The Ninth U.S. Circuit Court of Appeals has reined in the U.S. Fish & Wildlife Service's ability to issue "incidental take statements" under the Endangered Species Act. In a grazing case from Arizona, the court ruled that the Service can prepare the statements only when it is likely that a private landowner's activity will "take" an endangered species. The court also concluded that the Service's preparation of incidental take statements in a variety of grazing permit cases was arbitrary and capricious. In the one instance when the Service's preparation of an incidental take statement was justified, the court found that the statement itself was flawed. The case was filed by the Arizona Cattle Growers' Association in response to the Fish & Wildlife Service's action on applications by a variety of the association's members for grazing permits on federal "allotments" from the Bureau of Land Management. The Service concluded that the issuance of the permits was not likely to jeopardize the survive of 20 different endangered species and further concluded that the grazing would not adversely affect the species' critical habitat. Nevertheless, the Service did proceed to issue Incidental Take Statements for the 20 species – an action that imposed additional responsibilities upon applicants. Under Section 7 of the Endangered Species Act, an incidental take statement is an advisory opinion which specifies the impact of "incidental takes" – that is, a "taking" of endangered species in the process of engaging in otherwise lawful activities. It also specifies conditions that the applicant must follow. The conditions contained in an incidental take permit are part of the "safe harbor" provisions of the Endangered Species Act. Following the permit conditions protects the applicant from prosecution under Section 9 of the Endangered Species Act (the prohibition on incidental take without a permit); ignoring the permit conditions subjects the applicant to potential penalties under the ESA. In two separate U.S. District Court opinions in Arizona, federal judges ruled that in order to issue an incidental take permit, the Service had to provide evidence of a listed species' existence on the land and show that "a take has occurred or is reasonably certain to occur." Before the Ninth Circuit, the Fish & Wildlife Service put forth a new argument: that it should be permitted to issue an incidental take permit "whenever there is any possibility, no matter how small, that a listed species will be taken." The cattle growers association argued that the Ninth Circuit should not consider this argument because it was put forth for the first time on appeal. The Ninth Circuit considered the merits of the new argument anyway – but ruled against the Fish & Wildlife Service and for the cattle growers. "As we believe that Congress has spoken to the precise question at issue, we must reject the agency's interpretation of the ESA as contrary to clear congressional intent," wrote Judge Kim McLane Wardlaw for a three-judge panel of the Ninth Circuit. Wardlaw went on to say that "the plain language of the ESA does not dictate that the Fish & Wildlife Service must issue an Incidental Take Statement irrespective of whether any incidental takings will occur." Quoting the legislative history from the House debate over the "safe harbor" provision in 1982, Wardlaw wrote: "If the sole purpose of the Incidental Take Statement is provide shelter from Section 9 penalties, as previously noted, it would be nonsensical to require the issuance of an Incidental Take Statement when no takings cognizable under Section 9 are to occur." She further criticized the Fish & Wildlife Service's internal handbook as misinterpreting the law. The court found that the Service's issuance of an incidental take statement was "arbitrary and capricious" in the case of six of the seven permits contained in the underlying two lawsuits. In the seventh case – involving the loach minnow and spikedace (two species of endangered fish), and grazing allotments along the Blue River in Apache-Sitgreaves National Forest – the Ninth Circuit found that the Service had made a case that the species could be harmed by the grazing and the issuance of an Incidental Take Statement was therefore justified. However, the court concluded that the Service's implementation of the Incidental Take Statement in that case was arbitrary and capricious because the service did not "properly specify the amount of anticipated take" and failed "to provide a clear standard for determining when the authorized level of take had been exceeded." The Cases: Arizona Cattle Growers' Association v. U.S. Fish & Wildlife Service, Nos. 99-16102, 99-16103, 00-15322, 00-1511, 01 CDOS 10416. Filed December 17, 2001. The Lawyers: For Arizona Cattle Growers Association: Jay Shapiro and Norman James, Fennemore Craig, (602) 916-5366. For U.S.: Fish & Wildlife Service: Lois J. Schiffer and M. Alice Thurston, Department of Justice Environment and Natural Resources Division, (202) 514-2000.

The Fourth District Court of Appeal has cleared the way for a ballot initiative regarding the future of the former El Toro Marine Corps Air Station to appear on the March ballot. The appellate court overturned a trial court ruling that allowed opponents of the initiative to contest the county counsel's title and summary of the initiative prior to the measure qualifying for the ballot. The unanimous three-judge appellate panel held that only proponents of an initiative could challenge the title and summary prepared by the county counsel prior to the measure qualifying for the ballot. " he proponent of an initiative is entitled to seek signatures in order to have the proposed legislation qualified for the ballot, subject only to the tempering effect of the county counsel's impartial title, and is not required as a condition to seeking signatures to also obtain the approval of its title from those opposed to the measure," Justice Alex McDonald wrote for the court. The Marine Corps closed El Toro — a 4,700-acre airfield lying mostly in unincorporated Orange County — in 1999. Reuse of the base as an airport has been the subject of three initiatives since 1994. In 2000, airport opponents drafted a ballot measure that would repeal a 1994 initiative that designated the base for development of a civilian airport, and instead earmark the property for a "great park," a university and office space. Allan Songstad and other airport opponents submitted their initiative to the county, and the county counsel's office prepared a title and summary. The measure's backers then began collecting petition signatures. However, former county supervisor Bruce Nestande and his pro-airport organization, Citizens for Jobs and the Economy, filed a lawsuit contending that the county counsel's title and summary were false, misleading and not impartial. Nestande asked the court to order preparation of a new title and summary and to block the Registrar of Voters from accepting signed petitions with the contested titled and summary. Orange County Superior Court Judge James Gray ruled that the title and summary were inadequate and misleading, and he granted Nestande's requests. The Fourth District stayed Gray's order and then took up the case. The appellate court ruled that Nestande did not have standing to challenge the title and summary so early in the process. The court said that Election Code § 9106 is clear: Only a proponent may sue to have a ballot title and summary amended prior to the measure qualifying for an election. In 1980, the Legislature approved Election Code § 9190, which allows any voter to challenge ballot materials after a measure has qualified for the ballot. In 1987, the Legislature enacted § 9106, which allows only a proponent — not any voter — to file a prequalification challenge to the title and summary. The court held that the Legislature must have made a conscious choice to restrict challenges prior to a measure qualifying. Nestande argued, among other things, that the Legislature required the preparation of an impartial title and summary to avoid misleading voters who are asked to sign a petition. Under the appellate court's reading of the law, the Legislature's intent would be undermined, particularly in instances where county officials support a ballot measure, Nestande argued. But the appellate panel rejected that argument, ruling that proponents have a right to pursue an initiative. "Furthermore, the opponents of an initiative have postqualification standing to challenge the title and summary that are included in the ballot materials before the public vote on the initiative," McDonald wrote. The Case: Songstad v. Superior Court, No. D038503, 01 C.D.O.S. 9884, 2001 DJDAR 12301. Field November 21, 2001. The Lawyers: For Songstad: Robert Thornton, Nossaman, Guthner, Knox & Elliott, (949) 833-7800. For Nestande: Frederic Woocher, Strumwasser & Woocher, (310) 576-1233.

