Just in time for the recession, California's voters are going to take a crack at another parks and open space bond in March. Given the state of the economy and other uncertainties, it was kind of surprising that the Legislature passed – and Gov. Gray Davis signed – the $2.6 billion "Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Act." And even the governor seemed a little dubious about it, stating in his signing letter that it was up to the voters to pass the bond but he could not be responsible for the economic consequences if they do. Even so, this latest open space bond will provide a good test of voter commitment to open space – and, if it passes, a good test of open space as a growth management tool in California. Over the last decade, we've seen a curious phenomenon. The public's appetite to use the government to control and direct growth has not abated. Ballot measures to curb growth were up sharply last year, and urban growth boundaries in particular have been popular for the last five or six years. Yet property rights lawsuits have continued to mount, making it more difficult for local and state agencies to use strict regulation to direct urban growth. So in California and elsewhere, we have seen the use of open space acquisition programs used more overtly as a tool to manage and direct growth. This trend has been fueled by the strong economy — which always creates increased support for open space acquisition – and by the increasing alignment of open space advocates with the "smart growth" movement. The smart growth crowd argues for compact development on infill sites and on selected greenfield locations that seem like logical extensions of current growth patterns. Whether they are intended to or not, all open space acquisitions direct urban growth. Sometimes this occurs on a "micro" level – as when a local land trust buys a treasured meadow. Sometimes it occurs as part of a strategic plan to create parkland and open space. For example, the large land acquisitions in the Santa Monica Mountains by both the state and federal governments during the last 20 years has clearly diverted high-end single-family development out of the mountains to other locations around Los Angeles. Similarly, the vast open space acquisitions in the coastal sections of the Bay Area – especially Marin, San Mateo, and Santa Clara counties – have profoundly affected the urban growth patterns in that area. "Stopping development" is often part of the emotional impulse behind these open space movements, especially in highly localized situations. And protecting precious open space resources is usually part of the policy rationale for more large-scale acquisitions, as in the Santa Monicas and on the Peninsula. However, the idea of open space acquisition as an overt growth management tool – especially one shaping large-scale land-use patterns – is a relatively new idea in California. The recent history dates back about a decade, to the time when the endangered species crises in Southern California forced local, state and federal agencies to begin working together to set aside large preserves in order to comply with the Endangered Species Act. This was the first time since the 1970s that the state and federal resource agencies had sat down with local governments to hammer out overt plans designating where urban growth would be directed in a large area. But it was not done in the context of a growth management plan. It was done in the context of environmental policy, namely the Endangered Species Act. And this planning did not rest on the assumption that the open space in question would be protected via land-use regulation – which was the assumption for many other large-scale land-use planning exercises in California during the 1970s. Rather, this effort rested on the assumption that the open space land would be purchased by state and federal agencies – or, in some cases, deeded over to them by private landowners as part of a deal to permit development. The species plans – commonly known as Habitat Conservation Plans under federal law and Natural Communities Conservation Plans under state law – were not different from previous parks and open space plans in the sense that they created a framework for open space protection into which future open space acquisitions can fit. But they are different for two reasons. First, the land involved is land that biologists concluded was important – but that, except for species, would not be on anybody else's list to protect. And second, it was different in the sense that everybody involved – including the urban growth-driven local governments sitting at the table – understood that they were really creating the template for future urban growth. In San Diego and Riverside counties in particular, we saw a lot of horse-trading and squabbling among the local governments over which cities would have to accept parts of the species preserve. In any event, the end result of the species planning exercises is that, at least in those geographical areas, the state government has a much stronger framework for land acquisition. An overall plan for where to grow is already in place. The species planning framework and its open space acquisition program is essentially an implementation of that plan. Local open space acquisition programs, however, do not always fit the same planning model. With local governments and local land trusts, there exists much more political pressure to buy a smaller or less strategically significant piece of land. Indeed, there is often a great deal of pressure to buy certain pieces of land precisely because they are located in or near existing developments and therefore serve as development targets. In such situations, the open space acquisition often serves to direct urban growth – but not in a planned or logical way. If the open space bond on the March ballot passes, this issue of strategic local acquisitions will become more important. The bond contains few earmarked projects in it and would distribute hundreds of millions of dollars to local governments with few strings attached. The opportunity to buy land of local political importance, but of little larger value, will be great. So it is important to praise those local efforts that have consciously combined good growth management and open space acquisition. They will be the models we must follow in California. Perhaps the best one is the open space acquisition program in Sonoma County, where a strategic plan has been adopted to determine how to spend the ample funding produced by a quarter-cent sales tax for open space acquisition that voters adopted several years ago. The plan highlights priorities for both land acquisition and conservation easements, and in so doing, it essentially serves to implement the county's existing land use priorities, including maintaining the "community separators" between existing cities. If more open space money becomes available – especially funding with local discretion – other communities would do well to follow the NCCP and Sonoma County models. These are examples in which open space acquisition becomes a powerful tool to implement thoughtful land-use planning, rather than an ad-hoc and reactive response to development pressure that neighbors dislike.

