The California High-Speed Rail Authority finds itself living something of a double life these days. Created by the Legislature in 1996 to develop a plan for building, operating and financing an intercity, high-speed rail system, the authority has received great interest since the September 11 terrorist attacks. A month earlier, former Santa Clara Supervisor Rod Diridon, one of the state's loudest voices for rail transit, took over as head of the authority's board. Gov. Gray Davis appointed Diridon to the board in June. At the same time that momentum appears to be building, the authority is going broke. This fiscal year, it requested a budget of $14 million. It received only $1 million � not even enough to keep the agency's doors open for a full 12 months. The authority has grabbed a few million dollars from Caltrans and from earlier bond funds. But with the state facing a fiscal year 2002-03 deficit estimated at $12 billion, there is little reason to see a brighter budget future for the rail agency, which already has a December 2003 sunset date. Prior to the September 11 terrorist attacks, high-speed rail was something of a pipe dream for train buffs. The authority estimated that constructing a 700-mile-long system linking San Diego, Los Angeles, San Francisco and Sacramento would cost $25 billion � more than the cost of every serious California airport expansion project combined. But when the nation's airports closed for three days in mid-September, people learned how few travel options existed. "We're hamstrung when one element of our system breaks down," Diridon said. More than two months after the attack, the number of air passengers remains approximately 10% to 20% below pre-September 11 levels. Analysts are unsure if this drop is an aberration or a permanent shift in travel patterns. Geoffrey Gosling, a research engineer at the University of California, Berkeley, Institute of Transportation Studies, said data that become available this month and next should tell experts a great deal. Holiday air travel is not something that can be postponed to a more convenient time. So if those numbers are down, the decreased demand on what had been an overburdened air system could be considered permanent, he said. There is no doubt that interest in high-speed rail travel blossomed on September 12. The nation's lone high-speed line � Amtrak's Acera service between Boston and Washington D.C. � immediately attracted twice as many passengers as before. In Congress, Rep. Don Young (R-Alaska), the chairman of the House Transportation Committee, introduced a $71 billion national high-speed rail bill. "There has been a very noticeable increase in interest, not just from the media, but from the general public," said Dan Leavitt, deputy director of the California High-Speed Rail Authority. Since its creation five years ago, the authority has settled on approximate corridors for a train that could travel 200 mph. The train would run on dedicated rail lines through the Central Valley, while it would probably share existing, upgraded rails in urban areas, Leavitt said. Significant portions of the system could be complete in 10 years, with the entire system in place by 2020, Leavitt projected. The agency has accumulated a huge amount of data and is in the midst of preparing environmental impact reports for portions of the 700-mile-long route, Leavitt said. But the authority needs about $20 million more to complete the necessary planning and first tier environmental work. State Sen. Jim Costa (D-Fresno), who authored the bill creating the authority, has pushed to add funding. Diridon said he has received numerous inquiries from state and federal lawmakers who want to provide more money. "It's like the cavalry coming over the hill," Diridon said. "They are asking us why we are moving so slowly." So far, the authority has not picked up more funding. But Diridon, director of the Mineta Transportation Institute at San Jose State University, said he intends to use every trick he knows to get money flowing to the authority. Diridon, Leavitt, Costa and other believers say high-speed rail is vital for California. Because of population growth and limitations on increased automobile and air capacity, California is facing a future transportation crisis, Leavitt said. "We have the world's finest freeway system, and we have the world's finest air transport system. But with the exception of Northeast Corridor, we have not invested in intercity rail," Leavitt said. Every other western country has, or is building, a high-speed rail system. "I think we're catching up with the rest of the world," Diridon said. While train diehards are sure of high-speed rail's benefits, others are not sold. Marlon Boarnet, a professor at UC Irvine's Department of Urban and Regional Planning, concedes that he is not convinced. "Before September 11, I was quite skeptical about high-speed rail," Boarnet said. "Could it compete with high-frequency air shuttle service? I think one of the questions out there now is whether the economics of air travel have been permanently changed." A 1998 study by David Levinson, then with UC Berkeley's transportation institute and now a professor at University of Minnesota, found that the cost of air travel between San Francisco and Los Angeles is about half the cost of automobile or high-speed rail travel. The study accounted for infrastructure, fuel and vehicle costs, as well as social costs such as accidents, noise and air pollution. " he most cost effective high-speed rail configuration in California would be as an alternative to highway, rather than air, transportation," Levinson wrote. "Any new high-speed rail line should complement rather than compete with air transportation. Perhaps design alternatives that favor shorter distance markets (such as Los Angeles-San Diego or San Francisco-Sacramento) would be more advantageous." While those 100-mile trips would certainly be part of the system, high-speed rail backers emphasize the desire to provide 2 1/2-hour service between Los Angeles and San Francisco, and between Los Angeles and Sacramento. They argue that a 2 1/2-hour trip from downtown to downtown makes high-speed rail very competitive in the marketplace with air travel. But Boarnet, of UCI, wonders how many of the people traveling from the Bay Area to metropolitan Los Angeles really need to get from downtown San Francisco to Union Station in Los Angeles. Most people's trip would not be over, he said. Not surprisingly, supporters and skeptics also differ on whether a high-speed rail system could operate without a subsidy. Despite its lack of money and a staff that can be counted on one hand, the High-Speed Rail Authority continues to plug along. During its November meeting, the board settled on alignments and station locations for further investigation in four corridors: Bay Area to Merced, Bakersfield to Los Angeles, Los Angeles to San Diego via Riverside, and Los Angeles to San Diego via Orange County. The board could decide on preferred alignments and station locations for the Sacramento-to-Bakersfield line as soon as January. Importantly, the board in November also settled on a system where trains traverse steel tracks. The board dismissed a proposal for magnetic levitation trains, which have gone more than 300 mph in tests overseas but have not been put to wide use yet. Contacts: Dan Leavitt, California High-Speed Rail Authority, (916) 324-1541. Rod Diridon, High-Speed Rail Authority, and Mineta Transportation Institute, (408) 924-7560. Geoffrey Gosling, UC Berkeley Institute of Transportation Studies, (510) 642-9064. Marlon Boarnet, UC Irvine Department of Urban and Regional Planning, (949) 824-7695. High-Speed Rail Authority website: www.cahighspeedrail.ca.gov

The Ninth U.S. Circuit Court of Appeals has upheld the validity of a City of Lodi ordinance intended to force the cleanup of contaminated land and groundwater. Although it struck down a few provisions of Lodi's comprehensive law, the court ruled against insurance companies that contended federal and state "Superfund" laws prevented Lodi from imposing its own cleanup regulations. The unanimous three-judge panel held that the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or the Superfund law) envisioned states approving and implementing complementary regulations. And in California, the court ruled, municipal ordinances such as Lodi's are equivalent to state laws. " e hold that CERCLA permits both states and their political subdivisions to enact hazardous waste regulations and pursue additional remedies at their own expense, " Judge Harry Pregerson wrote, as long as the remedies do not conflict with CERCLA. The battle between Lodi and three insurance companies — Fireman's Fund, Unigard Insurance, and Unigard Security Insurance — has been around since the mid-1990s and has already made its way to the state Supreme Court. Earlier this year, the state's high court upheld a provision in Lodi's ordinance allowing the City Council to issue legislative subpoenas as part of the city's investigation and cleanup process. Connecticut Indemnity Co. v. Superior Court, 98 Cal. Rptr. 2d 221 (2001). Now comes the federal court ruling that further