Planners talk a lot about plans – and a lot about implementing plans – and a lot about projects. But they rarely talk about the relationships among all these things. A new study of Ventura County by Solimar Research Group and the Reason Public Policy Institute (RPPI) attempts to make this connection by examining what happens to "the best-laid plans" when projects are actually proposed and approved. The answer is not surprising: No matter what the plan says should be built, in the end, the approved project is usually a lot smaller. The Solimar/RPPI study was an attempt to determine whether Ventura County is likely to accommodate future housing demand within the urban growth boundaries adopted as part of the Save Open space and Agricultural Resources (SOAR) initiatives of 1998. The study examined the capacity for new housing development in the county under existing general plans and existing (or draft) housing elements. Not surprisingly, the capacity was not very large. In a county that currently has about 250,000 housing units, the additional capacity appears to be somewhere between 40,000 or 50,000 units – approximately a 15% to 20% increase. But the study also tried to link plans and implementation by examining what happens in the actual project approval process. This link between planning and implementation has almost never been examined. In fact, to the best of anybody's knowledge, only one previous study has been done – a study in Portland in the late '80s, which found that single-family projects were approved at 66% of planned densities, while the figure for multi-family projects was 90%. The Ventura County study found some similar results – a pretty dismaying prospect for practicing planners who believe in general plans. To conduct the analysis, Solimar and RPPI looked at 126 different residential projects that had gone through the approval process in nine different cities in Ventura County between 1996 and 2001. The important findings: * On average, residential projects were approved at about 55% of general plan capacity. The general plan capacity for the 126 projects was about 22,000 units. The approved projects totaled about 12,000 units. * Compared to actual zoning and specific plan capacity, projects were approved at about 80% of capacity. Capacity under zoning and specific plans (as opposed to general plans) was about 15,000 units. * Most surprisingly, almost all the difference between the plan and the project approval did not occur in the public approval process, but in the pre-application stage. All told, the 126 project applicants applied for only about 12,500 units – 56.8% of general plan capacity. The public review process only knocked out another 500 units, or 4% of the total general plan capacity. * However, it's interesting to note a few exceptions to the rule. Affordable housing projects and multi-family projects tend to be approved at close to plan densities – as do residential projects in specific plan areas. So what's happening? The researchers could not say for sure, but it seems likely that the developers bring in projects at well below general plan capacity based on conversations with the staff planners, who provide their best guess as to what the political tolerance for the project is likely to be. Interestingly, the planners' best guesses appear to be almost exactly on target – as the project for which developers apply is almost always what gets approved. These research results raise a troubling question for "smart growth" advocates. The smart growth ideal is to channel development into designated areas and, therefore, rearrange development rather than suppress it. But, clearly, Ventura County has only half of the equation. Its planning policy channels growth into specific areas through the use of urban growth boundaries, but actual planning implementation inside those boundaries is reducing housing densities. The entire Solimar/RPPI report can be downloaded from www.solimar.org or www.rppi.org.

As early as February, the Redondo Beach City Council could adopt a specific plan for about 150 acres of waterfront real estate that planners believe could become a new downtown. The "Heart of the City" specific plan envisions a broad mix of stores, offices, apartments, townhouses, live-work flats and parks in a part of town that has been dominated by a huge power plant and cut off from the ocean. For many years, Redondo Beach has been a "beach town" in name only. While nearby Hermosa Beach and Manhattan Beach have evolved as desirable, funky beach towns, Redondo never really had a chance. Redondo Beach's original downtown near the coastline was demolished in the name of urban renewal during the 1960s. Large, boxy structures, including the Civic Center, replaced the organic downtown, and the city essentially turned its back on the beach. The historic harbor is practically cut off from the rest of town. "It's a site that has been victimized by poor planning practices," said Michael Freedman, of Freedman, Tung and Bottomley, whom the city hired as a specific plan consultant. "It's not what you would expect to find in such a lovely setting." But while Redondo may lack a beach town vibe, it does have what Planning Director Bill Meeker calls "a once in a lifetime opportunity" to remedy the situation. About three years ago, AES Corp. announced that it planned to downsize its huge power plant along the coast in Redondo Beach and redevelop about half of the 50-acre site. Public and private planners immediately began considering suburban-style big-box centers for the site. As they got further into reviewing things, however, city officials realized they had a chance to address not only the AES site, but also the waterfront itself, which Meeker describes as "17 1/2 acres of asphalt parking with a smattering of retail." The city brought in the Urban Land Institute's Advisory Services Panel to review the situation and present some options. The ULI found that Redondo Beach was not benefiting from its waterfront as much as its neighbors were. The ULI found that there was little activity along the waterfront, that the waterfront lacked a sense of place and that the primary north-south thoroughfare was unfriendly to both pedestrians and automobiles. "Public investment and private development in the study area have occurred only incrementally and intermittently over the years," the ULI report stated. "Consequently, the whole is not equal to the sum of the parts." "The ULI," said Freedman, "provided a great boost in terms of helping the community understand that they could get investment and that they needed to focus on more than just the AES site. They totally raised the bar as far as what the community could expect." After the ULI issued its report in March 2000, city officials decided to pursue a specific plan for a district, of which the AES property is only a small part. City officials brought in Freedman's San Francisco-based firm and together they designed a process that leaned heavily on public involvement. During the later half of 2000, Freedman conducted four public workshops, each of which attracted more than 300 people. He also organized a number of meetings with stakeholders. Last April, the city released a draft plan. It did not necessarily match the ULI's recommendations, but instead built on the concept of creating a vital city core. City planners then began an extensive outreach and educational program, Meeker said. Planners met with stakeholders, civic groups and all 18 city commissions. The city also maintained a detailed website that contained every public document from the process. Later in the year, planners conducted several public workshops on the Heart of the City specific plan for the Planning Commission "This is probably the most ambitious and most open planning process the city has ever undertaken," Meeker said. Despite the publicly driven process, naysayers remained. When the specific plan and an environmental impact report reached the Planning Commission for a formal public hearing in December, dozens of people raised questions and spoke in opposition. The essence of their complaint is that the plan would allow too much development in too small an area. Residents contended that the plan would allow housing development that is too dense, would bring too much traffic to town and would not provide enough parking. Some people also complained that they did not have time to review all of the documents. Freedman conceded that the project has been "very, very frustrating" because it has been so hard for the community to reach consensus. Except for the specific plan area, Redondo Beach is a built out community, and its residents have conflicting desires, he said. The plan divides the area into districts � three waterfront districts, the "Catalina corridor" and public space along the water. The waterfront districts are all mixed-use areas, with a concentration of businesses related to the adjacent harbor. Two waterfront village core areas emphasize ground floor retail, restaurants, professional services, and arts and civic facilities. The Catalina corridor is the primary residential district, with multi-family residences, offices and neighborhood-serving commercial uses allowed. The plan envisions Catalina Avenue as a "grand boulevard" with wide sidewalks and extensive landscaping. At full build-out, the plan would allow about 600,000 square feet of commercial and office space, and approximately 3,000 new residences. Development would occur on vacant infill sites and on real estate that has already been developed but is underutilized. The plan details several parks, greenbelts and access points to the water. Currently, The Strand, a popular multi-use pathway that runs for many miles along the beach, is interrupted in the specific plan area. The plan calls for forging a connection, which Meeker thinks is essential. "Right now, people just don't have the feeling that they can use The Strand to visit Redondo Beach because they have to go out onto Harbor Drive, and they feel they conflict with traffic there. So they end up turning around and going back to Hermosa Beach," Meeker said. The activity level that The Strand represents is exactly what Redondo Beach officials seek for their new downtown. "We're trying to create a very pedestrian-oriented atmosphere here � create public passageways down to the waterfront. A number of the south bay cities are older cities and don't have that opportunity," Meeker said. Freedman and officials insist that the specific plan does not intend to turn Redondo Beach into a tourist zone. The district is designed with locals in mind. "They lost their downtown and they want to get that back at the waterfront," Freedman said. The City Council is scheduled to begin considering the Heart of the City specific plan in February. Once the council adopts the plan, it will go to the Coastal Commission for approval. The city does not have a certified local coastal plan. The Heart of the City specific plan will to the Coastal Commission as part of a proposed LCP, Meeker said. Coastal Commission review could take some time. Contacts: Bill Meeker, City of Redondo Beach, (310) 318-0637. Michael Freedman, Freedman, Tung and Bottomley, (415) 291-9455. Heart of the City website

