Gov. Gray Davis completed the legislative year by signing every high-profile planning bill that hit his desk. Davis signed a bill that severely curtails the use of lot line adjustments and certificates of compliance in creating subdivisions. He approved a three-package bill that forces a closer link between planning and water availability. The governor also signed a $2.6 billion park bond initiative that will appear on the March ballot, and a measure that allows redevelopment agencies to extend their life spans by 10 years. Unlike previous years, Davis vetoed few land use measures. "I think he was much more aware of planning issues this year," said Sande George, lobbyist for the California Chapter of the American Planning Association. While Davis' signature on the water and planning bills was not entirely unexpected, many people viewed the governor's decision on the lot line adjustment crackdown as a big test. That bill, SB 497 (Sher), severely restricts landowners' practice of seeking certificates of compliance to legitimize antiquated subdivisions, and then using lot line adjustments to reconfigure the old lots into more usable — and more valuable — parcels. The measure limits lot line adjustments to only four parcels. The measure was lawmakers' direct response to the Hearst Corporation's stated plan to rely on an 1852 map to carve 279 parcels out of its 83,000-acre ranch in San Luis Obispo County, where the Coastal Commission has blocked Hearst plans for a resort. Davis signed the bill but, interestingly, issued no statement regarding his decision. Most of the state's powerful development, real estate and forestry interests lobbied hard for a veto. How the bill will actually affect the Hearst Ranch is uncertain, as San Luis Obispo County has already issued Hearst nearly all of the certificates of compliance that the company sought. Davis did have something to say about the water bills. The governor said SB 221 (Kuehl) and SB 610 (Costa) "provide an important and necessary foundation for developing comprehensive state water policies to prepare California to meet our future water needs." The Kuehl bill applies to projects of at least 500 homes. The measure requires a water provider or local government to make a finding, based on substantial evidence, that adequate water is available without putting the existing community at risk. While SB 221 hits development at the end of the planning process, the Costa bill focuses on the early stages by forcing water agencies to take a substantial role in the preparation of municipal water plans. The governor also signed SB 672 (Machado), which integrates regional and state needs and encourages the use of new technologies. Davis used his signing message for the water bills to "re-emphasize the need to aggressively pursue infrastructure projects throughout California." Among the projects he identified were increased water storage, including raising the height of Shasta Dam, more conjunctive use of surface water and groundwater, and implementation of the Cal-Fed Bay Delta project. As implied by the formal name of SB 1602 (the Clean Water, Clean Air, Safe Neighborhood Parks and Coastal Protection Bond Act), a wide variety of land purchases and restoration activities would qualify for some of the $2.6 billion if voters approve the ballot measure next March. In his signing message, Davis said he supported investing in parks and natural resources, but noted that the state's economy — and, therefore, state revenues — are rapidly declining. If voters approve the park bond, Davis promised to disburse the money slowly "to balance the cost of debt service with other high priority demands on the general fund." Hundreds of cities closely watched the redevelopment bill, SB 211 (Torlakson). It allows a 10-year extension of any pre-1994 redevelopment project area if the jurisdiction has a state-approved housing element and it makes a finding that significant blight remains. The 10-year extension comes with a number of conditions, including a requirement that agencies spend at least 30% of the additional tax increment on low- and very low-income housing, as compared with the usual requirement of 20% for low- and moderate-income housing. The California Redevelopment Association, which sponsored SB 211, had to make a number of concessions to get it through the Legislature, said CRA Executive Director William Carlson. "The Legislature, even though it is heavily Democratic, is very skeptical about redevelopment. So we had a tough time," he said. Carlson estimated that about 40% of eligible agencies would qualify for an extension, depending on whether they can make the required blight finding. Had Davis vetoed the bill, many of redevelopment agencies facing a 2004 deadline for issuing debt would have sought individual extensions next year, Carlson said. The Torlakson bill provides needed uniformity, he said. Davis's signing of SB 211 came over the objection of his Department of Finance, which worried about school district revenue losses that the state must backfill. However, the Department of Housing and Community Development urged approval because officials estimated the measure could provide up to $1 billion for affordable housing. Other land use bills: 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. . AB 1532 (Pavley). Requires a lead agency to call at least one scoping meeting for a project of statewide, regional or area-wide significance. 