With its key location on the edge of the Bay Area and plenty of inexpensive land, Tracy would appear to be in position to attract some technology-based economic growth. And the city has inched into the tech arena, but it remains primarily a bedroom community. Tracy need look only 30 miles over the Altamont Pass to Pleasanton and Dublin, two cities in the tri-valley area of Alameda County, to see the prosperity that high-tech businesses can bring. Closer to San Francisco and San Jose, Pleasanton and Dublin attracted office parks and some heavyweight tech companies in recent years, and the boom continued until the recent economic downturn. Tech industries may have temporarily slowed, but Tracy officials are continuing their quest for office-based, high-tech jobs to keep residents closer to home. Even though tech has not taken off in San Joaquin County, where Tracy is located, the area has become a prime bedroom community for Silicon Valley workers willing to endure long commutes in order to own a home. About one-third of the motorists driving over Altamont Pass toward the Bay Area each day are Tracy commuters, according to Mayor Don Bilbrey. The commute from Tracy to San Jose is about 70 miles, and because of congestion it can take up to two hours each way. The ACE commuter train provides an alternative but the one-way trip still takes nearly two hours. The city is attempting to balance the number of housing units with more commercial and industrial development to provide jobs closer to home. And even if the region is entering a recession, Bilbrey noted that Tracy still has assets to offer companies seeking to cut costs. Tracy's economic development in recent years has focussed on its location — close to the Bay Area and near Interstate 5 — and many jobs that located in Tracy are centered around warehouses and distribution. But with continued affordable housing development has come new retail and commercial businesses also. In recent years, the city has added about 3,500 new residents each year, according to Economic Development Director Andrew Malik. The city currently has a population of 61,000, up from approximately 35,000 in 1995. Housing growth may slow in future years because Tracy voters adopted building permit caps in November 2000, allowing, at most, 750 new homes a year (see CP&DR, December 2000, April 2000). But the measure's impact will not be felt for several years because 5,880 homes approved before the measure passed can still be built. Mark Connolly, a Tracy native and member of Tracy Regional Alliance for a Quality Community, which backed the housing cap, said that trying to attract economic development "is a good thing as long as residential developers don't sue over water." In recent years, homebuilders have sued commercial developers over water, he said, and water remains an issue because the city has already approved so many new homes without a good water plan in place. To attract development, the city boasts of plenty of land and low development costs. Last year, Bilbrey met with businesses that were comparing the costs of developing in Santa Clara ($84 per square foot) versus the costs of developing in Tracy ($6 per square foot). Even with the economic slowdown, the mayor believes that economics will push Silicon Valley business in his city's direction. "It may slow development here a bit, but I think it's just a temporary period of time," Bilbrey said. Tracy is getting the message from tech companies that the city does not offer the amenities they need, such as entertainment and conference facilities, said City Councilwoman Suzanne Tucker. But she added, "There's starting to be a lot more interest. We're preparing." Already, the city has snagged its first high-tech prize, albeit a small one. Malik and the mayor tout Moore Technology, which recently moved to Tracy from San Jose, as an example of the high-tech related companies that can be expected to lead the way. Moore Technology manufactures film that goes on silicon wafers, and employs about 50 workers in Tracy. Bilbrey said the city is in discussion with several other tech companies as well. Tech manufacturers, rather than researchers, are expected to find Tracy attractive, Malik said. Meanwhile, the city's first Class A office project is being planned, offering the city's best hope for high paying office and tech jobs. Called the Gateway Project, the 6 million-square-foot project is proposed by Sacramento developer Pifferetti and Associates on 538 acres. The property must first be annexed into the city. The project is not expected to gain the necessary approvals and begin construction until 2003. Bilbrey expects the project will include two-story to eight-story buildings and a golf course. The city is also trying to address the jobs-housing imbalance by applying for state funding for "opportunity zones," designed to lure additional companies through tax breaks and tax increment financing, much like redevelopment districts. Some of those funds may be used on the Gateway Project. The incentives are part of the efforts of the Inter-Regional Partnership, created between five Bay Area and Central Valley counties to address growth issues (see CP&DR, March 2000). Two other projects bring the promise of higher paying jobs to Tracy. One is planned by the Catellus Corporation, a major developer of commercial and industrial projects, which owns property northwest of town that is within the city's sphere of influence. A mixed-use development, including office parks and research and development facilities is being planned, although nothing has been submitted to the city yet, Malik said. A second project called Tracy Hills is also in the planning stages. The 5,300-acre project changed owners earlier this year, and is now owned by Sacramento-based AKT Development Corp. The land is approved for more than 5,000 homes, and light industrial, retail and other uses, although development appears to be several years off. The previous owner dropped plans for a tech business park at Tracy Hills, said Niki Doan, assistant project manager for AKT, which instead is endorsing tech elements of the Gateway and Catellus projects. Other projects on the horizon in Tracy include flex-office space, described as single-story buildings that can be used either for offices or for manufacturing and distribution. The first such project under development, the Edgewood Corporate Project, is only 40,000 square feet, but may grow if the demand increases, Malik said. Financial and insurance companies are expressing interest in using the space for call centers, he said. Contacts: Andrew Malik, Economic Development Director, City of Tracy, (209) 831-4104. Don Bilbrey, Tracy mayor, (209) 831-4103. Suzanne Tucker, Tracy councilmember, (209) 831-4103. Mark Connolly, Tracy Regional Alliance for a Quality Community, (209) 836-1237. Niki Doan, AKT Development, (916) 383-2500.