Riverside County officials are scheduled to start rolling out draft plans and environmental impact reports in February as one of the most ambitious planning efforts in California history reaches the homestretch. County officials vow that they will complete their integrated planning process and the Board of Supervisors will adopt a new general plan, transportation plan and habitat plan before the end of this year. If supervisors do adopt all three plans, it would culminate a $32 million, 3 1/2-year planning process. The combined plans are intended to let the county accommodate another 20 years worth of rapid growth, in part by outlining more than $10 billion worth of investment in transportation and habitat projects. "We can see the goal line. We're still pounding out yardage inch by inch," said Supervisor Tom Mullen, who receives most of the credit for starting the Riverside County Integrated Plan. County planners, consultants and interest group representatives have put in untold hours since the planning effort began formally in mid-1999. Simply coordinating the process has been an enormous task (see CP&DR, February 2000). There have been hundreds of publicly noticed committee meetings and thousands of internal meetings involving several hundred participants. Planners have tried to remain on schedule, but the timetable has slipped by several months, and some people worry that the process could stall later this year when the plans reach the Board of Supervisors. Indeed, critics are making themselves known. Various cities have gripes with aspects of all three plans, builders worry that the plans are setting the stage for the imposition of stiff impact fees, and environmentalists say the general plan encourages inefficient development. Plus, there is some concern that average citizens have not paid much attention so far and could protest portions of the plans during public hearings later this year. "The biggest frustration is with keeping the general public informed," said Edwin Studor, who is managing the transportation planning for the county. "At the present time, it seems like very few people know this is going on, and it's really important." The same goal ties together the three plans: accommodation of about 1.2 million more residents in western Riverside County — nearly a doubling of the current population. The land use plan is mostly a suburban model that continues to permit large tracts of single-family homes. But it does designate about a dozen community centers where the county would allow development dense enough to support public transit. The transportation plan is supposed to establish a few new transportation corridors so that the county can begin protecting potential alignments from urban encroachment, and pursue new freeways, express bus lanes and rail lines. The habitat plan mitigates the impacts of the home building and transportation projects by designating areas for about 500,000 acres of permanent open space. Officials hope the habitat blueprint ends the piecemeal approach to endangered species and habitat issues. "Riverside County is being asked to pick up the tab for all that wasn't done with the environment, with infrastructure and with housing elsewhere in the basin," Mullen said. Growth projections Mullen began laying the foundation for the RCIP in 1996, when he started talking with county and regional planners, state officials and even Clinton administration appointees. After seeing the growth projections for Riverside County, Mullen decided the county needed to get serious about increasing its transportation capacity because most freeways in western Riverside County were already jammed. But he also believed that any major public works plan had to consider environmental factors up front — not at the end of the process, as is typical in California. As his meetings progressed, Mullen heard more and more complaints about the county's general plan from both builders and environmentalists. Eventually, it became clear — at least to Mullen — that the only option was to prepare three plans at the same time. In mid-1999, the Board of Supervisors, county planners, a host of consultants and scores of "stakeholders" started work on the Riverside County Integrated Plan (RCIP) for the western end of the county. After completing a community visioning process in late 1999, planners approached the RCIP with some significant assumptions that have received little challenge: Riverside County would continue to grow rapidly, with its population almost doubling to nearly 3 million between 1999 and 2020; many western county cities would remain bedroom communities for job centers in Los Angeles and Orange County; homes for workers in new Riverside County commerce centers would lie even farther east; and some major new regional freeways were needed. While, the RCIP is something akin to statewide plans found elsewhere, there is no comparable model for the county to follow, said Richard Lashbrook, director of the Riverside County Transportation and Land Management Agency. "I think it's going well in terms of moving through the process," Lashbrook said. "It's just amazing to me the amount of work and amount of time it takes to get through portions of the effort, especially when you have to deal with other agencies — state and federal — cities, stakeholders groups." Mullen and other county officials have insisted that stakeholders drive the process, and the interest group representatives who have participated in the three large advisory committees say that county has kept its word. Stakeholders were the source of many concepts in all three plans. The land use plan Riverside County's 18-year-old general plan satisfies almost no one, partly because the plan has no land use map. The existing plan contains more than 200 different land use designations, making interpretation difficult for staff members, developers and the public, said Jerry Joliffe, who is heading up the general plan portion of the RCIP. Furthermore, county supervisors began repeatedly amending the plan almost as soon as they adopted it. The new plan will have more certainty, Joliffe said. The foundation components of the draft land use plan are suburban-style development areas, rural areas with small ranches, and agricultural land and open space, Joliffe explained. The draft plan does not call for definite boundaries — nor does it use the terms "growth boundary" or "limit line" — between the three components, but the proposal allows supervisors to make amendments only every five years. "We want to make sure we have edges between these communities," Joliffe said. Single-family homes on 7,200-square-foot lots have dominated Riverside County development for years. The draft plan seeks to boost density in about a dozen community centers called "transit oases" by offering developers density bonuses in exchange for architectural features, public amenities, and higher fees to fund open space purchases elsewhere. The draft plan also contains a transfer-of-development-rights program that would allow landowners to shift development potential away from rural areas, or to form small development clusters in rural areas. "Our plan is not one that limits growth," Joliffe emphasized. "We want to make sure we are going to manage that growth to the best of our ability." Thus far, builders have voiced support for the draft plan because it provides them with more certainty and provides many acres for future subdivisions. Environmentalists also like the certainty, but they would like to see less emphasis on large housing tracts. "My gripe," said Dan Silver, of the Endangered Habitats League, "is that there is still too much low-density development planned." Some cities, especially those along the Interstate 215 corridor, have also complained about the large-scale development that would be allowed in unincorporated areas near cities. The cities say the county should discourage development approvals if property is not annexed to a city, and that any development the county permits should meet city standards for streets, sewer, water and lighting because a city will likely end up annexing the area eventually. The county's continued approval of large subdivisions during the RCIP process has compounded environmentalists' and cities' concerns. The county has approved numerous large tracts since 1999, including of the county's largest ever in December — a 4,600-parcel subdivision in French Valley, several miles east of Murrieta. The county now has approximately 100,000 approved single-family parcels awaiting development. The transportation plan The emerging transportation plan is the result of CETAP — the Community and Environmental Acceptability Process. The idea is to settle on wide transportation corridors for freeways and transit systems. County officials want to preserve as much right of way as possible. They also hope to designate new regional routes for freeways linking western Riverside County with other parts of the metropolis. Studor, of the county's transportation and land management agency, said CETAP is the right approach. "The way land use planing and habitat planning occurred in the past is, you come up with the land use plan. And after you adopt that, oh, by the way, we'll need to do some transportation planning. And everything left over is open space, so that's habitat," Studor said. In this case, transportation planners have modeled their work on the likely built environment as of 2020. During modeling, planners learned that various growth alternatives did not significantly affect freeway demand within the county, nor needed freeway and transit services to job centers outside the county, Studor said. During the CETAP, planners and stakeholders produced a list of potential routes and have been refining the options so that there is one new east-west corridor, a new north-south corridor and one new link to San Bernardino and Orange counties, respectively. In December, the Board of Supervisors endorsed a corridor linking Moreno Valley in Riverside County with Redlands in San Bernardino County via a tunnel through Box Mountain east of Riverside. But while San Bernardino County has been willing to cooperate, Orange County has not. And one thing Riverside officials desperately want is a route through the Cleveland National Forest to Orange County. Currently, Highway 91 is the only freeway connecting the counties, and during the 1990s it became one of the most congested in Southern California. Supervisor Mullen conceded that any route over — or boring through — the mountains separating Riverside and Orange counties is controversial, but he believes the two sides can resolve their differences. City of Corona Planning Director Brad Robbins agrees with Mullen on the need for a new route to Orange County. Surface streets in Corona, on the far western edge of Riverside County, get flooded with commuter traffic daily as motorists seek alternatives to the 91 freeway. But when Robbins looks at the draft transportation plan, all he sees are more routes into Corona from the east — and no way to move people farther west. Barry Burnell, of T&B Planning, who has represented landowners and developers during the RCIP process, said Riverside County must solve its intra-county transportation issues as well as the regional congestion that has become a plague. But Burnell said it makes more sense to add regional transit to existing freeway corridors, such as the 215 and the 10, and provide links to new local transit, than to build a new contiguous system of freeway and transit. Burnell's biggest concern, however, is funding. The county plans to seek voter approval later this year for extension of a half-cent transportation sales tax that is due to expire in 2008. Such a tax would let the county leverage state and federal funds, but everyone agrees the sales tax override will not be enough to fund a system that could cost at least $9 billion to build. The draft plan will call for uniform transportation impact fees to be assessed by the county and the cities. That will be a political fight planners alone cannot settle, Lashbrook said. And it's a fight that Burnell vows to take up. Developers are willing to help, but they will not pay a disproportionate share, he said. The habitat plan The Multiple Species Habitat Conservation Plan (MSHCP) might be the most ambitious aspect of the RCIP. The draft plan involves up to 164 species and preserves about 510,000 acres of land — making it the largest MSHCP in the country, according to Christine Lovelady, the county's lead planner for the habitat plan. Endangered species have been the most controversial land use issue in Riverside County since the 1980s, partly because local elected officials have been reluctant to change their pro-property rights approach. After the federal government declared the Stephens kangaroo rat an endangered species in 1988, local officials refused to take a broad approach to species planning (see CP&DR, April 1996, December 1994, September 1994). Instead, city and county officials spent nearly eight years