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. General Plans AB 1367 (Wiggins). Establishes a meet-and-confer process between school districts and local governments to address long-range school-siting plans. AB 1553 (Keeley). Requires the Office of Planning and Research to include environmental justice matters in its general plan guidelines. SB 520 (Chesbro). Requires general plan housing elements to consider the needs of disabled people. 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. 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. 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. AB 807 (Salinas). Extends the Farmworker Housing Grant program to include seasonal, migrant housing. 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. 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. 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. 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. 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. SB 1209 (Romero). Enables the California Educational Facility Authority to offer tax-exempt revenue bonds for construction of faculty housing owned by private colleges. 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. 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. AB 134 (Kelley). Allows the Castaic Lake Water Agency, which sells water wholesale, to provide retail water service to a specific area. 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. 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. SB 909 (Chesbro). Extends the time for public comment on timber harvest plans. 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. 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. 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 require that housing units provided by agencies remain affordable for up to 55 years. AB 1567 (Runner). Allows the Lancaster Redevelopment Agency to satisfy the inclusionary housing requirement by purchasing long-term affordability covenants on mobile home parks. 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. 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. AB 330 (Reyes). Allows cities that annex land covered by a Williamson Act contract to avoid Williamson Act restrictions on development. 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. 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. 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. 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. 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.

The largest development project in Tuolumne County in decades could wind up as a referendum on the March 2002 ballot. On a 3-2 vote in mid-September, the county Board of Supervisors approved the 1,500-unit, 1,105-acre Mountain Springs subdivision about two miles south of Sonora. Project opponents immediately began work on a referendum of the general plan amendment, rezoning and development agreement. A group called Voters Choice on Mountain Springs had 30 days to collect 2,011 valid signatures to force a vote — and the campaigning had begun even before petitions hit the streets. At first blush, the battle appears to be the classic no-growth-versus-slow-growth confrontation that is so common in the Sierra Nevada foothills. However, this controversy has some different shadings. The opponents are not necessarily strong environmentalists willing to fight any project. The proponents are mostly local investors, and their project has some characteristics that set it apart from similar retirement villages. Shortly after Tuolumne Investors was first organized in 1987, the group purchased about 1,000 acres of pasture and timberland outside Sonora that was under Williamson Act contract. Tuolumne Investors did not renew the Williamson Act contract and built a golf course under use permit in 1990. The investors always had eye toward a large development once the 10-year Williamson Act protections expired, general partner Kim Daters said. A county general plan update adopted in 1996 identified the area south of Sonora (the county's only incorporated city) as a new community separate from both Sonora and nearby Jamestown. In 1997, Tuolumne Investors submitted an application for Mountain Springs. The developer proposed 2,076 homes to be built in clusters around the golf course, as well as 35,000 square feet of commercial space, a hotel and conference center, and community recreation facilities. "Our intent was to create something more than Tuolumne County has ever seen before with regard to an extensively planned community," said John Wilbanks, principal with RRM Design Group in Oakdale, who designed Mountain Springs. "It certainly is a different pattern of development for Tuolumne County." Tuolumne County, like numerous others in the foothills of the Sierra Nevada or southern Cascade Mountains, has seen extensive development of 1- to 5-acre ranchettes. Tuolumne County's largest subdivisions were built during the 1960s and 70s, with many houses starting out as weekend cabins or retirement homes. The county grew rapidly during the 1970s and 80s, its population roughly doubling in 20 years to 48,400 in 1990, according to the census. But growth slowed to about 1% annually during the 1990s, partly because of a downturn in the