supports a city's ability to take charge of contaminated sites within its boundaries. In 1989, Lodi first detected tetrachloroethylene — a dry cleaning agent and carcinogen often known as PCE — in the groundwater that supplies the town. A few years later, the state Department of Toxic Substances Control (DTSC) identified four small dry cleaning businesses as "potentially responsible parties" and listed the "Lodi Groundwater Site" as a state hazardous waste site. In 1997, the city signed an agreement with DTSC that called for the city and state to work cooperatively on investigating and remediating the PCE. The agreement designated Lodi as the lead enforcement agency. As required by the agreement, the city went on to adopt the Comprehensive Municipal Environmental Response and Liability Ordinance (MERLO), which allows the city to investigate and remediate contamination in the soil and groundwater. Lodi then began procedures against the dry cleaners and their insurance companies. The insurers quickly sued the city, claiming that CERLCA and the state's Carpenter-Presley-Tanner Hazardous Substances Account Act (HSAA) preempted the city's ordinance. A federal district court ruled against the insurers in two separate lawsuits, which were combined on appeal. The Ninth Circuit addressed the three types of preemption, which are similar for both federal and state: express preemption, field preemption, and conflict preemption. The court found that neither CERCLA nor HSAA expressly preempted local law. The court rejected the insurance companies' argument that CERCLA and HSAA together occupied the field of hazardous waste. Noting that CERCLA creates "a floor, not a ceiling," Pregerson wrote that CERCLA anticipates that states will enact supplemental environmental legislation. And the agreement between Lodi and DTSC proves that the state sanctioned Lodi's efforts. "Moreover, in California, municipal ordinances are state law and may be prosecuted in the name of the ‘people of the state of California,'" Pregerson wrote. The court's examination of how Lodi's ordinance could conflict with the federal and state laws was extensive. Essentially, the court held that there were only three conflicts: The Lodi ordinance improperly expanded the city's ability to sue insurers beyond what is permitted by state insurance law; the city ordinance improperly limited any liability the city itself might have (insurers have argued that the city itself is a potential responsible party because of its sewer system operations); and the city ordinance's burden of proof was superceded by HSAA. The court held those sections of Lodi's ordinance were "easily severable" and upheld the remainder of the ordinance. The Cases: Fireman's Fund Insurance Company v. City of Lodi, No. 99-15614, and Unigard Insurance Company v. City of Lodi, No. 99-15802, 01 C.D.O.S. 9308, 2001 DJDAR 11651. Filed October 30, 2001. The Lawyers: For Fireman's Fund: Terry Houlihan, McCutcheon, Doyle, Brown & Enerson, (415) 393-2000. For Unigard: Dennis Zaragoza, (415) 217-4757. For the city: Michael C. Donovan, assistant city attorney, (650) 372-5100.

In anticipation of another raid on local government revenues by the State of California, local government officials have taken a page from grass-roots planning advocates and filed for two versions of initiatives for the state's November 2002 ballot. The "Local Revenue Accountability Act" is spearheaded by the state's leading city, county, and special district advocacy organizations – whose members are the largest employers of urban planners in California. The strategy is a crapshoot for the future of publicly-funded planning. The initiative campaign might unintentionally push the public to focus further on the most essential services. And the campaign might further damage the already poor fiscal relationship between state and local government. The move is prompted by fear of a redoubling of the property tax shift implemented by the Wilson administration beginning in 1992. Those changes — the result of a recession that brought to bear the full wrath of Proposition 13 funding shortfalls — resulted in permanent shifts of $4 billion annually from local governments to school districts, resulting in a net gain in the state's own general fund by alleviating its school funding responsibilities. The state dubbed the action "ERAF," or the educational revenue augmentation fund. The name seized on public support for education spending. The victims were local government programs, including land use planning. The state's current budget problems are as dire as they were 10 years ago. According to the Legislative Analyst's Office, the state's budgeted expenditures for 2001-02 will exceed anticipated revenues by $4.5 billion, and the potential shortfall for 2002-03 is $12.4 billion. Therefore, a new raid on local property taxes, vehicle license fees and even sales taxes is likely. While local governments are mad as hell and not willing to take it anymore, things have changed in 10 years time. Among the important changes is the institutionalization of concern for public schools. For example, since ERAF, voters have approved a constitutional amendment making it easier for school bonds to pass. It is clear that education has moved near the top of everyone's "what I want the government to do with our money" list. Facing such sentiment, local government plans to pitch arguments for another service that is seen as essential: public safety. Of any local government-provided service, it is likely that police and fire protection — especially in the wake of the September 11 — could best compete with education in a ballot fight between competing government needs. The other trend that has solidified is the use of ballot-box planning itself. Ironically, a majority of public sector planners, the American Planning Association, and some academics have shunned ballot-box planning as a miscarriage of the process, seeing planning as a legitimate public interest best controlled by professionals and elected officials. Nevertheless, in many California jurisdictions, the ballot box has become a focal point for important planning decisions — a fact not lost on the local government associations. In crafting the ballot measures, cities and counties are acknowledging that if you can't beat ‘em, join ‘em. And the enlistment of public service unions will be an important part of the political strategy. Public planners have much at stake. Depending on the jurisdiction, the ERAF tax shifts resulted in serious revenue losses for planning departments. Then, as now, planning departments were not the highest priorities for most municipal finance directors and local government decision-makers. At the state level, the entire housing element update cycle was suspended and the push for regionalism evaporated. At the local level, it is unclear how many internal planning efforts were "defunded" by municipal money managers. But, clearly, planning staffs were furloughed across the state, with some jurisdictions eliminating one-third or more of their planners (see CP&DR, August 1992). Santa Maria City Manager Tim Ness said ERAF remains a burden for his central coast city. "In 1990, we adopted a budget with 351 employees. In 2000, we adopted a budget with the exact same number of employees – 351 – even though our population had grown from 61,000 to 80,000," he said. During the early 1990s, The city reduced expenses by requiring employees to take unpaid leave and by reopening contracts with unions. Because the ERAF diversions have never been restored, "the current annual shift represents a $1.1 million dollar hole in our revenue stream," Ness said. Ness sees any potential new raid focusing on Vehicle License Fees, or VLF. That concerns the city manager because — at $3.8 million — the fees represent Santa Maria's second largest source of revenue. During 1999 and 2000, the first two years of the 35% VLF cut enjoyed by vehicle owners, revenues lost to local governments were "backfilled" from the state's budget surplus. But now that black has turned to red in Sacramento, the state will probably discontinue the backfill. And the state may even decide to take another 30% of the VLF from locals because constitutionally, only one-third of the levy must be remitted to local government. In such a scenario, Santa Maria would be hit with a $2.5 million dollar loss, a blow Ness described as "unsustainable." Ness acknowledged that even if the VLF — or ERAF II — issues are resolved, "the fiscal relationship between state and local government is seriously broken." Ultimately, local governments' ballot-box tactics will likely result in some dialog between the state and its local governments. But the ultimate fate of local planning department funding remains a lingering question. The public may no longer expect to have its cake and eat it too. Ironically, in carrying fiscal issues to the voters, local governments may inadvertently end up making the case for the service seen as most essential: public safety. And that may leave other functions — like planning — more vulnerable than ever. Stephen Svete, AICP, is president of Rincon Consultants, Inc., a Ventura-based consulting firm.