writing a conservation plan for the "K-rat" — only to have the joint powers authority that created the plan quickly fall apart. In the meantime, environmentalists and regulatory agency scientists have sharpened their focus on endangered species issues in Riverside County. The emphasis comes partly because similar habitat in Los Angeles County was wiped out by post World War II development that never considered plant and animal habitat. The MSHCP would serve as mitigation for the urban development and transportation projects encompassed by the other plans. The plan will maximize use of land already owned by the public, offer incentives such as fee credits and density bonuses to direct development away from sensitive locations, and focus on willing sellers, Lovelady said. The draft plan outlines large "envelopes" that contain candidate land for species protection. "It is an understandable compromise that provides more certainty than we've had in the past," Lovelady said. State and federal regulators and biologists have participated a great deal in the habitat planning process, giving the plan a strong scientific basis, said Lovelady. She believes environmentalists should get behind the draft plan because it provides big chunks of land, which should attract state and federal dollars. Silver, who has been involved in environmental issues in Riverside County for years, expressed some concern about the voluntary nature of the MSHCP. But he said the proposed uniform mitigation fee combined with state and federal funding could provide enough money to carry out the program. "It's been an extremely difficult process to work in because of the strong property rights atmosphere," said Silver, who is a member of all three advisory committees. While landowners have expressed concerns about the habitat plan, city officials could pose an even bigger obstacle because they would have to impose a fee of potentially several thousand dollars per unit, and set aside land for habitat — policies that a number of cities have been fighting for 15 years. For example, the draft plan sets aside thousands of acres in the City of Beaumont's sphere of influence for habitat, but "there doesn't seem to be any consideration given to the loss of economic development options on developable land," City Planner Earnest Egger said. Furthermore, Beaumont has no interest in performing the detailed biological assessments for development applications, as required by the draft habitat plan, Egger said. The city has made the county something of a counter-offer but has been "largely ignored," he said. "They have done an absolutely horrible job of getting the cities involved and getting issues resolved," Egger said. "They've tried to strong-arm the cities at the last minute without any of the underlying issues ever getting resolved." Supervisor Mullen, however, defended the county's outreach to cities, and planners pointed to the countless public meetings regarding the MSHCP. "Are we working toward solutions? Yes," said Mullen. "The cities understand what's at stake. I'd say we're probably 80% of the way there." Burnell, the property rights man on all three advisory committees, said an MSHCP that provides a method for preserving land and a related program for ongoing funding is one of his priorities. "We've identified a need to house another 1.2 million people in the next 20 years in western Riverside County. If we have to go duke it out with the environmentalists and the NIMBYs over every project, we're not going to get very far," Burnell said. A complicated process To the general public and elected officials, a planning process that lasts three years sounds like a long one. But to planners involved in the RCIP, three years seems awfully short. "You want to have all of these people involved — that's great. But it makes it hard to get business done," said Lashbrook, the county's top planner. "At some point, and we're getting close to that point, you have to finish. And sometimes finishing means you have to narrow the number of people involved." The "integrated" aspect of the RCIP requires that the 12 cities in western Riverside County — as well as some neighboring counties — jump aboard the bandwagon. Yet such regional agreement appears uncertain. "The idea and the concept are good," said Beaumont's Egger, "but just how they've gone about the process has not been the best." "It's really a good idea," added Corona's Robbins, "it just hasn't been sold right to use or any of the cities. … Ultimately, if we don't agree with any of it, we don't have to do any of it." Silver, of the Endangered Habitat League, is concerned about these turf battles. "The cities' nonparticipation is the biggest flaw in this so far," he said. Mullen has heard the carping but appears determined to see the project through. "We've got the opportunity to do something right — not perfect, but right," he said. Contacts: Tom Mullen, Riverside County supervisor, (909) 955-1050 Richard Lashbrook, Jerry Joliffe, Christine Lovelady, Ed Studor, Riverside County Transportation and Land Management Agency, (909) 955-6800. Dan Silver, Endangered Habitats League, (323) 654-1456. Barry Burnell, T&B Planning, (714) 662-2774. Earnest Egger, City of Beaumont, (909) 769-8520. Brad Robbins, City of Corona, (909) 736-2262. RCIP website: http://www.rcip.org/

Farmland preservation, urban sprawl, economic development and long-range planning have collided in the City of Gilroy. Officials are working toward designating 664 acres of tomato fields for high-tech, campus-style development, but opponents of the idea say the city should concentrate on 1,200 acres already designated for industrial growth. What is known as Gilroy's "660 plan" has become a divisive issue in this town of 42,000 people about 25 miles south of San Jose. During the November City Council voters elected two supporters and one opponent of the industrial proposal. The election gives the 660 plan 5-2 backing on the City Council. Despite the apparent political support for the industrial designation, the controversy remains hot, as the Santa Clara County Local Agency Formation Commission is raising questions about what some people see as needless conversion of farmland. "We believe this is fundamentally an argument over where jobs should be located," Mayor Tom Springer said. The argument also encompasses what types of jobs Gilroy should have. For decades, farming has dominated this community along Highway 101 at the upper end of the Coyote Valley. The town has become known as the garlic capital, and its garlic festival attracts tens of thousands of people every year. During the last 20 years, however, Gilroy has evolved into more of a bedroom community, and an estimated 8,000 people now commute from the Gilroy area to Silicon Valley. About 10 years ago, a county task force produced a report recommending ways to keep agriculture alive in the Gilroy area. The plan emphasized "vertical integration" projects that involve food processing and packaging, in addition to the growing of crops. In 1996, the city, the county and LAFCO approved an agreement designating 20-year agricultural boundaries. In exchange for the city's keeping urban development within those boundaries, LAFCO agreed to look favorably on Gilroy annexation requests within the boundaries, according to Neelima Palacherla, LAFCO executive officer. This is where the 660 plan gets sticky because the land involved lies outside the boundary. In fact, Gilroy officials did not get serious about changing the designation of the site until they were nearly three years into a General Plan update and had already released a new draft plan. One of the primary reasons for updating the 20-year-old general plan is to increase the amount of property designated for industrial growth, Planning Division Manager William Faus said. After reviewing the draft general plan in late 1999, the City Council sent planners back to work on a revision that reconsidered 664 acres just east of Highway 101, next to a thriving factory outlet center along the freeway The city's 42-member General Plan Update Committee divided over whether the site was appropriate for industrial development. Eventually, 24 members signed a letter opposing the proposed industrial land use designation — what became known as the 660 plan. When a majority of councilmembers indicated support for the 660 plan during public hearings for the general plan during spring of 2001, committee members said they felt betrayed. By the time of the fall City Council campaign, the 660 plan dominated most political discussion, and the election became a referendum on the idea, said Mayor Springer, who contended that most opponents were out-of-town environmentalists. Voters choose industrial development when they elected 660 plan supporters Craig Gartman and Robert Dillon, and tossed out incumbent Lupe Arellano, who opposed the plan. Nine-year incumbent Charles Morales was the only plan opponent to win in November. Springer said the site is perfect for campus-style development because it is right next to the outlet center, and open land to the south is already zoned for development. The site is within 300 feet of a sewer trunk line and a city well sits on the edge of the property. "It isn't like this is land off to one far side of the city. It is within not only the sphere of influence, but within a stone's throw of the City of Gilroy," Springer said. Moreover, the site is a large block of undeveloped land with only about a dozen owners, so the city would not have to assemble multiple small pieces to attract a big developer, Faus said. But Morales said the 660 plan amounts to "urban sprawl" and is premature. "To me, it doesn't make sense. Let's develop what we have right now," he said. The city already has about 1,200 acres designated for industrial development, and Silicon Valley tech companies have shown little interest in reaching that far south. No one is sure what the demise of Cisco System's proposed Coyote Valley campus means for Gilroy, but it is another indication that the tech building boom is on hold, at least for now. (Cisco had proposed a 6 million-square-foot campus in southern San Jose, less than 20 miles from Gilroy, but the company bailed out of the project late last year because business was so bad.) "The vacancy rate is very high right now, especially with the economy we are in," Morales said. In mid-December, the LAFCO board authorized Palacherla to send a letter to Gilroy outlining concerns about the 660 plan. The LAFCO board did not take a formal position, but, according to the letter, the plan does appear to conflict with the 1996 farmland agreement among the city, LAFCO and the county. The site is prime farmland within the agricultural preserve and much of it lies within the 100-year floodplain, she explained. "The city has well over 40 years worth of vacant industrial land within its city limits," Palacherla said. Springer said there is no reason for LAFCO to get involved now. The city has not filed an annexation request — and probably will not for at least 10 years, he said. He did concede that the site has both flooding and traffic constraints. About one-third of the property would have to remain undeveloped because of potential flooding, and resolving traffic impacts from the build out of a 5,000-employee campus would cost about $140 million, the mayor said. City officials are simply trying to get in position to attract Silicon Valley-type jobs in the future, because Gilroy cannot make it as only a farm town or a commuter village, Springer said. But Morales said if there were strong market interest in building a large tech campus in Gilroy, developers would manage to assemble the needed properties from the existing inventory, he said. The Gilroy City Council is likely to make a final decision on the revised general plan — including the 660 plan — and an associated environmental impact report later this year. Contacts: Tom Springer, Gilroy mayor, (408) 846-0202. Charles Morales, Gilroy councilman, (408) 846-0400. William Faus, Gilroy planning division, (408) 846-0440. Neelima Palacherla, Santa Clara County LAFCO, (408) 299-5127.