timber and mining industries. During the general plan update and the county's early processing of the Mountain Springs application, little public opposition arose, said Bev Shane, Tuolumne County Community Development Director. But by the time the Planning Commission considered the project and accompanying environmental impact report this spring, scores of opponents had made themselves known. They raised questions about water supply, traffic, noise, growth inducements and a change in community character. The Planning Commission voted 4-1 to recommend approval of a 1,750-unit project despite the objections. The Board of Supervisors conducted lengthy hearings in August and September before voting 3-2 for the project on September 11. Supervisors further reduced the project to 1,500 units. "It was one of the most exhaustive planning processes I've ever been involved in in my 22 years as a planner," said RRM's Wilbanks. Shane said questions about the project have been answered in the EIR, and she noted the county included hundreds of conditions in the lengthy development agreement. A study mandated by Tuolumne Utilities District found that twice as much water as the project needs and adequate sewage treatment capacity are available, Shane said. But the developer must help fund new effluent storage facilities for use during wet months, when land disposal is not possible. Two roads link the project to Sonora and the developer must provide extensive improvements. The area around the project is mostly pasture and 3- to 5-acre ranchettes. Those property owners will undoubtedly be affected, but not all of them oppose Mountain Springs, Shane added. The developer also has agreed to pay additional fees for arts, parks and schools, and to build a new fire station, the operation of which future residents will help fund. None of these items were required by county ordinance, Shane said. But the Voters Choice organization is unconvinced. One of the group's founders, Bob Dambacher, said he does not believe the water study or promises of improving wastewater facilities. "We get a lot of rain, but most of our water has been taken by the City of San Francisco, and the valley cities of Turlock and Modesto," Dambacher said. "There are so many things that are unanswered." As for development fees, Dambacher dismissed the $20 million worth of fees and off-site improvements as minor compared to the value of the project. The development agreement calls for phasing new homes over 12 years and it ties the provision of certain improvements and commercial construction to the number of building permits. Housing is proposed to be a mix of single-family and shared-wall development that has yet to be determined. Houses are proposed to be in clusters so that 45% of the 1,105 acres will be open space, parks or golf course, said Daters, of Tuolumne Investors. Half the homes will be restricted to seniors (age 55 and up), which proponents contend will reduce traffic. But Dambacher said the project is simply too large. "I don't have a problem with them putting 500 homes on that 1,000 acres, but not 1,500." Building that size community, including the proposed commercial component, will only increase pressure to develop the two miles of lightly developed real estate between Mountain Springs and Sonora, he argued. "Don't build two cities right next to each other," Dambacher said. Although Mountain Springs is similar to successful golf course retirement developments elsewhere, Wilbanks said it is more self-contained than most. The planned commercial center will have enough space for a small market, other retail shops and some professional offices. Plus, sidewalks and pathways will encourage walking, he said. County officials are excited about the conference center and 200-room hotel, which is large for Tuolumne County. Contacts: Bev Shane, Tuolumne County Community Development Department, (209) 533-5633. Kim Daters, Tuolumne Investors, (209) 532-2354. John Wilbanks, RRM Design Group, (209) 847-1794. Voters Choice on Mountain Springs website: www.voteonmountainsprings.org

Three bills intended to create a tighter link between land use planning and water supply topped the land use measures approved by the state Legislature this year. Before adjourning on September 14, lawmakers also approved a number of housing measures, although a highly controversial bill that would have put teeth into the housing element law was put on hold until next year. The Legislature passed a bill that allows redevelopment agencies to extend their life spans under certain conditions; however, the Department of Finance is urging the governor to veto it. In addition, the Legislature passed a bill introduced late in the session designed to cut back on the use of "certificates of compliance" by landowners to claim that large ranches were subdivided into smaller parcels during the 19th century. The bill emerged out of the controversy over the Hearst Ranch's attempt to use certificates of compliance to raise the value of its San Luis Obispo County property. The Legislature did not approve school bonds despite proposals for as much as $27 billion in new school spending; however a $2.6 billion park bond for the March 2002 ballot did pass. Few natural resources measures advanced during the session, and lawmakers made no significant changes to the California Environmental