The City of Industry has purchased a 2,400-acre Boy Scout camp in the hills outside of town. The acquisition and Industry's plans for the property have spurred a major fight between Industry and a collection of environmentalists and officials from neighboring jurisdictions. Industry Mayor David Perez said the Boy Scout camp will provide an open space buffer and floodplain below a reservoir the city intends to build on adjacent land, which the city purchased during the 1970s. But opponents of the project say Industry intends to build a reservoir complex on the Boy Scout camp — a site long desired by environmentalists for its habitat values. Perez said he thinks his city can work out a compromise that satisfies everyone. But at this point, the sides seem miles apart. Industry is not a typical city. Incorporated in 1957 as a municipality whose sole focus was serving private enterprise, Industry today is home to 3,200 businesses with approximately 80,000 employees. But only about 700 people reside inside the city limits. So a handful of major business interests — including Majestic Realty, one of Southern California's biggest commercial developers — closely hold the power in Industry. In 1978, Industry purchased the Tres Hermanos Ranch several miles east of town in San Bernardino County with the intent of developing a 165,000-acre-foot reservoir. For a variety of reasons, that project never went beyond the planning stage, although Industry leaders did not forget about it. The city needs an inexpensive, reliable water supply to continue thriving, Perez said. During the 1980s, the Los Angeles Area Council of the Boy Scouts of America began attempting to sell all or most of the 3,300-acre Firestone Scout Reservation, which the tire company had donated decades earlier. The Scouts had difficulty maintaining the camp and needed the money. But no sale was ever completed. In 1994, the cities of Brea, Diamond Bar, La Habra Heights and Whittier joined with the state parks department, the Department of Fish & Game, the Santa Monica Mountains Conservation Authority and Los Angeles County to form the Wildlife Corridor Conservation Authority (WCCA). The authority is intended to plan for the preservation of a stretch of undeveloped land that stretches from Whittier (in Los Angeles County) through the far southwestern corner of San Bernardino County to the Cleveland National Forest in Orange and Riverside counties. The authority also can purchase property. "This 31-mile corridor is one of the last long, connected habitat corridors in urban Southern California," explained Bob Henderson, a Whittier city councilman and member of the WCCA board. Shortly after WCCA's formation, its leaders began negotiating with Boy Scout officials regarding the Firestone Scout camp. The camp is in Tonner Canyon, which is classified as a "significant ecological area." The canyon contains riparian, valley grassland, coastal sage scrub and walnut woodland ecosystems, all of which are rare in the greater Los Angeles area. The Scout camp also lies in the migratory route of a number of species, including mule deer, coyote, bobcat and mountain lion. The acquisition process appeared to gain momentum with the passage of a 1996 Los Angeles County park bond measure, which provided $10 million for the purchase. Eventually, WCCA offered the Scouts as much as $14 million, but no deal was ever reached, according to Henderson. In 1999, the Wildlands Conservancy, a well-funded private organization, sought the Scout camp as a possible location for the conservancy's outdoor education programs. However, neither a joint WCCA-Wildlands Conservancy deal with the Scouts, nor a deal strictly between the conservancy and the scouts was ever signed. Henderson said that the two entities eventually offered $18 million for the property. In December 2000, the Scouts accepted $16.5 million from the City of Industry. Why the Scouts appeared to favor the city is unclear. Scout representatives did not return requests for comment. Henderson and others pointed out that a vice president of Majestic Realty is a member of the Scout board. The Wildlands Conservancy, WCCA, the Sierra Club, the Center for Biological Diversity and a collection of individuals have filed two suits against Industry and the Scouts over the purchase. The first suit challenges Industry's use of its redevelopment agency to purchase the property because the site is largely undeveloped and is not within a redevelopment project area — or even within the city limits. After initial court hearings on that suit, Industry altered its deal with the Scouts so that the city itself — not the redevelopment agency — purchased the land. A second suit challenges the acquisition on other grounds. Industry declared the acquisition categorically exempt from the California Environmental Quality Act, saying the city has no development intentions. But attorney Murray Kane, who represents the Tonner Canyon Wilderness Conservancy and individuals in the case, said Industry is trying to have it both ways. If the city purchased the property and intends to leave it untouched, then there was no municipal purpose for the acquisition. Kane and others say Industry has plans for a reservoir on the Scout property. The land acquisition is an early stage of the project, so it is subject to environmental review, he argued. Kane also said that Industry did not make general plan consistency findings, nor did Los Angeles and San Bernardino counties, where the land is located. Plus, he contended, the redevelopment issue is not dead because Industry intends to use redevelopment money for roads on the site. Brea Councilwoman Bev Perry, also complained about Industry's attempt to use its redevelopment agency to acquire the property. The Industry Urban Development Agency's attempt to purchase undeveloped, non-blighted property outside of the city limits gives a bad name to all redevelopment agencies, she said. Perry, who serves as chair of WCCA, noted that the dams would be within one mile of a major earthquake fault — and her city lies below the potential reservoirs. She said undeveloped land such as Tonner Canyon is rare in Southern California and it is an essential link in the wildlife corridor. "It's a very beautiful canyon that the Boy Scouts have had forever," Perry said. "We really want to see this land preserved, and a reservoir isn't going to do it." Henderson, who has served 20 years in two stints on the Whittier City Council, agreed. Under Industry plans that litigants have gained access to, Industry would construct a complex of three dams, he said. One reservoir and part of another lake would lie on the Boy Scout camp. "Every single bit of Tonner Canyon would be destroyed," Henderson said. Some opponents of the Industry project also believe that if the city does not build the reservoirs, it could approved thousands of houses on the hillsides — an charge that Industry officials reject. Industry Mayor Perez declined to discuss details of the lawsuits. He countered that opponents "are upset because we bought what they wanted." "We're not against their wildlife corridor," Perez added. "When the Boy Scouts property became available for sale, we decided to get it for open space and a flood plain." That allows Industry to build a larger, 250,000-acre-foot reservoir on its Tres Hermanos land, he explained. The reservoir will not fill Tonner Canyon from ridgeline to ridgeline, nor will it conflict with the wildlife corridor, he said. Moreover, a reservoir it could provide needed recreation for the Scouts and the general public, he added. Industry's agreement with the Scouts prevents the city from developing the site, Perez added. However, such restrictions do not exist on the Tres Hermanos land. The two sides are due to appear in court this month. Contacts: David Perez, City of Industry mayor, (626) 333-2211. Bob Henderson, Wildlife Corridor Conservation Authority, Whittier city councilman, (562) 945-8200. Bev Perry, WCCA, Brea city councilwoman, (714) 990-2258 Murray Kane, Kane, Ballmer & Berkman, (213) 617-048