The Interior Department did not need to prepare a programmatic environmental impact statement before proceeding with water transfers in western Nevada, the Ninth U.S. Circuit Court of Appeals has ruled. The court further held that the EIS which the U.S. Fish & Wildlife Service did complete adequately assessed cumulative impacts to groundwater and farming. Writing for the unanimous three-judge panel of the Ninth Circuit, Judge Richard Paez said that the court should not "fly-speck" the work of the Fish & Wildlife Service and argue that the agency could have done things differently. "As with the programmatic EIS discussed above, if we were preparing the EIS, we might insist on additional detail," Paez wrote. "That is not our role, of course. Rather we review the legal sufficiency of the EIS." And, the court held, the document was legally adequate. At issue in the case is use of the Truckee and Carson rivers, which has been the subject of political and legal contention for about 90 years. Indians, farmers, cities, utilities and the federal government have all fought over the water rights. In 1990, Congress passed the Truckee-Carson Pyramid Lake Water Rights Settlement Act to address comprehensively the loss of wetlands in western Nevada, the health of Pyramid Lake on the Paiute Tribe reservation north of Reno, and the endangered cui-ui fish that lives in Pyramid Lake. Essentially, the Settlement Act calls for providing more water to the lake and to wetlands in Nevada's Lahontan Valley that have been shrinking for many years. The Fish & Wildlife Service studied four strategies for acquiring water rights and a "no action" alternative. The agency settled on a plan to purchase 55,000 acre-feet of water from willing sellers in the Carson Divide, which the agency would add to already-acquired water rights from other sources. In September 1996, the Fish & Wildlife Service published a final EIS on water rights acquisition for Lahontan Valley wetlands in Churchill County, Nevada. Churchill County and the City of Fallon, Nevada, sued, arguing that the federal agency violated the National Environmental Policy Act. Federal District Judge Edward Reed initially ruled that the county and city lacked standing to file the suit, but the Ninth Circuit reversed that decision in Churchill County v. Babbitt, 150 F.3d 1972, amended by 158 F.3d 491 (see CP&DR Legal Digest, December 1998). The case then went back to Reed, who ruled that the Fish & Wildlife Service's approach to environmental review complied with NEPA. This time, the Ninth Circuit upheld the lower court. In his opinion, Paez recounted the history of the 100-year-old Newlands Reclamation Project, which diverted water from the Truckee and Carson rivers that had fed Pyramid Lake and tens of thousands of acres of Lahontan Valley wetlands. The federal government's dams and canals supplied the water to farmers. Over the years, the level of Pyramid Lake dropped about 40 feet, about 85% of the wetlands dried up and water quality in the remaining wetlands deteriorated. The Settlement Act was intended to reverse decades of environmental damage. Under its selected alternative for implementing the Settlement Act, the Fish & Wildlife Service was to acquire 55,000 acre feet of water rights from the Carson River, continue with acquisition of another 20,000 acre-feet, lease more water when available, purchase water rights upriver from Lahontan Reservoir, use treated wastewater as available, use water conserved by a U.S. Navy base, and pump groundwater near the wetlands. In all, the plan was intended to provide 125,000 acre-feet of additional water for environmental purposes. Churchill County and the City of Fallon argued that the Fish & Wildlife Service must prepare a programmatic EIS on the "cumulative and synergist impacts" of the Settlement Act's interrelated provisions. Churchill County and Fallon argued that the Fish & Wildlife Service was segmenting parts of the same program — such as the purchase of 55,000 acre-feet of water — so that the cumulative impacts would not be fully addressed. This would be a violation of NEPA. The Ninth Circuit agreed that "it would seem quite reasonable … for the responsible agencies to analyze the actions required under the Settlement Act and their cumulative impacts in one document." But, its failure to prepare such a document did not mean that the Fish & Wildlife Service acted inappropriately, the court held. "Although we can see that the Service's decision was a close call, the record does not support a conclusion that the agency's goal was to minimize the possible cumulative environmental impacts by segmenting the wetlands water rights acquisition program from the analysis of other foreseeable actions," Judge Paez wrote. "We cannot, as Plaintiffs may wish, sanction the use of NEPA's EIS requirements to challenge the policy goals served by the Settlement Act. … We agree with the district court that the Service took a ‘hard look' and that its decision not to proceed with a programmatic EIS was not arbitrary. The county and city also argued that the EIS did not adequately address the cumulative impacts, did not study impacts to groundwater and did not examine a reasonable range of alternatives. Both the county and the city were concerned that the plan would decrease water available for domestic and agricultural uses, especially if the diversions lowered water tables. But the appellate panel upheld the EIS as adequate. The document contained 15 subsections on 15 different parts of the overall water plan and summarized the cumulative impacts of the actions. The document also made clear that agricultural interests would suffer. And, the court ruled, the Fish & Wildlife Service's use of groundwater modeling allowed the agency to make an informed decision. The Case: Churchill County v. Norton, No. 00-15967, 01 C.D.O.S. 10468. Filed December 19, 2001. The Lawyers For Churchill County: Antonio Rossmann, (415) 861-1401. For Norton, Kathryn Kovacs, U.S. Department of Justice Environmental & Natural Resources Divisions, (202) 514-2000.