Quality Act. Nearly two weeks after the session ended, Gov. Gray Davis still had not decided whether to sign or veto approximately 800 bills. A public feud at the end of the session between Davis and Senate President Pro Tem John Burton over a failed bailout of Southern California Edison appeared to make uncertain the fate of unrelated bills on the governor's desk. Davis spokesmen denied the conflict would affect the governor's decisions, but observers said the bad blood between the fellow Democrats could spill over to other arenas. The Legislature approved three important water bills: SB 221 (Kuehl), SB 610 (Costa) and SB 672 (Machado). The net effect is to strengthen the connection between water supply and land use planning. The Kuehl bill requires proof of water availability at the tentative map stage; the Costa bill encourages long-term water planning; the Machado bill integrates regional and state needs and encourages exploitation of new technologies. Under SB 221, a water provider or local government must make the finding, based on substantial evidence, that adequate water is available for a project without putting the existing community at risk, explained Randele Kanouse, a lobbyist for East Bay Municipal Utility District. If there is no water agency, or if the water agency fails to comply, the local government must make the finding. The mandate applies only to subdivisions of at least 500 units, and it exempts some infill and low-income housing projects. If inadequate water is available, the bill expressly allows a developer to work with a water district, city or county to pursue new supplies — a provision that Kanouse called an "invitation for a developer to bring his checkbook." This additional supply could be in the form of new water development, water transfers, conservation retrofits, recycling technology, desalination plants, and other things. If a developer intends to rely on groundwater, the local water provider must evaluate the developer's groundwater rights. Kanouse, who has lobbied for such a bill for years, called SB 221 a major advance in linking land use planning with water supplies. After appearing to have died for the year, the bill returned to life in August, partly because development interests dropped their opposition, he said. "I really do believe … that a set of clear rules is better for them than dealing with the courts," Kanouse said. "This helps them minimize the risk of getting sued late in the planning stages on a half-billion-dollar project and losing two or three years in getting houses built." California Building Industry Association representatives did not return phone calls regarding the water bills. DeAnn Baker, a lobbyist for the California State Association of Counties, said her organization dropped its opposition to SB 221 when Kuehl eliminated language that essentially gave water districts veto power over developments. As finally passed, the bill allows cities and counties to approve tentative maps on the condition that adequate water becomes available — even if a water agency has said no. The bill walks a fine line between insisting on water planning and maintaining local governments' discretion, she said. The Costa bill, SB 610, is intended to tighten legislation from 1995 (SB 901). The earlier bill called for local governments to provide a water supply assessment in the environmental impact report for projects of at least 500 units. However, local governments and water districts have found loopholes or ignored the bill in almost every instance. The bill attempts to close the loopholes and make clear the need to have a valid Urban Water Management Plan to addresses provision of water for proposed large developments. The Association of California Water Agencies opposed both SB 221 and SB 610. Representatives did not return phone calls, but a letter from AWCA to lawmakers said, "We believe the failure to implement SB 901 results from a fundamental disconnection between CEQA and the SB 901 process. We do not believe SB 610 solves this problem, and we have serious doubts about the ability of DWR to prepare meaningful and timely water supply availability assessments for local development projects." Other legislation Lawmakers approved a comprehensive bill that addresses extension of redevelopment project areas. Senate Bill 211 (Torlakson) allows redevelopment agencies with projects areas created before 1994 to continue doing business for an additional 10 years. To be eligible for the extension, an agency cannot have "excess surplus funds," it must have a state-approved housing element and it must make a finding that significant blight remains. Under the extension, the agency must set aside 30% of tax increment revenue for low- and very low-income housing, as compared with the usual requirement of 20% for low- and moderate-income housing. The measure allows state agencies, counties and special districts to ask the attorney general to review redevelopment agency requests for extensions. Under current law, the majority of the state's redevelopment project areas cannot issue new debt after 2004, and their redevelopment plans sunset in 2009. The Department of Finance opposes the bill because of the costs of reviewing proposed extensions and the loss of future revenue. The agency's opposition made a veto a strong possibility, and some insiders were