Local governments that float Marks-Roos bonds have a fiduciary responsibility to the investors who hold the bonds – but not to the property owners who provide the revenue to make the bond payments, the Third District Court of Appeal has ruled. The issue was raised by prominent Sacramento-area developer Marvin L. "Buzz" Oates. He claimed that the City of Lincoln's decision to refinance eight bond issues under the Marks-Roos bond pooling law constituted an unconstitutional taking of his property. He claimed that the refinancing raised his assessments and increased the length of time he must pay. But the Third District ruled against him. Oates purchased property in 1989 in Lincoln's Nicolaus Road Assessment District, which had floated $5.8 million in bonds in 1986 to provide infrastructure to the area. At the time the bonds were issued, $580,000 – 10% of the proceeds – was placed in a reserve fund for the benefit of bondholders. Establishing this reserve fund is a customary practice in public finance. Upon his purchase, Oates began paying assessments that helped to retire the bonds, which were due to come to maturity this year. However, in 1994 the city combined eight different outstanding bond issues, including Nicolaus Road, into one comprehensive refinancing under the Marks-Roos bond pooling act. The city found that the Nicolaus Road reserve fund still contained $551,000, which was used to reduce the outstanding principle. After refinancing, the interest rate dropped. In conducting the refinancing, the city made three findings required by Streets & Highways Code § 9525: (1) that the estimated annual amount of repayment would be less; (2) that the number of years to maturity would remain unchanged; and (3) that the principal amount owed by each subdivision of land in the district was less after the refinancing. Oates sued, claiming constructive fraud and an unconstitutional taking and calling for an accounting of the reserve fund – apparently because he believed the reserve fund had not been used to pay down the principal before the refinancing. Placer County Superior Court Judge Frances Kearney ruled in favor of the city, concluding that evidence existed that the reserve fund had paid down the principal. Oates's appeal turned on the question of whether the city had a fiduciary responsibility to him as a property owner who pays assessments that are used to pay back the bonds. Oates's main piece of evidence came from expert witness Robert W. Doty, who concluded that "the local government holds the reserve fund not only for the benefit of bondowners (in the event private property owners fail to pay assessments) but also as the foundation for the credit to or reduction in assessments on the private parcels (in the event that private property owners do make payment of their assessments) … Thus, the local government holds the reserve fund if it is not needed to pay bondowners, specifically for the benefit of property owners." The city responded that the possibility of refund or credit to property owners such as Oates is contingent on Oates paying the entire assessment and never defaulting. The Third District agreed. "Unless and until the bondholders were satisfied, property owners possessed no interest in the reserve fund, only a possible future interest dependent on future events," wrote Justice Vance Raye. "Until satisfaction of this obligation to the bondholders, no interest resides in the property owners." Raye also rejected Oates's argument that interpreting the law in this way opens the city to self-dealing and manipulation. The court also rejected Oates's argument that the reserve fund was improperly used in the refinancing. "Oates's dissatisfaction with the costs of the refinance does not translate into noncompliance," Raye wrote. Finally, the court rejected Oates's argument that the refinancing amounted to constructive fraud against him because the city did not have a fiduciary responsibility to him. "Again, this argument overlooks the contingent quality of any interest that the property owners possess," Raye wrote. The Case: Oates v. City of Lincoln, No. C035975, 01 C.D.O.S. 9155. Issued October 24, 2001. The Lawyers: For Marvin L. Oates: Edward R. Brenner, (916) 925-3113. For City of Lincoln: G. Richard Brown, McDonough, Holland & Allen, (916) 444-3900

The Proposition 62 requirement that a tax measure receive two-thirds approval by a City Council before going to voters does not apply to charter law cities, the First District Court of Appeal has ruled. Proposition 62, the "Right to Vote on Taxes Act" that state voters approved in 1986, cannot override a charter city's "core constitutional authority over the conduct of its local elections," the court ruled. The decision is the latest in a growing string of appellate court decisions regarding Proposition 62, which proponents said would close loopholes in Proposition 13 (see CP&DR Legal Digest, July 2001, October 1999, December 1995). In March 1998, the City Council in San Leandro, a city in Alameda County just south of Oakland, voted 4-3 to place on the ballot a 3% "business license fee" based on a business's gross receipts from the sale of concealable firearms and ammunition. Three months later, the majority of San Leandro voters approved the levy, known as Measure H. In July 1998, Traders Sports and several other gun dealers sued the city, alleging that the city violated Proposition 62, which requires a two-thirds vote by the legislative body for a tax measure to appear on the local ballot. The gun dealers also made a number of other arguments. Alameda County Superior Court Judge James Richman ruled for the city. On appeal, the gun dealers limited their arguments to three areas: Measure H violated Proposition 62; the levy is actually an impermissible fee that is not related to the provision of any city service; the levy violated equal protection rights. In the longer, published portion of its opinion, the First District addressed only the Proposition 62 questions. At issue was Government Code § 53724, subdivision (b). The city argued that the state constitution's home rule doctrine gives charter cities the right to adopt ordinances that conflict with general state law as long as the subject of the local ordinance is a "municipal affair" and not of "statewide concern." The city charter and municipal code say that a majority vote of the city council is sufficient to place a measure on the ballot. The gun dealers argued that when approving Proposition 62, voters were acting in an area of statewide concern. They further noted that Proposition 62, as codified in Government Code § 53720, specifically says that it applies to chartered cities and counties. The unanimous three-judge appellate panel sided squarely with the city. The state constitution "directly grants to charter cities the power and authority to legislate in four ‘core areas' that are by definition ‘municipal affairs,'" Judge Ignazio Ruvolo wrote, citing Johnson v. Bradley, (1992) 4 Cal.4th 389. The conduct of city elections is one of those four core areas. Thus, "a statute purporting to define the number of votes required for putting a local tax measure on the ballot contravenes this explicit constitutional grant of authority to charter cities, such as San Leandro, over the conduct of its municipal elections," Ruvolo wrote. The court said that Proposition 62's specific inclusion of charter cities could not stand. " Supreme Court has made it abundantly clear that even if a statute purports to apply to all municipalities throughout the state, including charter cities, it is not necessarily a general law if it does not relate to a matter of statewide concern," Ruvolo wrote, again citing Johnson. Ruvolo pointed to two other cases where courts have upheld real estate transfer taxes imposed by charter cities, even though Proposition 62 explicitly prohibited such taxes. Fielder v. City of Los Angeles, (1993) 14 Cal.App. 4th 137; Fisher v. County of Alameda, (1993) 20 Cal.App. 4th 120. The judge further noted the official analysis of Proposition 62 in the voters' handbook said that the initiative could not apply to charter cities. Moreover, the court ruled, the main goal of Proposition 62 was met: voters decided on a proposed tax increase. In the unpublished portion of the ruling, the court held that Measure H was indeed a business tax, not a fee. The levy is based on gross receipts and a business must pay it to obtain a required business license. The revenue is not earmarked for any particular fund or service. Measure H is "purely a revenue-raising measure (a tax), and not a regulatory measure (a fee)," Ruvolo wrote. The city attorney's referring to the levy as a "fee" in his ballot analysis was not enough to overturn the measure. Also in the unpublished part of the ruling, the court rejected equal protection arguments. The court held that the city treated all members of the class — gun dealers — equally. And the city could legitimately place those gun dealers in a class because of their relationship to the costs associated with the proliferation of firearms in the community, the court ruled. The Case: Traders Sports, Inc. v. City of San Leandro, No. A092448, 01 C.D.O.S. 9143, 2001 DJDAR 11409. Filed October 24, 2001. The Lawyers: For Traders Sports: James Leonard Crew, (925) 831-0834. For the city: Andrea Saltzman, Meyers, Nave, Riback, Silver & Wilson, (510) 351-4300.