Constructing a golf course is a legitimate use of public parkland, the Fourth District Court of Appeal has ruled. The court ruled against an Orange County citizens group that alleged the county government was improperly using land dedicated for a park. At issue was Mile Square Park in Fountain Valley, a World War II military airfield that the county acquired from the federal government in 1973. The terms of the sale required the county to keep the 507-acre tract around the former runways for park and recreational uses. While leasing the land prior to purchasing it, the county had constructed a golf course on part of the site. During the 1980s, the county built a second golf course. In the early 1990s, the county purchased the remaining 137 acres of the former airfield, which the county had previously leased and left open to the public. The purchase of this "core area" came with an unrestricted title, and the county said it would develop "a mix of traditional commercial recreational uses." The county then undertook an extensive planning process that involved 17 public meetings and preparation of an environmental impact report. In May 1999, the Board of Supervisors decided to build a golf course, sports fields and a nature center on the core area. An organization called Save Mile Square Park Committee (SMSPC) sued. The group argued that the county was developing park property for non-park purposes without providing a replacement park or funds for a replacement, in violation of Public Resources Code § 5401. The group also alleged due process violations under the Federal Civil Rights Act. Orange County Superior Court Judge Eileen Moore issued summary judgment for the county, and a three-judge panel of the Fourth District, Division Three, unanimously upheld the decision. The case turned on the determination of what is a permissible use of parkland. The citizens group said that a golf course might be a proper use but that in this case the proposed golf course would displace hobbyists who have used the core area for years to fly model airplanes, landsail, walk, and ride bicycles. In his opinion, Justice William Bedsworth said he could find no California cases that address whether a golf course is a legitimate park use. However, some out-of-state rulings have concluded a golf course is a park use. He also pointed to definitions of a park found in San Vicente Etc. Sch. v. County of L.A., (1956) 147 Cal.App2d, 79, and to the California Wildlife, Coastal and Park Land Conservation Act. San Vicente says a park "is a pleasure ground set apart of recreation of the public, to promote its health and enjoyment." The conservation act calls a park "a tract of land … to be used by the public as a place for rest, recreation, education, exercise, inspiration and enjoyment." The court held that either definition fits a golf course. "It is apparent that the real dispute is over how the core area of Mile Square Park should be used — not whether golf is a park purpose," Bedsworth wrote. "SMSPC's complaint is political, not legal. And were we to accede to it, we would be taking on the role of a three-person Legislature." Whether or not the decision to build a golf course was wise, it was entirely legal, the court held. As for the due process claims, the court shot those down quickly. The citizens group argued it had a right to use the parkland and that the county took the right without due process. But the court ruled that the site remains parkland, and the "imagined right" did not exist. The Case: Save Mile Square Park Committee v. County of Orange, No. G027787, 01 C.D.O.S. 8913, 01 DJDAR 11083. Filed October 16, 2001 The Lawyers: For SMSPC: Vincent Goodwin, Goodwin & Wynen, (714) 565-1918. For the county: Stephen Martino, Madory, Zell & Pleiss, (714) 832-3772.

An environmental assessment of a 5,000-acre federal land exchange in Las Vegas did not sufficiently address the question of the cumulative air-quality impacts of developing the property, a three-judge panel of the Ninth U.S. Circuit Court of Appeals has ruled. The court held that federal officials may be required to prepare an environmental impact statement. The Bureau of Land Management owns most of the land surrounding Las Vegas. The federal agency often trades prime parcels to real estate developers in exchange for more remote property with higher environmental value. Activist Robert Hall, who claims he has developed a lung sensitivity to air and dust pollution since moving to the area, sued the BLM in 1997 over an exchange of almost 5,000 acres of land in the Las Vegas Valley to the Del Webb development corporation, which has subsequently proposed constructing 11,000 homes on the property. The BLM prepared an environmental assessment on the property that acknowledged the Las Vegas Valley is a federal air quality non-attainment area, but concluded that the Del Webb project would have no significant impact on air quality. U.S. District Court Judge Lloyd George ruled in favor of the BLM on all counts. On appeal, however, a three-judge panel of the Ninth Circuit overturned Judge George on some points, including the cumulative impact point. The panel ruled that, while the project-specific emissions alone were not "sufficient" and therefore did not rise to the level of requiring an EIS, the BLM might not have dealt with cumulative impacts. The court said that even though briefs filed by Hall, who represented himself in court, were unclear, the BLM had not sufficiently addressed the environmental impact of transferring into private hands 57,000 acres in the Las Vegas area that have been designated for land exchange. In granting summary judgment, the panel said, "There is no discussion by the district court of the potential emissions from the other 57,000 acres of land ‘identified for disposal' … e are not convinced that the district court fully considered Hall's environmental impacts argument." Regarding a lack of subject matter jurisdiction, the Ninth Circuit found that instead of challenging the environmental assessment and the Finding of No Significant Impact, Hall should have challenged the Environmental Protection Agency's ruling that land exchanges are exempt from Clean Air Act legal challenges under the "conformity" provisions of the law. The court agreed with Judge George that Hall should have filed the lawsuit in the U.S. District Court for the District of Columbia, as the exemption is a nationally applicable regulation. However, the Ninth Circuit panel did find that Hall has standing to sue because his discomfort "is not too remote" from the project's potential impacts to eliminate him as a plaintiff. The Case: Hall v. Norton, No. 99-16153, 01 C.D.O.S. 8053. Filed September 12, 2001. The Lawyers: Plaintiff Robert Hall represented himself. For Bureau of Land Management: Andrew M. Mergen, U.S. Department of Justice, Washington, D.C.

The state Supreme Court has agreed hear to an unusual case from the Sonoma County city of Cotati that involves both mobile home rent control and an alleged strategic lawsuit against public participation (SLAPP). Several years ago, Cotati implemented mobile home rent control in response to rapidly rising rents. Mobile home park owners in town sued in federal court, arguing that the rent control ordinance was unconstitutional. Cotati responded by filing a lawsuit in state court that sought to have the ordinance declared lawful. The mobile home park owners contended that Cotati's state court litigation was a SLAPP suit intended to prevent them from having their day in federal court. A trial court ruled against Cotati but the First District Court of Appeal reversed the decision and remanded the case back to the trial court in July. The appellate panel ruled that Cotati's lawsuit sought to resolve the same constitutional issues that mobile home park owners had raised themselves. The court held that Cotati's lawsuit served the public interest and did not result in additional expense or inconvenience for the park owners. The state high court has not yet set a date for oral arguments. The case is City of Cotati v. Gene Cashman, No. S099999, 2001 DJDAR 7375.

The City of Palm Springs has agreed to pay $1.2 million to a conservation organization because the city built a golf course on land donated to the city as desert preserve. The settlement apparently ends the protracted litigation between the city and the Living Desert Reserve of Palm Desert. Nearly 10 years ago, a landowner donated 30 acres of open space to the city on the condition that the land be used for a preserve. The grant deed stated that if the city did not keep the land as an open space preserve, the Deserve Reserve would get the property. However, the city condemned the property and developed the Tahquitz Creek Municipal Golf Course on the site. The Fourth District Court of Appeal eventually ruled for the Desert Reserve, harshly criticizing the city's tactics. With a trial date for determining compensation pending, the city sought to settle the lawsuit. The case is City of Palm Springs v. Living Desert Reserve, Riverside County Superior Court Case No. CIVI69605.