Planning is nothing more than built politics. In that light, cities are a kind of fossil record of all the arm-twisting, back-scratching and sheer chutzpah that has brought about the creation of cities through time. Give me the map of any major city, and assuming I have adequate knowledge and discernment, I will show you the major landowners, the political donors, the power cliques and the philanthropy that are responsibility for that city's built form. Normally, I have to turn to historians and biographers of people like Robert Moses or William Mulholland to gain a sense of the day-to-day politics that led to the lasting streets and buildings, parks and monuments of a mature city. In present-day San Diego, however, the highly public evolution of the Ballpark District is giving a front-row view of politics — punctuated by lawsuits, collapsing financial arrangements, political scandal and stalled-out construction projects — that may someday translate itself into memorable urban form. The ballpark and the city need each other, according to ROMA Design principal Boris Dramov. "The East Village was looking for the catalyst, the project that would help it reinvent itself," he said. "At the same time, the ballpark was looking for a site where it could become an integral part of the urban fabric, rather than a stand-alone facility" like San Diego's existing Qualcomm Stadium. In short, "you have a project looking for a place and a place looking for a project." The story of the Ballpark District, so far, has been messy and drawn out. The new Padres' baseball stadium began as a popular issue. In 1998, 60% of San Diego voters approved the issuance of $166 million in tax-free bonds to assist the completion of the $400 million ballpark. (Padres' Owner John Moores had begun the project with private capital a few years earlier, and run out of money.) Predictably, people who dissented from the idea of public subsidies for the ballpark sued the city. About 15 lawsuits have gone nowhere in court but they have been partly responsible for delaying the bond sale and, since late 2000, halting stadium construction. Last year, City Councilwoman Valerie Stallings pleaded guilty to two misdemeanor charges in federal court — she failed to report personal gifts from Moores — and resigned from office. If the politics of the Ballpark are messy, the site plan for the district is orderly and straightforward. The goal of the plan, according to ROMA's Dramov, is to create a mixed-use urban district where the ballpark is only one event out of many. Here, the model is clearly cities like Baltimore, Denver and San Francisco, where in-town stadiums have become engines of pedestrian movement and commercial development. The ballpark itself is squeezed into the equivalent of nine city blocks; although enormous, the ballpark is tightly hemmed in by streets, with the goal of making it accessible by foot. Presumably, this means the city must rely on a peripheral parking strategy, which is exactly what makes Denver and other downtown ballparks so successful: Baseball fans walk to the game. ROMA has extended and made regular the existing north-south grid into the former industrial areas of the East Village, which had been interrupted in spots by railroad spurs. The boldest move in the design is the creation of a new diagonal street immediately south of the ballpark, Park Boulevard. This four-lane street is designed to be the major commercial boulevard of the district and opens a view to San Diego Bay. To the east of the ballpark, Park Boulevard makes an elbow connection (a traffic circle) with 12th Street, where a large public library is planned. And 12th Street provides the important connection between downtown San Diego and Balboa Park to the north. Beneath the orderly site plan, however, we get a glimpse of the politics, or at least the mutual back-scratching of the city and the developer. Moores must be an extraordinary negotiator, or the city must be frantic to give the incentives to build the ballpark, or both. In any event, the city has been generous in granting Moores entitlements to build high-density projects, which are arranged around the ballpark like tiny boiled potatoes around a giant slab of sirloin. East Village Square, which occupies the three blocks immediately north of the ballpark, is a 500,000-square-foot retail, entertainment and office development. The Padres are listed as the developer. The remaining projects are listed as JMI, Moores's real estate alter ego. West of the Ballpark, on L Street, JMI plans a 512-room, 32-story hotel, although Westin Hotels dropped out of the deal in October. Also west of the ballpark, on J Street, Moores plans a mid-rise, 203-room all-suites hotel. On Park Boulevard, Campus @ The Park will offer 436,000 square feet of office/high-tech space in three mid-rise buildings. On the residential side is Island Village, a three-block compound off of Park Boulevard containing 455 multi-family units, including flats, townhomes and lofts. The city's deals with Moores may turn out to be unfortunate. The city and the developer are prisoners of each other. Everything — including financing for commercial projects — appears dependent on the completion of the ballpark. The ballpark cannot be completed until the city sells the bonds, and the city seems bogged down by lawsuits, and high interest rates that may make the bonds unattractive to all but the most risk-tolerant investors. Although Moores is a brilliant and versatile businessman who has proven himself in a variety of fields, the city may regret putting so many of its urban-redevelopment eggs into this developer's unsteady basket. Now, just because a project has heavy political overtones does not necessarily cast a shadow on the quality of the site planning. The ROMA scheme for the Ballpark District is a model of economy and clarity, which accomplishes a number of complex goals with a minimum of moves. This is a plan that knows what it wants to do. And, probably, the city will find the financing, or the developers, who can build it. Someday, only history buffs will be able to discern the political ruckus beneath the crystalline order of the Ballpark District.

After 20 years of argument and struggle, numerous revisions and a predictable snarl of litigation, the most expensive wetland restoration project in California history has cleared one of its final hurdles and appears poised to become reality at last. Bolsa Chica, a prime piece of oceanfront property adjacent to the upscale Orange County community of Huntington Beach, was once one of the largest and most significant coastal wetland complexes in the state. The California Coastal Commission's approval of a $100 million restoration plan in November all but assures that this rare piece of undeveloped coastline will remain the province of birds and fish, rather than well-to-do homeowners and boaters. Evidence that Bolsa Chica has long been viewed as prime real estate comes from archaeological sites on the low mesa adjoining the wetlands, where 8,000-year-old human burials have been found. Those early hunter-gatherers may have been enamored of the view, but they were drawn primarily by the abundant food supply. Long a key stop on the Pacific Flyway, Bolsa Chica is an avian refueling depot, the bounty of aquatic life in its plankton-rich waters allowing migratory birds to replenish fat stores depleted by their long flights. The abundant wildlife was a convenient source of sustenance for prehistoric humans. That abundance of waterfowl also drew modern hunter-gatherers, to the lasting detriment of Bolsa Chica's ecological integrity. A mosaic of salt and brackish marsh, tidal basins and mudflats, Bolsa Chica was connected to the Pacific via the Bolsa Chica slough. In 1899, however, members of a local gun club blocked the slough and diked the wetlands to create a system of ponds for waterfowl hunting. Despite this hydrological insult, bird life continued to flock to Bolsa Chica in astounding numbers. "This section of the country along the coast between Long Beach and Newport Beach, south of Westminster, was one of the greatest natural habitats for wild life and game birds in the world," local historian T. B. Talbert wrote in his 1952 autobiography, My Sixty Years in California. "Wild ducks, geese, jack-snipe, coots, plover, doves, killdeer, egrets, herons, gulls, pelicans, land birds and waterfowl of every kind and description varied their flights from the ocean to swamp to grain fields, from grain fields to ocean again, to feast on seafood, grain, seeds, bugs, toads, worms, grasshoppers, and the like. I have seen birds by the thousands so thick in flight as to almost eclipse the sun. The hours-long flight of ducks patterned against a blazing sunset sky was most amazingly spectacular and beautiful" Not long after duck hunters discovered this game-bird paradise, oil was discovered beneath Bolsa Chica. More of the marsh was drained and filled, and a forest of drilling rigs sprouted. The property caught the eye of developers during the 1960s when the oil field began to play out. In 1970, Signal Corp. bought about 2,000 acres of Bolsa Chica's wetlands and drier upland from the gun club. Even in its degraded state, Bolsa Chica remained a magnet for waterfowl; with 90 percent of Southern California's coastal wetlands lost to farms and urban development, each remaining patch became more precious. The Audubon Society's annual winter bird count yields higher numbers and greater diversity of species at Bolsa Chica than at any other site in coastal Southern California, according to Fullerton College ecology professor Allan Schoenherr. Thanks in part to its popularity with birders, efforts to protect Bolsa Chica have been underway nearly as long as efforts to develop it. In 1973, the state purchased 300 acres of the wetlands and established the Bolsa Chica Ecological Preserve. In 1976, local activists formed