The final offer that Caltrans made to a landowner whose property was the subject of an eminent domain action was unreasonable and, therefore, the landowner is due litigation expenses from the state, the Fourth District Court of Appeal has ruled. The court ruled that Caltrans's offer was unreasonable because it was based on an illegal nonconforming use of the site. The decision comes in a case involving the widening of Interstate 5 in Buena Park, a city in northern Orange County. In 1990, Caltrans filed an eminent domain action against the Woodson family, which owned a two-acre mobile home park. Caltrans needed the property to accommodate the freeway project. Shortly before the case went to trial, the Woodsons demanded $1,695,000. Caltrans's final offer was $1,400,000. Just before the trial, Caltrans sought a continuance and the trial was postponed for 3 1/2 months. The Woodsons then demanded an additional $100,000 to cover the cost of preparing for trial twice. Eventually, a jury awarded the Woodsons $1,876,750. The Woodsons then sought litigation expenses, but the trial court judge denied the request. At both the trial court level and on appeal, the case turned on the definition of "reasonable." The trial court found Caltrans's final offer to be reasonable and, therefore, denied the Woodson's request; the appellate court did not. Under Code of Civil Procedure § 1250.410, the court can award litigation expenses to the landowner if the court finds that the government agency in an eminent domain action makes an unreasonable final offer and the property owner made a reasonable demand. The Fourth District first considered mathematical factors. The Caltrans offer was only 74% of the jury award, which was $476,750 greater than the state's offer. Based on precedent, those figures placed the case in a gray area of reasonableness, the court found. However, the state Supreme Court in Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp., (1997) 16 Ca.4th 694 (see CP&DR Legal Digest, September 1997), cautioned lower courts against using mathematical factors as the sole basis for determining reasonableness. The courts are also to consider "good faith, care and accuracy factors." "Those are the factors on which Caltrans hangs its hat," Justice Eileen Moore wrote for the unanimous three-judge panel. "But Caltrans does not fare well on the care and accuracy front." In setting a value of $1,188,000, the Caltrans appraiser found that the highest and best use of the property was its existing use as a mobile home park. The Woodsons' appraiser determined the property to be worth $1,876,750 based on using the property for a self-storage facility. "The problem with Caltrans's appraisal," Moore wrote, "is that the mobile home park was a nonconforming use that was specifically required by ordinance to be terminated." The mobile home park had been developed during the 1950s. In 1972, the city zoned the site as Light Industrial and required the mobile home park to close by 1992. The Caltrans appraiser conceded she knew the mobile home park was nonconforming, but she thought it was a legal nonconforming use and that the city would not shut it down anyway. She also noted that about half of the comparable sales she used as a basis for valuing the site were of nonconforming mobile home parks in Orange County. "But these arguments miss the point," Moore wrote. "Very simply put, there is a Buena Park Zoning Ordinance requiring the nonconforming use to be terminated. This zoning ordinance cannot be ignored." Because Caltrans's final offer was based on a nonconforming use that was legally required to be terminated, the "final offer was unreasonable under the good faith, care and accuracy analysis," the court held. Therefore, Caltrans is responsible for the landowner's legal expenses. The Case: The People ex rel. Department of Transportation v. Bertrand H. Woodson, No. G024913, 01 C.D.O.S. 9704. Filed November 14, 2001. The Lawyers: For Caltrans: William McMillan, Caltrans, (916) 654-4583. For Woodson: K. Erik Friess, Nossaman, Guthner, Knox & Elliott, (949) 833-7800.

California is an expansive state, but most people live and work in a series of spaces that are – proportionally – rather small. It may seem like it takes forever to traverse metropolitan Los Angeles or the San Francisco Bay Area, but these population centers make up only a tiny portion of the state's overall land area. Meanwhile, the open lands in the state are quickly being scooped up for permanent protection. The federal government already owns half the land in the state, and state agencies and land trusts are picking up a good portion of the rest. Large pieces of real estate are available in the Central Valley and the Inland Empire, but most of them are far from job centers. Which brings us to brownfields – those contaminated sites, mostly in already urbanized areas, that represent great opportunities to use urban land more efficiently if only they can get cleaned up. California has tens of thousands of brownfield sites. Most are small, but some are large parcels – usually with an industrial past – that represent great opportunities to alter the state's urban form. California has never taken brownfields seriously enough as an issue – unlike a compact urban state like New Jersey, which is quickly moving to lock up most remaining undeveloped land and making it easy to develop on brownfields. But now the issue is beginning to get some traction in Sacramento. It remains to be seen whether the traction continues next year – an election year that is likely to feature a down economy – and whether the Legislature is interested in change sweeping enough to make a difference. This year's passage of SB 32 — which takes some baby steps towards encouraging brownfields development — represents a good example of how the coming debate is likely to shake out. On the one hand, it shows that there's a broadening of support for certain types of brownfields legislation, especially in connection with the environmental justice crowd, which has traditionally been wary of facilitating brownfields development. On the other hand, it suggests that brownfields policy, like most other land use policy in California, will be a work in process for a long time, driven mostly by the incremental steps the that Legislature is willing to take in any given year. Brownfields policy is a delicate three-part balance between the government, the landowner, and the community. Government agencies want contaminated urban land cleaned up, often to very high standards, and usually with private landowner dollars. Property owners want to realize profit from their real estate, and they do not want to be saddled with cleanup costs. Older urban communities want environmental problems eradicated, but they don't want to feel "dumped on." The result of this triangle is often bureaucratic, litigious gridlock, in which one or two of the three players holds the power to stop or slow down brownfields cleanup so much that under-utilized urban land simply cannot compete with "greenfield" sites. Piled on top of that is the "place-blind" orientation of California land use policy, especially the California Environmental Quality Act. Traditionally, planning in California is based on what Professor John Landis of University of California, Berkeley, calls "the suburban growth model." Under this model, the whole assumption underlying the planning process is that communities are converting raw land into urbanized neighborhoods. That is one of the reasons why CEQA has always been, by and large, "place-blind." Generally speaking, it does not matter whether your project is in a century-old industrial district or in the middle of nowhere – the requirements are pretty much the same. And as pressure to redevelop urban sites has grown, environmental justice groups have latched on to CEQA as one of the few levers they have to ensure that poor urban neighborhoods do not get railroaded. That is why attempts to reform CEQA to favor development of brownfields and infill sites – like other brownfields bills – have often failed. Beyond that is the fact that toxic contamination, unlike most land use issues, falls under the purview of a state agency, in this case the Department of Toxic Substances Control (DTSC). Not surprisingly, DTSC is concerned with paying for and cleaning up contamination, rather than altering the urban form of the state. So the agency has had little motivation to facilitate brownfields development. Senate Bill 32, carried by Sen. Martha Escutia (D-Huntington Park), is not sweeping. The legislation takes three tiny steps toward making brownfields redevelopment easier. The most important aspect of the bill for land use is that it gives local governments the ability, in certain circumstances, to order landowners to investigate toxic contamination problems on under-utilized parcels of five acres or less. Far more important than what SB 32 does is who supported it and the fact that it passed at all. The bill won the backing of a wide variety of urban environmental justice groups – the first time such a broad coalition has been put together to support a brownfields bill. We will have to wait and see how far the brownfields coalition can go next year. The state's already limited brownfields program took a hit in November, when Gov. Davis axed $44 million of the $52 million originally allocated for DTSC's CLEAN Brownfields Loan Program because of the state budget deficit. Major CEQA reform still does not appear to be in the cards. The staunchest defender of CEQA – Sen. Byron Sher (D-Palo Alto) – remains at the helm of the Senate Committee on Environmental Quality. And even some minor CEQA changes to facilitate infill development in downtown Oakland required all of Mayor Jerry Brown's juice to get passed this year. And the big cahuna in brownfields is much tougher than CEQA. It's the question of liability. Currently, California law creates open-ended liability for all present and past landowners on the question of toxic cleanup – a boon to DTSC regulators who want to find deep pockets, but not exactly an incentive for enlightened developers to enter the gauntlet of redeveloping brownfields. To make the brownfields effort really sing in California, a sweeping deal will have to be brokered on liability. The deal will probably need to involve reining in the trial lawyers, throwing additional state money into the pot, and encouraging the locals to redirect redevelopment funds and other precious revenue to a task they would rather let somebody else pay for. That is a tough assignment in any climate. A sour economy with a budget deficit will make it even harder. And California is not given to sweeping political change on anything these days. Term-limited legislators move forward an inch at a time – and the electricity deregulation debacle has made them more cautious than ever. At this rate, it will take a decade or more to whip our state's brownfields policy into shape.