After years of design changes and project delays, a troubled North Hollywood redevelopment project finally appears to be headed toward construction. The Los Angeles Community Redevelopment Agency board in September approved $31.7 million in loans and subsidies to aid the $194-million NoHo Commons infill project. The 16-acre NoHo Commons project site sits in a blighted North Hollywood neighborhood and adjacent to the newly constructed Metro Red Line Station. The mixed-use project has undergone several modifications and now contains approximately 810 residential apartment units (247 units of which will be loft-style live-work spaces); 228,000 square feet of retail space that will include a 50,000-square-foot supermarket; 200,000 square feet of office space; a community health center; and a child care center. The development is the largest mixed-use project adjacent to a Metro station. NoHo Commons is part of a larger North Hollywood redevelopment project overseen by the mayor-appointed Los Angeles Community Redevelopment Agency (CRA). The agency is managing a 740-acre redevelopment project to bolster the arts and entertainment district. Along with the NoHo Commons project, the CRA plans to build new single-family homes and restore the historic Lankershim Train Depot. This is the third adaptation of the problem-plagued NoHo Commons project since original plans were unveiled in 1999. At that time, the proposal called for a $1 billion, 4 million-square-foot development to include larger retail, residential and office spaces as well as a hotel, multi-screen cinema, and film sound stages. But when the market turned sour, the previous developer, J. Allen Radford, dramatically downsized the project. Then in February, lacking financial backing, Radford agreed to sign over rights to the property to developer J. H. Snyder in exchange for a 12.5% share in the project. The troubled project seemed to make progress when Snyder took control. The mixed-use project was last scaled back in July only after the Los Angeles Unified School District proposed building a high school on some of the property originally set-aside for the development. Los Angeles Unified School District plans to build a school on about eight acres, said David Stolzer, senior real estate development agent for the CRA. The Los Angeles-based J. H. Snyder touts development of many retail, office and residential projects, but senior partner Cliff Goldstein said that Snyder has never integrated all of these elements into one mixed-use project of this magnitude. "This is our attempt to remove a blighted area and be a catalyst for redevelopment in the North Hollywood area," Goldstein said. "And we want to build a new community that will utilize mass transportation." The community surrounding NoHo Commons will get ample opportunity to make use of the nearby subway. The rail station will be easily accessible from the Commons and the Metropolitan Transit Authority plans to develop 13 acres of its nearby property to enhance the rail station, Goldstein said. Absent from the infill project is the usual opposition from neighborhood residents. In fact, North Hollywood Residents Association President Victor Viereck said he is eager to see the project move along. When it comes to shopping, area residents do not have many options and must drive to Burbank and Sherman Oaks to shop, he said. "I am eager to see it happen, finally," Viereck said. "Anyone familiar with North Hollywood knows there is no downtown to it. … This needs to be done." Goldstein said ample retail, such as a supermarket, restaurants, small storefronts, and a major bookstore, will be available, but the developer is staying away from big-box retailers common in large malls. Despite a good reception from residents, the welcome wagon is not exactly revving its engine. The North Hollywood Residents Association does oppose one aspect of the project: the $31.7 million CRA project funding. Viereck argued that Snyder should be responsible for the entire tab of the project and that taxpayers should not have to foot any part of the bill. But he does not blame the developer. Viereck instead blames the CRA, complaining that the agency is largely responsible for the lack of progress in the North Hollywood area. "It has been delayed for so long, and the CRA has been the main reason why nothing has happened until now." Viereck says. "The CRA is an additional layer of bureaucracy for the developer to go through." Without the CRA, other areas of the city have developed property faster and more efficiently, Viereck charged, pointing to efforts in Sherman Oaks and Northridge. While it opposes the public funding of NoHo Commons, the North Hollywood Residents Association has not made any demands on the project. But one labor advocacy group, the Los Angeles Alliance for a New Economy (LAANE), has made demands on the project. The group has worked with the CRA and NoHo Commons developers for two years to hammer out a deal that LAANE says satisfies the local community. According to Goldstein, the community benefits package that the three disparate groups signed includes a promise that 75% of the employment at NoHo Commons will be living-wage jobs, and there will be an on-site health care clinic, an affordable child care facility and a one-stop job resources center. Roxane Auer, a researcher for the LAANE accountable development project said that her organization met numerous times with North Hollywood residents to assess the community needs. After deciding on several elements, including living-wage jobs and affordable child care, LAANE put together a six-member negotiating team that bargained with the CRA and Snyder for concessions. LAANE does not oppose the subsidy like the NoHo Residents Association does, but it does believe that when taxpayer subsidies are used for private developments, workers should be compensated with living-wage jobs. Auer said that many projects receive public subsidies, and those projects need to be accountable to the communities where they are built. LAANE's mission, she said, is to work with those projects and not against them. "At first they might have been reluctant to deal with us, but they were receptive to our ideas," Auer said of NoHo Commons proponents. "And after a time they realized that we had very focused concerns." Although LAANE did not get everything it wanted out of the bargaining sessions, Auer called the community benefits package they did receive a "major step forward" in the development process. The NoHo Commons project has just one more step on its way to groundbreaking. The Los Angeles City Council must give final approval to the project. A vote is scheduled for this fall, and developers plan to break ground on the first of three phases in June 2002. Goldstein says that barring any further delays, NoHo Commons should be complete sometime in 2006. Contacts: David Stolzer, Los Angeles Community Redevelopment Agency, (818) 753-1918. Cliff Goldstein, J.H. Snyder (323) 857-5546. Victor Viereck, North Hollywood Residents Association, (818) 985-9174. Roxane Auer, Los Angeles Alliance for a New Economy, (213) 486-9880. LAANE website: www.laane.org

