family developments to cities. "The county is reluctant to allow apartment development in unincorporated areas, although they have to do it," said Grabill, whose suit over the county's previous housing element resulted in a court order that severely restricted subdivisions and rezonings. "They have the ABAG numbers, just like all the cities do. If the county doesn't provide its share, that just puts more pressure on the cities to provide lower-income housing development." After months of wrangling, county officials adopted a housing element that they say accommodates the mandated 6,800 units. In fact, said Deputy Planning Director Pete Parkinson, the county did not have to rezone any land because there are adequate sites available in existing unincorporated urban service areas. The county will consider residential projects close to those urban service areas if some development already exists, he said. The housing element approved by Sonoma County supervisors in late January allows affordable housing developments of up to 20 units-per-acre in commercial and industrial zones, contains provisions for inclusionary zoning, relaxes the regulation of second units, offers density bonuses of up to 100%, and calls for linkage fees on commercial development to fund housing programs. The provision of sewer service remains a significant problem, Parkinson said, because the largest unincorporated urbanized areas are served by the City of Santa Rosa, which is not willing to provide unlimited hookups. Small sanitation districts elsewhere have minimal capacity, he said. The cost and time required to build new wastewater treatment plants is potentially prohibitive, he added. Statewide implications The battle that Napa, Sonoma and Solano counties have fought is likely to reach far outside the Bay Area in coming years, when other regions complete the regional housing allocation process. Some rural counties welcome housing growth in unincorporated territory, while others — especially some counties in the Sierra Nevada foothills and along the coast — do not. "I think the state has a real challenge, and that's not lost on me," Napa County Supervisor Dodd said. "The point of this is not to be critical of the state … we're frustrated. We need to make sure that the agricultural nature of Napa County is as important to the state as it is to us." Dodd even suggested rethinking the regional approach to allocating fair-share housing units. The Solano county cities of Fairfield and Vallejo are located within a 20-minute drive of many Napa County job sites, he pointed out. "Isn't it more important to make sure you have homes available within a certain proximity to jobs, so that jurisdictional lines are not the issue?" Dodd asked rhetorically. Jurisdictional lines, however, present an issue that is unlikely to go away. Amoroso said that while ABAG might be willing to let a county and its cities reallocate housing units, no one is going to accept moving fair-share allocations across county lines. The issue that some people are avoiding is density, said ABAG's Amoroso. Protecting farmland and open space for the long-term requires building denser cities, he said. "What it all comes down to is, we're not building enough housing," Amoroso said. Contacts: Julie Bornstein, Department of Housing and Community Development, (916) 445-4775. Alex Amoroso, Association of Bay Area Governments, (510) 464-7955. JoAnn Busenbark, Napa vice mayor, (707) 258-7876. Bill Dodd, Napa County supervisor, (707) 259-8278. Janet Stone, Greenbelt Alliance, (415) 398-3730. David Grabill, Sonoma County Housing Advocacy Group, (707) 528-6839. Pete Parkinson, Sonoma County Permit and Resource Management Department, (707) 565-2563.