The results: Contra Costa County City of Brentwood Voters approved a $6 million general obligation bond for a new police station. Measure J: Yes, 73.9% (2/3 required). Los Angeles County City of Azusa A $5.875 million general obligation bond to fund a new library won approval. Measure L: Yes, 76.2% (2/3 required). City of Hawthorne A City Council-sponsored advisory measure on a proposal to replace the general aviation Hawthorne Airport with a large shopping center and hotel was voted down. Measure A: No, 70.8%. City of Hermosa Beach A complicated initiative that, among other things, would expedite preparation of a Local Coastal Program, prevent building permanent structures on the beach, and conserve existing parking spaces was soundly rejected. Measure F: No, 73.9% City of Malibu A $15 million bond that would have provided money mostly for land acquisitions did not receive enough support to pass. Measure K, No, 38.7% (2/3 required). City of Manhattan Beach A $15 million bond to pay for new police and fire department headquarters failed to get enough votes. Measure Y: No, 39.4% (2/3 required). City of Monterey Park Voters ratified City Council-approved amendments to the city general plan's land use element, rezoning properties to accommodate retail and mixed-use development, while also preserving 150 acres of parkland and open space. Measure O: Yes, 64.9%. Riverside County City of Palm Springs Voters approved an initiative that calls for spending the money the city will save by refinancing bonds for the convention center to build a new downtown parking garage. Measure D: Yes, 59%. San Bernardino County City of Chino Modifications to the city's mobile home rent control ordinance won approval. Measure F: Yes, 61.9%. San Francisco City and County A measure that requires voters to approve any project that involves filling at least 100 acres of the bay — namely, the proposed San Francisco International Airport runway realignment project. The San Francisco Board of Supervisors placed the measure on the ballot. Proposition D: Yes, 74.6%. Voters also decided four measures addressing electricity. They barely rejected a measure that would have turned the city's Public Utilities Commission into a water and power agency, with the authority to condemn PG&E transmission lines. By a larger margin, voters rejected a measure to create a new municipal utility district that also would include the City of Brisbane. They approved a $100 million revenue bond to construct solar and wind power systems to serve city buildings. And they gave the Board of Supervisors authority to issue revenue bonds to fund renewable energy projects without voter approval. Proposition B (solar and wind power bonds): Yes, 73.4%. Proposition F (create water and power agency): No, 50.4%. Proposition H (authority to issue bonds for renewable energy): Yes, 55.2%. Proposition I (create new municipal utility district): No, 52.1%. Stanislaus County City of Modesto Measures to extend sewer trunk lines to currently unincorporated areas won voter approval. The elections were required under a previous initiative that requires voter approval for extension of sewer service. Measure N: Yes, 54%. Measure O: Yes, 54%. San Mateo County Coastside County Water District An initiative that would require voter approval for the expansion of the water system that serves Half Moon Bay and unincorporated coastal communities narrowly failed. Measure U: No, 51.6%. City of Menlo Park A $38 million bond to fund park and recreation facilities, and acquire land, won approval. Measure T: Yes, 69.2% (2/3 required). Montara Sanitary District Voters approved a $19 million bond that provides money for the district to purchase a water system now operated by Delaware-based Citizens Utilities. Backers of the measure say a publicly run system would have access to other public water resources, and would provide better service. Measure V: Yes, 80.6% Santa Barbara County Goleta In the fourth vote on incorporation in 14 years, residents of Goleta approved creation of a new city. Measure H: Yes, 57.7%. Santa Clara County City of Cupertino Annexation of the Garden Gate community was approved, despite some residents' fears that the city would allow greater development than the county would. Measure D: Yes, 54.8% Ventura County City of Ventura The electorate backed a measure that requires future voters to decide on the extension of water and sewer services to 9,100 acres of hillside areas bordering the town. The City Council placed the measure before voters after landowners presented plans for developing portions of the hillsides. Measure P: Yes, 77.3%.

Citizens cannot force the Environmental Protection Agency to take enforcement action against polluters under the Clean Water Act, the Ninth U.S. Circuit Court of Appeals has ruled. " he Clean Water Act leaves it to the discretion of the EPA Administrator whether to find violations and to take enforcement action, and … those discretionary decisions are not subject to judicial review," Judge William Canby wrote for the three-judge panel. The case involved the Nogales International Water Treatment Plant in Pio Rico, Arizona, about 10 miles north of the Mexican border. The City of Nogales, Arizona, and the U.S. Section of the Boundary Commission jointly operate the plant, which serves about 185,000 people on either side of the border. From January 1995 though January 2000, plant operators reported 128 violations of the facility's National Pollution Discharge Elimination System permit. The Sierra Club sued the EPA, the Boundary Commission and the City of Nogales. The Sierra Club reached an out of court settlement with the Commission and the city to upgrade the facilities, but the group pressed forward with its suit against the EPA. The group asked the court to order the EPA to take enforcement action against the sewer plant operators. Federal District Court Judge Raner Collins ruled for the EPA, holding that citizens cannot sue the agency to force it to take enforcement action. The Sierra Club appealed, pointing to the Clean Water Act's use of the word "shall" in regard to enforcement activities. But the Ninth Circuit upheld the lower court ruling. In this instance, "shall" simply authorizes the EPA to act. The word does not compel action, as Congress did not intend for enforcement provisions to be mandatory, the court ruled. "The language of authorization, for both the commencement of a civil action and the issuance of a compliance order, shows congressional intent to give the Administrator these options, not to require their use in all instances," Canby wrote. The Eighth Circuit reached a similar conclusion in Dubois v. Thomas, 820 F.2d, 943 (8th Cir. 1987), Canby noted. " he purpose of the Clean Water Act is to restore and maintain national waters and waterways," Canby wrote. "As previously recognized by the Eighth Circuit, requiring the EPA to ‘expend its limited resources investigating multitudinous complaints, irrespective of the magnitude of their environmental significance' could lead to an inability to investigate and enforce those violations the Administrator believes to be the most serious." In a concurring opinion, Judge Ronald Gould said the court should not have even reached the issue of whether enforcement was discretionary. Although he called the EPA's inaction "troubling" in this case, Gould wrote, "No prior finding of violation was alleged here by the Sierra Club in its complaint, and the record does not disclose such a finding." Thus, there was no basis for an enforcement action, he wrote. The Case: Sierra Club v. Whitman, No. 00-16895, 01 C.D.O.S. 8576, 2001 DJDAR 10637. Filed October 2, 2001. The Lawyers: For the Sierra Club: Vera Kornylak, Arizona Center for Law in the Public Interest, (520) 529-1798. For Whitman: Ellen Durkee, Department of Justice Environment & Natural Resources Division, (202) 514-2000.