Other land use bills approved during 2001: CEQA AB 436 (Chan). Allows a focused EIR to be prepared in parts of the City of Oakland for certain urban infill, multi-family, residential developments, or residential and commercial projects, or retail mixed-use developments with not more than 25% of the total floor area used as retail space. Signed by governor. AB 1532 (Pavley). Requires a lead agency to call at least one scoping meeting for a project of statewide, regional or area-wide significance. Signed by governor. SB 244 (Speier). Extends the public review period to 120 days for the draft EIR on the San Francisco International Airport expansion, and gives the San Mateo County Board of Supervisors a say over the runway project. Signed by governor. General Plans AB 1367 (Wiggins). Establishes a meet-and-confer process between school districts and local governments to address long-range school-siting plans. Signed by governor. AB 1553 (Keeley). Requires the Office of Planning and Research to include environmental justice procedures in its general plan guidelines. Signed by governor. SB 520 (Chesbro). Requires general plan housing elements to consider the needs of disabled people. Signed by governor. SB 932 (McPherson). Extends by six months the deadline for jurisdictions in the Association of Monterey Bay Area Governments to complete updated housing elements. The new deadline is December 31, 2002. The bill also extends by six months the deadline for all local governments not otherwise specified in statute to update their housing elements. That new deadline is December 31, 2003. Signed by governor. Housing AB 8 (Cedillo). Increases the amount of per-unit assistance available under the Department of Housing and Community Development's Downtown Rebound Program. The bill also requires the units to be in a school attendance area where at least 50% of students qualify for free meals. Signed by governor. AB 369 (Dutra). Allows courts to award attorneys' fees against local governments that violate the anti-NIMBY law. Developers or housing advocates are eligible for receiving attorneys' fees after winning a lawsuit. Signed by the governor. AB 807 (Salinas). Extends the Farmworker Housing Grant program to include seasonal, migrant housing. Signed by governor. AB 1359 (Lowenthal). Merges four existing predevelopment loan programs. The consolidated program will provide loans for technical and financial assistance to local government agencies and nonprofit corporations for predevelopment expenses incurred in the production or rehabilitation of affordable housing in urban and rural areas. Signed by governor. AB 1611 (Keeley). Authorizes the California Educational Facility Authority to sign agreements with nonprofit entities to finance housing construction for students, staff and faculty near UC, CSU, community college and participating private college campuses. Signed by governor. SB 73 (Dunn). Increases the State Low-Income Housing Tax Credit program by $20 million to $70 million a year, and indexes the program for inflation. Signed by governor. SB 784 (Torlakson). Establishes the Jobs-Housing Balance Program within HCD as an on-going program, and allows local governments to use grants for any purposes. Signed by governor. SB 1098 (Alarcon) Prohibits cities and counties from extending beyond 45 days a moratorium on housing projects that have large multi-family components. A city or county could extend the moratorium only if it makes specific findings based on substantial evidence that the moratorium was the only way to avoid significant, quantifiable health and safety impacts. Signed by governor. SB 1209 (Romero). Enables the California Educational Facility Authority to offer tax-exempt revenue bonds for construction of faculty housing owned by private colleges. Vetoed by governor. Natural Resources ABX2 27 (Lowenthal). Authorizes the State Lands Commission to execute a contract with the City of Long Beach and any city contractor to provide incentives to explore and develop gas reserves in the Long Beach tidelands. Signed by the governor. AB 104 (Nation). Allows boards of supervisors in nine Bay Area counties to levy a vehicle registration fee of up to $4 to fund open space purchases, improve water quality and restore wetlands. Vetoed by governor. AB 134 (Kelley). Allows the Castaic Lake Water Agency, which sells water wholesale, to provide retail water service to a specific area. Signed by governor. AB 252 (Pavley). Grants temporary protection under the California Endangered Species Act to any plant or animal thought to have been extinct but is rediscovered. The bill's target is the 3,000-home Ahmanson Ranch project in Ventura County, where a flower thought to have disappeared was rediscovered. Vetoed by governor. AB 910 (Wayne). Modifies the process by which a government agency can condemn wildlife conservation easements that have been acquired by the state. The bill, aimed at construction of water infrastructure in waterfowl habitat, creates a more stringent process for water agencies. Signed by governor. AB 1207 (Longville). Gives cities and counties until April 15, 2002, to enact ordinances governing the development of power-generating windmills in non-urbanized areas. If a city or county does not adopt rules, a landowner may build a windmill by right. The bill also places restrictions on how much a city or county can regulate windmills. Signed by governor. SB 909 (Chesbro). Extends the time for public comment on timber harvest plans. Signed by governor. Redevelopment AB 212 (Correa). Requires the City of Tustin to give 100 acres of the former Tustin Marine Corps base to the Santa Ana Unified and Rancho Santiago Community College school districts. Signed by governor. AB 237 (Papan). Requires the final offer of a public entity that is in eminent domain proceedings to include compensation for loss of goodwill. The bill also sets up a process for mediating eminent domain disputes. Signed by governor. AB 637 (Lowenthal). Makes a number of changes to housing requirements in redevelopment law. The bill eliminates the January 1 sunset date for the 15% inclusionary housing requirement, mandates that redevelopment agencies leverage their housing spending with private and commercial financing, and requires that housing units provided by agencies remain affordable for up to 55 years. Signed by governor. AB 1567 (Runner). Allows the Lancaster Redevelopment Agency to satisfy the inclusionary housing requirement by purchasing long-term affordability covenants on mobile home parks. Signed by governor. SB 32 (Escutia). Is a three-part brownfields bill. First, it enables local governments to order the investigation and cleanup of idle parcels of less than 5 acres. Second, it requires Cal EPA to conduct a peer reviewing of "screening numbers," which are advisory figures that provide rough estimates of what level of cleanup might be required before redeveloping a property for a particular use. Third, it requires Cal EPA to publish information helping local officials and developers to understand the factors and procedures the Department of Toxic Substances Control and regional water boards use when ordering cleanups. Signed by governor. Others AB 93 (Wayne) Creates the San Diego Regional Airport Authority. The new nine-member, appointed entity will have exclusive authority to plan, build and operate regional airports in San Diego County. The bill removes the Port of San Diego and the San Diego Association of Governments from the process of planning a new airport to replace Lindbergh Field in San Diego. Signed by governor. AB 330 (Reyes). Allows cities that annex land covered by a Williamson Act contract to avoid Williamson Act restrictions on development. Vetoed by governor. AB 545 (Steinberg) Requires the state, when leasing, purchasing or constructing state government office buildings, to consider the availability of public transit, proximity to affordable housing, pedestrian access to retail businesses, and the need for an area's economic revitalization. The bill gives priority to use of buildings with historic, architectural or cultural significance. It also requires state-owned office buildings, when feasible, to include ground-floor retail or other amenities to serve pedestrians. Vetoed by governor, who then signed an executive order containing many provisions of this bill. AB 1171 (Dutra). Calls for the state to pay 40% of the cost of earthquake retrofits of Bay Area toll bridges — about $820 million. The bill also extends a $1 toll surcharge until enough money is collected. Signed by governor. AB 1419 (Aroner). A complicated bill that, among other things, requires Caltrans to provide 20 acres to San Francisco for $1 to allow redevelopment of the San Francisco Transbay Terminal project. The bill also provides a limited exemption from CEQA. Vetoed by governor. AB 1495 (Cox). Alters the procedures for revenue neutrality calculations when new cities are proposed, and sets up new ways to handle appeals for city incorporations. Signed by governor. AB 1564 (Cardenas). Allows American Indian tribes to negotiate directly with Caltrans for highway projects to serve reservations. The legislation is intended primarily to help the Miwok Indian tribe get a Highway 50 interchange in El Dorado County to serve a proposed casino and resort. Vetoed by governor. SB 975 (Alarcon). Extends prevailing wage requirements to developments that receive subsidies of almost any sort, including fee waivers and reimbursements. The bill makes a few exceptions for certain affordable housing projects. Signed by governor.