Amigos de Bolsa Chica to battle development plans. Bolstered by numerous courtroom victories, preservationists, including the Bolsa Chica Land Trust, derailed one proposal after another. The most extravagant project, approved in 1985 by Orange County, would have resulted in 5,700 homes, a marina, shops and an oceanfront hotel (see CP&DR, November 1989). In 1997, the state acquired nearly 900 acres of Bolsa Chica property and began devising a restoration plan. The developer retreated to the adjoining mesa, planning 1,200 homes on 183 acres overlooking the patchwork of drilling pads and degraded marshland below. Even that retreat and the apparent victory of Bolsa Chica's defenders did not end the controversy. Local activists continue to argue that allowing development on the mesa will threaten the ecological integrity of the wetlands below, and call for protection of the entire property. The Coastal Commission handed the landowner a serious setback just over a year ago when it ruled that homes could be built only on a 65-acre portion of the mesa. The developer sued to overturn that decision; that case is still before the court. Despite the legal storm swirling around the mesa, plans to breathe life back into the lowland portion of Bolsa Chica cleared a key hurdle in November with the Coastal Commission's approval of the restoration plan proposed by the U.S. Fish and Wildlife Service. Nothing comparable has ever been tried in California. The heart of the plan is letting the ocean back into Bolsa Chica for the first time in more than a century. A 360-foot-wide channel will be cut through Bolsa Chica State Beach. (Four acres of beach will be lost as a result.) About 2.7 million cubic yards of material will be dredged to create a shallow tidal basin; other acreage will become ponds, sloughs and other types of habitat, including nesting islands for birds. When the project is completed — a process expected to commence in 2003 and take three years — Bolsa Chica will again be a patchwork of pickleweed, mud flats, grassland and open water. The $100 million overall price tag includes the cost of land acquisition (the state paid about $25 million for the wetland acreage). Most of the money — about $79 million — has come from the Ports of Long Beach and Los Angeles, which are paying to restore Bolsa Chica as mitigation for marine habitat lost to port expansion. Not all development opponents are pleased by the restoration plan. Local beachgoers rue the loss of public sand, and worry that the new channel will allow bacteria into local surf. Project planners have studied the possibility and discount it. Minor hurdles still remain. The project requires several more state and federal approvals, including key authorization from the Army Corps of Engineers and the Regional Waster Quality Control Board. Project supporters, however, regarded the notoriously protective Coastal Commission as the last significant hurdle standing in the way of Bolsa Chica's resurrection as a "beloved haven" for wildlife. Contacts: Jack Fancher, project manager, U.S. Fish & Wildlife Service, 760-431-9440. Coastal Commission staff report on restoration project, www.coastal.ca.gov/mtg-11mmi.html Amigos de Bolsa Chica: 714-840-1575, www.amigosdebolsachica.org/

The phenomenon of powerful neighborhood groups holding sway over the planning process makes me question the wisdom of mixing democracy and planning. In principal, democracy should be the preferred route for making decisions about the public realm. But democracy, in large part, is about making deals among competing interests, and not all interest groups — such as people who champion affordable housing, schools, open space and urban design — are sitting at the table when homeowners cut their deals with developers. Most often, neighborhood groups view projects through the lens of their perceived self-interest, and homeowners, especially those who do not have much background in planning, tend to define their interests very narrowly. One exception to this observation, and one that makes the public process look like the best route to good planning, is the University Park residential project in Palo Alto. Covering nine separate parcels just south of downtown, University Park is a new residential neighborhood currently being built next to a mature residential area. In this case, the neighbors were understandably concerned about preserving their neighborhood. What is pleasantly surprising is that they were also concerned about creating affordable housing and increasing housing density in a city that has one of the tightest and most expensive housing markets in California. The University Park area is a nondescript area of older houses, scattered commercial properties and apartment buildings. The area stretches between busy University Boulevard, the main shopping street of downtown Palo Alto, and a neighborhood of Craftsman bungalows known locally as Professorville, in honor of the Stanford University faculty who live there. While hardly blighted, the area might be described as an older, middle-class neighborhood that has been marked by an insensitive mixture of housing and tacky commercial development. The most conspicuous of these was a multi-story medical office building built in the 1950s that was both an eyesore and painfully out of scale with the neighborhood. When Palo Alto Medical Clinic proposed expanding this building, the neighborhood quickly organized to stop the effort. The neighborhood was also worried about an increasing trend of businesses setting up shop in single-family houses as affordable office space, which threatened to bring commercial levels of traffic to neighborhoods while thinning the precious housing stock. In 1999, the city set up a task force known as the South of Forest Study Area (SOFA) that created a list of recommendations for several residential neighborhoods south of downtown Palo Alto, including University Park. Those recommendations included an emphasis on home building over commercial development and limits on the size of homes, perhaps with the intent of discouraging affluent buyers from demolishing older homes and replacing them with "McMansions." (Recall that this was the late '90s, when the dot-com millionaires still stood tall in Silicon Valley.) The Palo Alto Medical Clinic, meanwhile, decided against the construction project in the face of community protest, and put the 8.5-acre property up for sale. This provided Palo Alto a rare opportunity in city making. A local builder, SummerHill Homes, bought the clinic property late last year. For some reason, the seller set an imposing task on the buyer: Put together a development plan and get entitlements in only six months. This requirement placed enormous pressure on both the developer and the city to complete a very large job of planning and design in a comparatively short amount of time. "We took the (SOFA) recommendations as our basic blueprint, and made some modifications to fit our needs," said Ric Denman, SummerHill senior vice president. In accordance with the recommendations, the University Park development agreement is almost entirely residential and codifies a stringent formula to keep houses small. (Technically, it is a floor-to-area ratio , limiting the amount of square footage that a developer is allowed to build on a lot of certain size. Here, the FAR limits floor space within a house to one-half the size of the lot.) The modifications included changing the site of a proposed park, and relocating five historic houses in University Park onto a single block; in conformance with neighborhood wishes, the developers also agreed to preserve and restore an historic African-American church and a commercial storefront known as the French Laundry on Channing Street. More impressively, the neighborhood demonstrated its sincerity for creating a new housing resource for the city. Activists supported several types of affordable housing, including what the developer calls "studio flats," which are "granny flats" that sit atop garages. Some neighborhood activists pushed to restrict the use of the studio flats to rental use only, guaranteeing that the units would be a housing resource to the larger community. Although that effort fell short, all the granny flats have separately metered utilities and off-street parking spaces so that all can be used as legal rental units. The same activists, not without opposition, further pushed for increases in the existing density of about seven to eight units per acre to about 10 units per acre in the single-family lots and about 25 units in the multi-family sites. The up-zoning caused one home owner to complain, in all innocence, of the coming "Manhattanization" of Palo Alto. In the final version of the plan currently being built, which was approved by the Palo Alto City Council earlier this year, SummerHill is building 72 condominiums, 22 single family houses, 19 of which have rental "studio flats," together with the historic properties mentioned above. On a separate block, the city's Housing Corporation is carrying out another part of master plan by building 53 affordable rental units. On an urban design level, the project promises to replace the tattered urban texture of University Park with a coherent residential neighborhood. Of course, Palo Alto residents were not that different in many ways from other neighborhood groups with property value concerns. But, possibly because they are part of a socially conscious university crowd, these residents were willing to buck Palo Alto's strident opposition to growth in general — and multi-family homes in particular — to increase the housing stock in a desirable area. That willingness makes the University Park process the most hopeful sign I have seen yet that democracy in planning can go beyond nay saying and NIMBYism and actually arrive at an enlightened solution for an entire community. Just don't try it in my neighborhood!