State housing programs took a major hit in November when Gov. Gray Davis cut $2 billion from the state's current fiscal year budget. The governor eliminated the Jobs-Housing Balance program and shifted the program's $60 million balance, which was leftover from the 2000-01 budget, to the state general fund. The program was intended to spur approval of housing development in areas with rapid job growth by providing grants to local governments (see CP&DR, November 2001). The governor also cut half of the $89 million multi-family housing loan program. And Davis eliminated the Downtown Rebound Program, which provided money to plan infill development and conversion of industrial and commercial buildings to residential use. Davis also shifted the Downtown Rebound Program's $4.1 million to the general fund. In a letter to state officials, Davis said "the extraordinarily rapid decline in state revenues" requires the spending cuts. The Legislature is scheduled to consider the budget revisions during a special session in January. The proposed restoration of the Bolsa Chica wetlands in Huntington Beach advanced in November when the Coastal Commission approved a plan by the U.S. Fish & Wildlife Service to carve a 360-foot-wide inlet through Bolsa Chica State Beach to re-create a tidal basin. Hunters cut off the marsh from the ocean a century ago to create better hunting grounds. Since then, Bolsa Chica's marsh and mud flats have become unhealthy and polluted. Wildlife experts say the restored 1,200-acre site, which includes oil wells, would support a wide variety of species, including the endangered western snowy plover and the least tern. The project appeared stymied when Caltrans said that it would need to build a six-lane bridge over the new inlet. Coastal Commission planners refused to support such a large bridge. But only days before the Commission's November meeting, Caltrans said it could live with a four-lane bridge. Approximately $100 million of restoration work jointly funded by the federal and state governments is scheduled to begin in 2003. Also in November, the state Historic Resources Commission voted to designate 18 acres of Bolsa Chica mesa, which lies above the wetlands, as an historic site because of the American Indian village and burial ground found there. Hearthside Homes, which plans to build 387 houses on the mesa, said it would not agree to the listing, which must be decided by the National Register of Historic Places. Californians appear at least somewhat troubled by growth and development, according to a poll released in November by the Public Policy Institute of California and the William and Flora Hewlett Foundation. Asked if they would vote for a local initiative to slow the pace of development, even if it mean less economic growth, 55% of respondents said yes. Support for slowing development was highest in the Bay Area (60%) and lowest in the Central Valley (48%). Traffic congestion and affordable housing availability were the two largest land use concerns identified by respondents, with Bay Area residents seeing the biggest problems. However, 10% fewer people identified traffic congestion and affordable housing as concerns in this poll than in a similar survey released in May. About two-thirds of people conceded they had not heard of the terms "sprawl" or "smart growth." The vast majority (84%) said they want to live in a detached, single-family dwelling, although 32% said they would live in multi-story, multi-family housing if it meant they could walk to shops, schools and transit. The survey is available on the PPIC website, www.ppic.org A Los Angeles County planner who issued hundreds of potentially invalid certificates of compliance is being investigated by the District Attorney's office, the Los Angeles Times reported in November. Emmet Taylor, whom the county fired last year, is suspected of accepting bribes to approve the certificates of compliance, which legitimize parcels that were created decades earlier with few or no standards. Earlier this year the county began reviewing about 1,300 certificates of compliance issued since 1995 and found that many were invalid. Much of the land involved lies in northern Los Angeles County. Taylor has denied wrongdoing and continues to fight his dismissal. Three Los Angeles business groups issued a report in late October calling for the City of Los Angeles to overhaul its development policies so that 60,000 housing units get built during the next five years. That was the fare share housing allocation the Southern California Association of Governments assigned to Los Angeles. The position paper from the Building Industry Association, the Central City Association and the Valley Industry and Commerce Association rejects affordable housing programs such as inclusionary zoning for affordable units, in-lieu fees paid by housing developers, and linkage fees paid by commercial builders. Instead, the groups call for "real time" subsidies, fee deferrals, a "by-right" approval process and creation of "housing opportunity zones." The paper suggests that the city's housing policies have caused developers to avoid high-density projects, and that overcrowded conditions have caused the middle-class to move elsewhere. The California Energy Commission has decided to let power plants developed on an expedited basis run for up to 30 years under relaxed emission standards. The commission will allow power plants that are approved by this month and running by September 2002 to operate on simple-cycle turbines, rather than more efficient — but more expensive — combined cycle turbines. When the Energy Commission began fast-track approval of power plants a year ago, it allowed some new plants to install simple-cycle turbines under the condition that they be replaced within two years (see CP&DR, July 2001). Environmentalists and state officials disagree about how many plants could operate long-term under the relaxed standards. Litigation appears likely. A Fresno County coalition of governments, farmers, builders and businesses has issued a report called "Livable Neighborhood Development" that endorses many New Urbanist concepts. Three years ago, the Growth Alternatives Alliance produced "A Landscape of Choice," a report that urged compact development of existing communities and preservation of farmland. The follow-up report goes one step further by outlining preferred styles of development. The report calls for "walkable neighborhoods," zoning flexibility, mixed-use districts and commercial villages. Fresno County and all of its cities eventually endorsed the Landscape of Choice report, and initial reaction to Livable Neighborhood Development was favorable. The Cal-Fed Bay Delta project will receive $30 million in federal funding this fiscal year. The House of Representatives, which initially refused to fund the program at all, and the Senate agreed on the amount in November but tightly controlled how the money gets spent. The appropriation emphasizes water storage over environmental restoration. Specifically included is money to study enlarging Shasta Dam near Redding and Los Vaqueros Reservoir in Contra Costa County. Studying the proposed Sites Reservoir in the hills of Glenn County also is included. Environmentalists complained that the allocation ignores important restoration work. The federal government did not fund Cal-Fed at all in 2001. The City of Oceanside, in northern San Diego County, has eliminated in-lieu fees for affordable housing. Instead, the city will require housing developers to dedicate 10% of units within a project for low-income people. If the developer provides the affordable units off-site, then a number equal to 15% of the project must be offered for low-income residents. The city has collected about $3 million of in-lieu fees over the years but has never built any homes. Councilmembers said the city itself should not be responsible for building dwellings. Santa Clara County's Valley Transportation Authority has agreed to provide up to $48 million annually to operate a proposed extension of BART to San Jose. The decision, which the BART board endorsed in mid-November, removes a major hurdle to extending BART from its current terminus in Fremont to downtown San Jose and the airport. Operating funds could eventually come from a variety of places, such as higher sales taxes, higher gas taxes or increased ticket fares. But as none of those revenues are guaranteed, the BART board wanted assurances someone would fund operation of the extension. The VTA pledged a portion of quarter-cent sales tax revenues it now receives for transit, although it might never have to spend the money. Operation of the BART extension to Santa Clara County is still about 10 years away.