The Ninth Circuit Court of Appeals has allowed members of the building industry to intervene in a lawsuit that environmentalists filed regarding the San Diego Multi-Species Conservation Program (MSCP). In overturning a district court ruling, the Ninth Circuit held that Pardee Construction, the Building Industry Legal Defense Foundation, the National Association of Home Builders, the California Building Industry Association and the Building Industry Association of San Diego adequately demonstrated that their interests were at stake in the lawsuit and that the government agencies that had been sued would not necessarily represent the builders' interests. The San Diego MSCP is possibly the broadest plan of its type in the country. Drafted to meet the dictates of habitat conservation planning under federal law, and natural communities conservation planning under state law, the plan addresses scores of species and about 900 square miles in unincorporated San Diego County, the City of San Diego and other cities. It sets aside 171,000 acres for permanent habitat protection. The plan also provides a basis for jurisdictions to adopt subarea plans. After adopting the MSCP and a subarea plan, San Diego signed an "implementation agreement" with the U.S. Fish & Wildlife Service and the California Department of Fish & Game. The implementation agreement gives the city the power for 50 years to allow "incidental take" of endangered and threatened species to accommodate a development project that meets the requirements of the various plans. In December 1998, the Southwest Center for Biological Diversity and 30 other environmental groups sued federal and city officials. The environmentalists challenged the formulation, approval and implementation of the MSCP, San Diego's subarea plan, the implementation agreement and San Diego's incidental take permit. Environmentalists took specific issue with the treatment of vernal pools — seasonal puddles that provide habitat for five endangered plant species and two species of endangered fairy shrimp. In June 1999, Pardee and the building trade groups filed a request to intervene in defense of the lawsuit. The environmentalists opposed the request while the government remained neutral. Federal Circuit Judge Irma Gonzalez denied the request for a variety of reasons. But the unanimous three-judge panel of the Ninth Circuit reversed Gonzalez and allowed the builders to help defend the suit. In arguing to become intervenors, Pardee said that it had five projects that rely on the plans, and members of the organizations said they have developed land based on the plans. The prima facie showing of an interest was enough for the builders to be allowed into a lawsuit, the Ninth Circuit held. "There is no doubt that the central goal of this action is the protection of the vernal pool species," Judge Ronald Gould wrote for the court. "Given the scope of the action, Applicants' projects that are in the pipeline for design and mitigation assurances and approval under the may be affected whether or not they impacted vernal pool species." Furthermore, the city and federal governments have different interests than do the builders, the court ruled. "Just as the City could not successfully negotiate the Plans without some private sector participation from Applicants, so too the City in this case cannot be expected successfully to safeguard Applicants' legally protectable interests," Gould wrote. The case heads back to the trial court level for further proceedings. The Case: Southwest Center for Biological Diversity v. Ken Berg, No. 99-56627, 01 C.D.O.S. 8453, 2001 DJDAR 10457. Filed September 27, 2001. The Lawyers: For Southwest Center: Neil Levine, Earthlaw, (303) 623-9466. For the builders: John C. Eastman, Claremont Institute Center for Constitutional Jurisprudence, (714) 628-2587.