giving the bill only a 50% chance of surviving. A bill that came about during the last three weeks of the session generated as much attention as any land use measure this year. Senate Bill 497 (Sher) amends the lot line exemption within the Subdivision Map Act. The bill prohibits landowners from using certificates of compliance to reconfigure old subdivisions of at least five parcels. The key language was added after the Hearst Corporation revealed that it would seek certificates of compliance for 279 parcels on the Hearst Ranch in San Luis Obispo County, greatly increasing the land's value — and the potential cost to the state or nonprofit organizations that want to prevent development. The parcels were apparently created on the 80,000-acre ranch in 1852. Real estate, development and forestry interests strongly fought this bill, while cities, counties, the California Chapter of the American Planning Association and a number of environmental groups supported SB 497. A park bond was the second-to-last bill approved by lawmakers. Assembly Bill 1602 (Keeley) is a $2.6 billion park and natural resources bond. The largest pieces of the money would be allocated for neighborhood, community and regional parks ($832.5 million); state land conservancies ($445 million); the Wildlife Conservation Board ($300 million); cleaning up beaches and waterways ($300 million); acquiring and restoring historical resources ($267.5 million); and state parks ($225 million). Voters would decide the measure in March 2002. However, there were indications this bill might fall victim to the Davis-Burton feud, as Burton was a principle co-author. Housing was one of the few land use issues that received consistent lawmaker attention despite the electricity mess, state budget problems and redistricting. Marc Brown, of the California Housing Law Project, said that 2001 was a good year for housing advocates at the Capitol. Seven bills backed by his organization made it to the governor's desk (see list for details). Among those measures was the Torlakson redevelopment bill, which advocates say could provide up to $1 billion for low and very-low income housing. Not this year One housing bill that stalled was SB 910 (Dunn), a measure that sought to enforce the housing element law by withholding transportation funds from cities and counties that lack a housing element approved by the Department of Housing and Community Department. A working group has already begun meeting to discuss housing element issues before the Legislature reconvenes in January. However, Dunn has vowed to revive the bill and has made clear he thinks local governments should be penalized for not planning for their fair share of affordable housing. Baker, of CSAC, spent a great deal of time fighting the bill, which, she said, treats housing as if it existed in a vacuum. The bill ignores lack of infrastructure, air quality problems, and the notion that building residences in unincorporated areas often violates "smart growth" principles, she argued. Bills that addressed large-scale planning fared poorly. Assembly Bill 857 (Wiggins) and SB 741 (Sher) passed in intent form only and are headed for a conference committee. The Wiggins bill calls for the Office of Planning and Research to prepare a state comprehensive plan by 2003, while the Sher bill addressed details of what should appear in the governor's five-year infrastructure plan that is required as of 2002.

Everybody who watches old movies knows this story line: A girl from a rich family falls in love with a boy from the poor side of town. It goes without saying that the parents of the rich girl are snobs, and they offer the boy a thick wad of cash to go away. But his heart is pure, and he spurns the dough. Boy and girl subsequently elope amid the sound of swelling music. There can be a variant of the plot, however. In this version, the young man takes the money and hits the pavement. Maybe I've been spending too much time lately watching Turner Classic Movies on cable, but this story line sure reminds me of the negotiations between the City of Tustin in Orange County and a pair of school districts in neighboring Santa Ana. In this version of the plot, Tustin does not want Santa Ana to build a high school on the former Tustin Marine Corps Air Station, and is willing to contribute $38 million in cash to make the Santa Ana school districts go away. Like the poor boy in the movies, Santa Ana schools at first spurn the offer indignantly, insisting they have a legitimate claim to the land. But Tustin's rich buyout offer also has its attractions, and the school district is now considering a deal consisting of a little bit of land and a good deal of cash. A former Marine helicopter base built by the Navy during World War II, the 1,500-acre Tustin base was pegged for closure in 1992; it eventually closed its gates in 1998. The base is surrounded by the City of Tustin, which became the sole base reuse authority in 1993. Under the McKinney Act, which has since been amended, public agencies and certain community organizations had first pick of military-base land. In 1993, two Santa Ana School districts — Rancho Santiago Community College and Santa Ana Unified — requested 75 to 100 acres of the base to build new classrooms ranging from kindergarten to community college. Densely developed Santa Ana needs to build