Development supporters fared better than slow-growth advocates during November's off-year election with few land use ballot measures. The pro-growth side won seven of the ten measures on local ballots that had obvious growth implications. The results contrast with recent off-year fall elections. In November 1999, slow-growth forces won 10 of 18 ballot measures. In November 1997, the slow-growth side won 9 of 12 elections. In other election results, residents in Goleta � a suburb of Santa Barbara � finally voted to incorporate into a new city after three failed attempts. Bond measures for new public facilities fared well, with parks, police stations, and other facilities getting the nod from voters. The slow-growth victories this November may have been few, but they all came in closely watched races � and mostly in familiar locales for ballot measures, including Ventura and San Francisco. When the slow-growth side won, it won big, scoring at least 70% of the vote in its three victories. One important trend that continued was the number of measures that either called for � or responded to � requirements for a public vote on specific issues. A vote requirement passed in Ventura and San Francisco, failed in a San Mateo County special district, and was used to facilitate growth in Modesto and Monterey Park. Slow-growth victories Voters in the City of Ventura overwhelmingly backed Measure P, which requires future voters to approve the extension of utilities into the hills that border the town. Approval of the measure bolsters Ventura's reputation as a town where the electorate closely controls growth, as the city first adopted an initiative in 1995 that requires voters to approve the rezoning of farmland. The San Francisco electorate overwhelmingly passed Proposition D, requiring city voters to approve any city project that involves filling at least 100 acres of the bay � namely, the expansion of San Francisco International Airport, which is not in the city but in San Mateo County. Although Mayor Willie Brown initially denounced Proposition D, he eventually endorsed it and there was no organized opposition. The measure clearly throws another tall hurdle in front of Brown and others who support the airport project, which calls for filling about 900 acres of the bay for new runways. Environmental groups opposed to the airport expansion, including Save the Bay and the Sierra Club, cheered Proposition D's passage. Voters in the southern Los Angeles County city of Hawthorne decisively said no to Measure A, an advisory measure that called for replacing the city's 80-acre general aviation airport with a large shopping center and hotel. The airport question also spilled over the Hawthorne mayor and City Council races. Voters re-elected Mayor Larry Guidi, who opposed the project, and two council candidates, Pablo Catano and Gary Parsons, who also opposed the development. Voters ousted 18-year Councilman Steve Andersen, a proponent of developing the airport site. Pro-growth wins Growth control advocates in Malibu failed to win two-thirds of the vote needed for a $15 million bond measure. Only 61% of voters backed Measure K. Under the proposal, 85% of the money would have been spent on land acquisition, with the remaining 15% going for park development. Voters in the Los Angeles County town of Hermosa Beach said no to a complicated initiative intended to curb large events at the beach. Measure F also called for expediting preparation of a Local Coastal Program, prohibited permanent structures on the beach and required protection of parking spaces in the coastal zone. In Monterey Park, a city adjacent to east Los Angeles, voters ratified changes to the general plan's land use element. The amendments open up more property for mixed-use development while also protecting additional land for parks and open space. Measure D appeared on the ballot as required by a 1980's initiative. City officials hope to pursue four to six new redevelopment projects under the revised land use element, Mayor Francisco Alonso said. "We're under pressure from residents to provide decent shopping in the city. We're under pressure to provide more housing. But we're a built-out city," Alonso said. In San Mateo County's Coastside County Water District, voters narrowly rejected Measure U, which would have required subsequent voter approval for expansion of the water system. The campaign focused on using the water system to limit growth in the City of Half Moon Bay and the unincorporated communities of El Granada, Miramar and Princeton � all of which the water district serves. The Half Moon Bay electorate has previously voted to limit growth, approving a 3% growth cap in 1991 and a 1% growth ceiling in 1999. Half Moon Bay voters did elect a slate of three growth-control City Council candidates, which could result in stricter interpretation of the 1% growth cap (see CP&DR Local Watch, September 2001). Water district voters, however, elected two "managed growth" candidates and only one slow-growth advocate. Growth advocates in Modesto won two measures to extend the city's sewer system to accommodate future development. One approved measure calls for extending a sewer trunk link to serve 480 acres of unincorporated territory on the northeast side of town, where about 2,400 homes could be developed. A similar measure extends the sewer to smaller unincorporated communities on the west side of town. Modesto has had a requirement to place sewer trunk extensions on the ballot since the 1970s. In Palm Springs, voters backed a 388-space downtown parking garage by supporting Measure D. The initiative calls for using the savings from refinanced bonds (which originally funded the convention center) to pay for a new parking structure. Mixed bag elsewhere Bond measures for public facilities fared well during November elections. Voters approved bonds for a new police station in the eastern Contra Costa County city of Brentwood; for park facilities in the Bay Area town of Menlo Park; and for a library in the San Gabriel Valley city of Azusa. Also, voters in the Montara Sanitary District in coastal San Mateo County backed a bond that will finance the purchase of a water system now owned by a private company. Voters in Southern California's Manhattan Beach, however, failed to provide two-thirds support for Measure Y, which would have funded new police and fire department facilities. Voters in Goleta, just west of Santa Barbara, created the state's 477th city by approving incorporation. Three incorporation votes since 1987 had failed. This time, incorporation supporters narrowed the size of the proposed city, excluding neighborhoods that have long associated with the City of Santa Barbara, as well as the University of California, Santa Barbara, campus and the community of Isla Vista, where many students live. Although the Goleta area has about 80,000 residents, the new city will have a population of about 29,000. Taking control of rapid growth was one of the major themes of the election. Electricity was the central topic in San Francisco, where voters rejected two measures intended to create a municipal power utility. Pacific Gas & Electric, which is headquartered in San Francisco, spent about $1.5 million to defeat Propositions F and I. Also in San Francisco, voters approved alternative power measures that could establish the nation's largest photovoltaic system. In two City Council elections that hinged on development policies, slow-growth advocates won in the East Bay city of Livermore, while pro-growth incumbents retained their seats in the Riverside County city of Temecula. In Livermore, Mayor Cathie Brown and City Councilman John Stein were ousted. Brown and Stein were both backers of the North Livermore Specific Plan, which called for northward expansion of the city to add 12,500 housing units (see CP&DR Local Watch, June 2000). In their place, voters picked Marshall Kamena to be mayor and Mark Beeman for the council. Both are slow-growth advocates. Slow-growth Councilman Tom Reitter retained his seat. "The day is over when city staff will spend 80% of their time on projects outside the city limits," Kamena told the Contra Costa Times. In Temecula, Mayor Jeff Comerchero and Councilmen Ron Roberts and Jeff Stone were the three top vote-getters in a six-candidate race. Comerchero, Roberts and Stone have formed a 3-2 pro-growth majority on the City Council since 1999, when voters elected two slow-growth candidates (see CP&DR Local Watch, February 2001). Critics of development had hoped to take the council majority this year, but they failed.