An assessment levied by Sacramento County on nonprofit organizations that conduct bingo games did not violate a 1994 initiative barring the imposition of a tax or fee on a nonprofit group's income, the Third District Court of Appeal has ruled. However, the appellate panel sent the case back to the trial court to determine whether the fees were closely related enough to county expenses to be legal. This is not the first time that bingo operators and Sacramento County have been to court. Last year, the Third District ruled in Arden Carmichael, Inc. v. County of Sacramento, (2000) 79 Cal.App. 4th 1070, that the county's 1% tax levied on bingo operators' gross receipts from June 1994 through December 1996 was illegal under Proposition 176. Voters approved that initiative, which amended article XIII, § 26 of the state constitution, in June 1994. Apparently recognizing problems with its assessment, the county changed its procedures in January 1997 so that the fee was based on a percentage of a bingo operator's prize payouts. The fee ranged from 1.15% to 1.225% of prize payouts depending on the three-month timeframe. The bingo operators sued, claiming that the new fee structure was still linked to gross receipts. They also argued that the fee violated Penal Code § 326.5, which permits fees for law enforcement and public safety activities that are directly related to bingo activities. Sacramento County Superior Court Judge John Lewis ruled for the county. In the published portion of its opinion, the Third District upheld Lewis's ruling on the fee's constitutionality vis-a-vis Proposition 174. But in the unpublished part of the decision, the court said Lewis should not have granted summary adjudication on the issue of whether the fees were adequately tied to the county's actual cost of providing service. In their appeal, the bingo operators argued that by taxing prize payouts, the county was indirectly doing what it could not — namely, taxing nonprofit organizations' gross receipts. The bingo operators pointed out that the county's revised formula collected almost exactly the same amount of revenue as the outlawed gross receipts tax. However, the court rejected this argument as beside the point. The issue, the court ruled, was the precise language used in Proposition 174 and by the county. The court held that Sacramento County's assessment was a tax on bingo operators' expenses, not on receipts. Such a tax is legal under Proposition 174, according to the court, which cited ABC Distributing Co. v. City and County of San Francisco, (1975) 15 Ca.3d 566. " he state Supreme Court distinguished a tax measured by an expense incurred by plaintiffs from one measured by their income," Justice Daniel Kolkey wrote for the Third District. "In response to plaintiffs' suggestion that a payroll expense tax was, in essence, an income tax because it was paid from plaintiffs' income — a suggestion similar to that of plaintiffs in this case — the state high court observed that ‘all taxes necessarily involve some reduction of and relationship to available revenues.'" The court also considered voters' intent by examining the Proposition 174 ballot arguments. The court held that the exemption from a gross receipts tax created by Proposition 174 "was intended to protect contributions and other categories of revenue from direct taxation." Sacramento County was taxing expenses, which would have a similar effect on nonprofit organizations' funding by encouraging them to reduce expenses, the court reasoned. In the unpublished part of its opinion, the court said that Sacramento County must prove its fees are tied to expenses. The county defended its practice of averaging costs and including numerous "indirect expenses." The court did not rule on Sacramento County's defense but made clear it was skeptical, saying that the county's estimated revenues and costs were an improper basis for fees. "The statutory standard is not whether the estimated revenues do not unreasonably exceed the estimated cost, but whether the actual revenue derived from the fee does not ‘exceed the actual cost incurred in providing the service,'" Kolkey wrote, citing the Penal Code. The Case: Arden Carmichael, Inc. v. County of Sacramento, No. C031367, 01 C.D.O.S. 9400, 2001 DJDAR 11693. Filed October 31, 2001. The Lawyers: For Arden Carmichael: H.L. Koelewyn, Hoseit & Koelewyn, (916) 922-8823. For the county: Elaine DiPietro, deputy county

One year ago, the water district that serves portions of Alameda and Contra Costa counties reached a tentative agreement with other local and federal agencies on a plan to divert water from the Sacramento River. Supporters of the plan said it would benefit many different parties. However, the memorandum of understanding among East Bay Municipal Utility District, Sacramento County, the City of Sacramento and the federal Bureau of Reclamation has many detractors. The MOU not only demonstrates how difficult it is to divide up California's water, it also eliminates any chance for unity among water providers. Two associations representing many of the state's major water purveyors, in addition to the Metropolitan Water District of Southern California, the Westlands Water District in the Central Valley, and the East Bay MUD neighbor Contra Costa Water District, have sued to halt the planned diversion. "We've got enough problems solving the fisheries issues and everything that we should not be squabbling within the water supply family," said John Coburn, general manager of the State Water Contractors, an association of 27 agencies that is part of the lawsuit. Environmentalists appear divided on the plan. Supporters of the American River — which East Bay MUD fought to tap for 30 years — have endorsed the plan. But advocates of a healthier San Francisco Bay and delta have raised questions about the water diversion's impact on water quality in the delta. How exactly East Bay MUD's plan fits into the larger Cal-Fed Bay Delta project is uncertain. East Bay MUD, which provides water to 1.3 million people, currently relies on reservoirs on the Mokelumne River in the Sierra Nevada foothills. But for 30 years, East Bay MUD officials have recognized that the Mokelumne has too many demands on it, so the district needs to augment its supply, said Charles Hardy, district spokesman. That is why the district fought for and won rights to American River water in 1970. However, when East Bay MUD attempted to exercise those rights by extracting American River water from Nimbus Dam or elsewhere in Sacramento County, the district met stiff opposition from local officials and environmentalists. They said East Bay MUD's proposed diversions would leave the river with an inadequate flow. Decades of political fighting and litigation ensured, and the two sides appeared at a stalemate until U.S. Sen. Dianne Feinstein brought everyone together in 2000. She helped broker a deal that appeared to satisfy most participants. The plan calls for East Bay MUD to take up to 133,000 acre feet of water — enough to serve at least 200,000 homes — from the Sacramento River near the community of Freeport, roughly 10 miles downstream from the point where the American feeds into the Sacramento. East Bay MUD would pump the water from the diversion point to its main pipelines that flow from the Mokelumne River. East Bay MUD said it would take water from the Sacramento River only during times of shortage, and not use the water to expand its service area. The plan calls for East Bay MUD to pay $400 million toward the project costs. Sacramento County, which could receive some of the water, would contribute $140 million to $200 million. The project could be completed as soon as 2005. "This is a giant step forward," Feinstein said in December 2000. "It is an example of two regions that have fought for 30 years over water finally saying we are going to work together. If we do it right, it's going to set an example for the rest of the state." But East Bay MUD's 133,000 acre feet would likely come at the expense of other Central Valley Project contractors. When those agencies failed to get assurances that they would not lose in a zero-sum game, they fought back. In July of this year, they filed a lawsuit, based primarily on the California Environmental Quality Act and the National Environmental Policy Act, that claimed East Bay MUD and the Bureau of Reclamation did not complete adequate environmental studies. However, Ron Stork, a longtime leader of Friends of the River, which fought East Bay MUD proposals for the American River, said that these water agencies have little on their side. He noted that the lawsuit attacks the process — which can be remedied — but not the merits of East Bay MUD's plan. "They don't have a legal case to suggest that EBMUD diverting water — and them diverting somewhat less — is against the law," Stork said. "It's not against the law. That's the way the Central Valley Project is structured." East Bay MUD spokesman Hardy said the district plans to complete an environmental impact report after it finalizes its agreement with the Bureau of Reclamation and Sacramento County. Thus far, the district has only compared alternative diversion sites, he said. District officials emphasize the "drought proofing" aspects of the project. They say the district would tap the Sacramento River only an average of once every three years, and even then the district would not necessarily take its entire allotment. "For us, this is crucial," Hardy said. "We're coming out of a dry year. Our reservoirs are down 100,000 acre feet. If we have another dry year, we'll be in a drought. We'll have to cut back residential customers by 65%." Stork, for one, believes East Bay MUD's promises. Water from the Sacramento River must be pumped uphill for miles to reach the district's pipelines, and pumping is too expensive for that water to be used as a luxury, he said. "Basically, our hope is that this is a reliability project that is underused so that the diversions that affect Delta flows are not very big," Stork said. But other environmentalists are not so sure. They fear East Bay MUD's diversions could raise salinity levels in the already-troubled delta — especially if the district pumps large quantities of water during a drought, when fresh-water flows to the delta are already low. This is a fear shared by other water agencies and their customers. Rising delta salinity could reduce the amount of water available for pumping south, they say. These East Bay MUD opponents call the project "piecemeal" and say it should properly be considered inside the Cal-Fed framework. This is not the first time East Bay MUD has acted as a maverick. Two decades ago, it was one of the few water districts not lined up in support of the Peripheral Canal. More recently, East Bay MUD headed the effort to forge a closer tie between land use planning and water availability, which led to this year's passage of a three-bill water package (see CP&DR November 2001, October 2001). Contacts: John Coburn, State Water Contractors, (916) 447-7357 Charles Hardy, East Bay Municipal Utility District, (510) 287-0141. Ron Stork, Friends of the River, (916) 442-3155