When taking property by eminent domain, a city does not have to pay for the property's value as a potential garbage dump, the Third District Court of Appeal has ruled. The court held that the farmland's value as a landfill was too speculative under eminent domain law. The case involved the City of Stockton's condemnation of land owned by Albert Brocchini Farms. Prior to the trial to determine the property's value, the city asked the court to prohibit the testimony of a Brocchini expert regarding the property's value as a landfill. The city argued that the expert failed to establish the likelihood of a private developer receiving permits to open a landfill on the site, and that the expert made speculative assumptions regarding landfill operating costs and income. Brocchini countered that public and private landfills sit adjacent to the property in question. Brocchini also contended that a landfill was analogous to land with mineral rights, which must be considered when determining property value. Brocchini argued that private parties in the trash business use the discounted cash value for determining property value. San Joaquin County Superior Court Judge Duane Martin ruled for the city, calling the expert's analysis too speculative. The appellate court agreed. A fair value to be paid during an eminent domain procedure may take into account rental income from the property itself, but not income from business conducted on the property, the court held. In this case, the property owner sought compensation for a hypothetical business on the property, which the court viewed with skepticism. The court further ruled that a proposed landfill was nothing like property with mineral rights. Mineral interests "are a commodity with an intrinsic value," Justice Rodney Davis wrote for the unanimous three-judge panel. The market for a landfill, however, is volatile and affected by the awarding of collection franchises, public opposition to siting, and the efficacy of conservation and recycling efforts. "Under these circumstances, a claimed expertise at fixing a value is chimerical," Davis wrote. The court also considered an appeal from Stockton. The city had allowed Brocchini to continue farming the land until June 1997, 14 months after an order of possession took effect. Judge Martin ruled that Brocchini Farms was entitled to interest on the judgment during those 14 months, as the company was not paid until it surrendered the property. The city argued that the interest should have been offset by consideration for Brocchini's use of the property. Brocchini argued — and the trial court agreed — that the offset was itself offset because Brocchini lost money on its final crop of alfalfa. The Third District reversed the trial court on this point. Whether or not Brocchini made money while continuing to occupy the land was irrelevant, the court ruled. The city was entitled to the offset under Code of Civil Procedure § 1268.330, and there was no basis for the trial court to limit the offset. The law even presumes the offset amount to be equal to the rate of interest unless there is evidence otherwise. Such evidence did not exist in this case, the court ruled. The Case: City of Stockton v. Albert Brocchini Farms, Inc., No. C034813, 01 C.D.O.S. 8016. Filed September 10, 2001. The Lawyers: For Stockton: Richard Denhalter, city attorney, (209) 937-8333. For Brocchini: John McKinley, Brown, Hall, Shore & McKinley, (209) 477-8171.

In the clearest decision to date on antiquated subdivisions, the First District Court of Appeal has ruled that subdivision maps recorded prior to the first version of the Subdivision Map Act in 1893 do not create legal parcels. "Despite the bold vision of those who created them, such early subdivision maps — if drawn and recorded before 1893 — do not create legal parcels within the meaning of California's Subdivision Map Act," Justice James Marchiano wrote for court. The case, which stems from an 1865 map in Sonoma County, appears to resolve what has been one of planning's stickiest issues — the legal status of "paper subdivisions" that were recorded with no review and often without regard to topography or provision of public services. An estimated 400,000 to 1 million paper lots exist in California, many in coastal counties. "It really was an unclear area. It was like dancing on the head of a pin," said Les Perry, who represented landowners Jack and Jocelyn Gardner in the case. Perry, who said he will seek a state Supreme Court review of the decision, said he was "disappointed, but not surprised" by the ruling. Both Perry and Sonoma Deputy County Counsel Sue Gallagher, who defended against the lawsuit, agreed that the clear facts of the case made it a good one for resolution of the issue. "It's quite important for us and quite a few other counties," Gallagher said. "We have many other old maps here in Sonoma County from the mid- and late-1800s." Other recent cases have not been so clear-cut. Last year, the Second District Court of Appeal ruled in a complicated case from Santa Barbara County that pre-1893 subdivisions do not exist unless the parcels therein have been subject to a transfer of title at some point. (Circle K Ranch Corp. v. Board of Supervisors of the County of Santa Barbara, No. B124996, see CP&DR Legal Digest, May 2000.) However, the state Supreme Court ordered that decision depublished. The Second District tackled another antiquated subdivision case this year but ruled that the plaintiff did not have standing to bring the lawsuit. (County of San Luis Obispo v. Superior Court, 2001 DJDAR 6739, see CP&DR Legal Digest, August 2001.) A few important cases have touched on the issue of antiquate subdivisions, but none dealt with it directly. The state Supreme Court came close in the landmark case of Morehart v. County of Santa Barbara, (1994) 7 Ca.4th 725. The parcel in question in Morehart appeared on an 1888 map. However, the county conceded that the lot existed and the question was whether the Subdivision Map Act's merger provision applied. The state high court "explicitly declined to decide the issue of whether a pre-1893 antiquated map ‘creates' a legal parcel …" Justice Marchiano wrote in the case at hand. This case was brought by the Gardner family, which owns about 158 acres west of Sebastopol. The property is depicted on a 90-lot map recorded in 1865 by landowner S.H. Greene. The Gardners' property contains two full lots and portions of 10 others depicted on the Greene map. These days, the site is zoned Resource and Rural Development. It contains steep slopes and is the subject of a timber harvest plan. In 1996, the Gardners applied for 12 certificates of compliance for their lots. County planners denied the application, a decision that both the Planning Commission and the Board of Supervisors upheld. The board found that recognizing the old map would undermine "rational land use planning." So the Gardners filed a lawsuit, alleging that the Subdivision Map Act's grandfather provision covered the Greene map. Sonoma County Superior Court Judge Knoel Owen ruled for the county. A unanimous three-judge panel of the First District, Division One, agreed. The appellate court found that the grandfather clause was inapplicable. "The Legislature intended the grandfather clause to apply to subdivisions approved under prior versions of the Act, i.e., to exempt from the current Act those subdivisions established in compliance with or exempt from laws then in effect. The Legislature, with its strenuous emphasis on local control and approval of subdivisions, did not intend the grandfather clause to apply to the pre-1893 legal ‘State of Nature' when no subdivision statute was in existence," Marchiano wrote. He continued, "The Map Act does not reveal a legislative intent to exempt recorded subdivision maps which were not subject to any subdivision law from a time when there was little land use regulation. … f the Legislature wished to exempt antiquated maps from the Map Act, it could have done so in clear and express language. Grandfathering does not spring up by inference." To make his point, Marchiano noted that every version of the Subdivision Map Act since 1907 has had a grandfather clause — but the original act from 1893 did not. If lawmakers wanted to grandfather in pre-1893 maps, it would have done so at the time, he wrote. Gallagher said she was happy to get this issue resolved. But, she said, there still exists the question of validity of maps recorded between 1893 and 1929 because not until the 1929 revision of the map act was local government review and approval required. Prior to that time, the map act was concerned with the mechanics of drawing and recording maps, not whether the subdivisions were a good idea. The Case: Jack A. Gardner v. County of Sonoma, No. A093139, 01 C.D.O.S. 8793, 2001 DJDAR 10909. Filed October 11, 2001. The Lawyers: For Gardner: Leslie Perry, Perry, Johnson, Murray, Anderson & Miller, (707) 525-8800. For the county: Sue Gallagher, deputy county counsel, (707) 565-2421.

It was surprising news when the Center for Biological Diversity announced it had signed an out-of-court agreement regarding endangered species with its longtime adversaries at the U.S. Fish & Wildlife Service. With a decade-long winning streak in court, the Tucson-based Center has become arguably the most important entity in the Endangered Species Act debate. Why wouldn't the organization want to continue kicking butt in court, especially since Gail Norton had replaced Bruce Babbitt as head of the Interior Department? Many of the answers to that question are surprisingly simple and are based largely on both sides' concern over some species that could disappear within the next 12 months. And, it is important to note that although the Center and the federal government have become friends this one time, there is no reason to believe conflicts will not continue in the future. In fact, the Center has filed new lawsuits against the federal government over protection of species since the agreement was announced at the end of August — and the agency has decided not to place on the endangered list one of the species that was the subject of the agreement. The agreement has drawn mixed reviews, with developers' reactions ranging from cautious to hostile, and environmentalists generally saying neutral or good things. The National Association of Home Builders criticized the agreement, saying that the Interior Department needs to focus on revising the Endangered Species Act. Under the agreement, the Center gave the Fish & Wildlife Service more time to make decisions on eight critical habitat designations for species that have already been declared endangered or threatened. The Fish & Wildlife Service agreed to use the $600,000 it would have spent on the critical habitat designations for making decisions on the status of 29 species. The federal officials agreed to make emergency listings for three species, make final decisions on 14 candidate species, propose eight other species for protection, and make decisions on four Endangered Species Act petitions. This activity marks a turnaround from November 2000, when the Fish & Wildlife Service announced a moratorium on new listings. Since the agreement was signed, the agency has announced decisions and rules regarding a number of the involved species, which include five animals and one plant that live in California. Those actions and others to come in the near future would not have occurred without the agreement, said Chris Tollefson, a spokesman for the Fish & Wildlife Service in Washington, D.C. Everyone agreed that the species involved appear to have suffered major losses in recent years and need immediate attention, he said. "It really was not adversarial at all," said Kiernan Suckling, the Center's executive director. "We and the Fish & Wildlife Service had a common concern, which was that species are not getting protected." One of the major effects of the settlement was to highlight the Fish & Wildlife Service's lack of funding to carry out the Endangered Species Act. The agency estimates that tackling the full listing backlog — including implementation of 83 court orders — would cost $120 million. Yet the agency's listing budget this year is $6.3 million, and the agency has hesitated to ask for a major appropriation increase. The agreement "would never have been necessary if, over the years, the Congress had provided Interior with the resources it needed to enforce the act in a systematic, timely way," The New York Times opined in an editorial. Added David Henkin, a Honolulu-based attorney for Earthjustice Legal Defense Fund, "What this agreement really underlines is the need for the Fish & Wildlife Service to acquire sufficient funding for its listing program." Suckling said that for all the disputes his organization has had with the Fish & Wildlife Service, he believes the agency really does care. "This is an agency that is under tremendous political pressure," Suckling said. Most of that pressure has been applied by officials from the West who believe strongly in private property rights. But recently, U.S. Sen. Harry Reid (D-Nevada) has led a contingent urging greater funding for Endangered Species Act programs. Curiously, Suckling believes that species advocates may have more success on the ground — especially in California — under the Republican administration than under the regime of Bill Clinton and his Interior secretary, Bruce Babbitt. Babbitt tried to achieve consensus and compromise on Endangered Species Act issues, and was the major proponent of Habitat Conservation Plans, especially in California (see CP&DR, June 2001, March 1998, December 1997, April 1994). But hard-core environmentalists have criticized HCPs as political answers to scientific problems, and have railed against HCPs' "no surprises" provision, under which landowners cannot be required to spend more money or set aside additional resources for species covered by the HCP. Suckling said that Babbitt was never interested in the type of deal that Norton was willing to cut after only four months of negotiation. Suckling argues that Babbitt wanted to appease California developers, some of whom he has gone to work for since leaving office. On the other hand, Bush was trounced in California during the election and has shown little interest in reaching out to anyone in the state. "Oddly, I think California developers may have less influence under the Bush administration than they did with the Clinton administration," Suckling said. So, does the settlement signal a new truce among an odd couple? "We're hopeful it will set a tone for the future," Fish & Wildlife Service spokesman Tollefson said. "We'd like to make the Endangered Species Act work better." The agency, he said, has been inundated with litigation and has spent most of its money on court orders and settlements from those lawsuits — rather than on systematically addressing rare species. "As has been proven, the litigation route is not the most effective. It doesn't benefit species," Tollefson said. Suckling spoke of a "new trust" and said the agreement shows that the Center is willing to work with federal regulators. But Suckling made clear that future activities — or inactivity — of the Interior Department might be the subject of legal action. "If lawsuits have become part of the listing system, it's only because politics have taken up residency in the heart of the listing system. Lawsuits are the one thing we can use to counter that," he said. Nor should builders and government officials consider existing HCP's safe, Suckling vowed. Some of the new listings should force changes to HCPs, especially Southern California plans that account for the yellow-legged frog, he said. "We're not going to accept that a deal is a deal even if it means the extinction of a species. That is precisely why we have an Endangered Species Act," Suckling said. Contacts: Kieran Suckling, Center for Biological Diversity, (360) 468-2810. Chris Tollefson, U.S. Fish & Wildlife Service, (202) 208-5634. David Henkin, Earthjustice Legal Defense Fund, (808) 599-2436. Center for Biological Diversity's settlement website: www.sw-center.org/swcbd/press/settlementesa.html