at least four new high schools throughout the district but lacks the large parcels needed for school construction. Currently, 40% of Santa Ana's 60,000 schoolchildren are in temporary classrooms, and many schools lack playing fields and other basic amenities. The U.S. Department of Education approved the request at the time, and has endorsed the decision several times since. While Tustin's vision for the former military base does not rule out school construction, the city is focussed on creating a high-end residential community. It is hard not to interpret the city's proposed land use map as an attempt to replicate the bucolic Orange County suburbia of the 1960s and '70s. The city intends to entitle the site for 3,000 new dwelling units, including 175 acres of high-end "golf villages," plus 9 million square feet of new commercial space, with schools, parks and open space. The same plan locates a new community college campus on the "Learning Village." Tustin's plan, however, gives the two Santa Ana school districts only 37 acres between them— less than the 40 acres Santa Ana deems necessary for one high school — in the northern end of the Learning Village. "Many people wanted land on the base, and nobody got everything of what they wanted," says a city official. The school districts, however, got some bonuses: Environmental tests revealed that the 37-acre site was badly contaminated and likely ill-suited for school construction. Under a law passed in the wake of the Belmont High School scandal in downtown Los Angeles, the state Department of Toxic Substance Control must certify all school construction sites, and will approve only environmentally pristine sites. (In many military bases, badly contaminated land is "encapsulated" with layers of soil or asphalt, and limited to industrial use.) The two school districts accused Tustin of trying to thwart school construction out of racism, and filed a Title VI discrimination lawsuit against the city earlier this year. A city spokeswoman dismissed the accusations as "completely offensive, groundless and baseless." That may be true, but it remains the case that Tustin has gone to extraordinary lengths to prevent the construction of a new high school on the base. Tustin and Santa Ana are neighbors but, in fact, are very different places in ethnic make-up. Santa Ana is a Latino enclave, and the city's school districts are 98% Latino, compared with about 43% in Tustin. Tustin and the school districts began secret meetings in November 2000 to work out a compromise in which the school districts would settle for less than 100 acres in exchange for money from land sales on the base. The school districts apparently did not like the deal's terms, and the arrangement appeared on the verge of falling through. In August, Gov. Gray Davis signed AB 212 (Correa),which banned all development on the base until Tustin gives 100 acres to the Santa Ana districts — or until the parties come up with their own deal. Since then, the city and the school districts have returned to the negotiating table. In the latest version of the deal, the school districts get 37 acres of clean land, while the city will provide the first $20 million in sales proceeds to materialize at the base, and another $18 million from the sale of residential property. The school districts will then take the proceeds and buy land for a high school inside Santa Ana. The deal has a final stumbling block: The school districts have requested that Tustin provide an alternative clean site for schools if the promised clean site also turns out to be tainted. Nonetheless, the deal seems closer to a handshake than ever before. While it is nice that Tustin and the school districts appear close to an agreement, the real question is why Tustin has insisted on going through this exercise in avoidance. Even if we exonerate the community from the charge of racism, it does seem inappropriate for the city to thwart an essential community use like a school. Additionally, the financial deal seems overly elaborate, expensive and, arguably, a waste of time when a simple solution is available. What's most unfortunate is that the entire controversy has created an atmosphere of mutual distrust between neighboring cities. While the parents may not care for the young man, it would be easier to let the young lovers run off together, and save the go-away money for a better purpose.

An appellate court has ordered the City of Concord's Rent Review Board to reconsider a request for rent increases filed by the owner of two mobile home parks. The case deals with the base year rental rates. The owner of the Diablo Mobile Lodge and the Adobe Mobile Lodge argued that its base year rates were so low that the parks lost money. The city's Rent Review Board disagreed. Contra Costa Superior Court Judge Barbara Zuniga ruled for the city, but the First District Court of Appeal overturned the lower court. The court remanded the case to the Rent Review Board for further consideration. The appellate panel ruled that "unique and extraordinary circumstances," including artificially low rents charged by the previous owner and a temporary rent increase moratorium imposed by the city, force the city to reconsider base rates. The case is Concord Communities, L.P. v. City of Concord, Nos. A091354, A091361, 01 C.D.O.S. 7748. It was filed on August 31, 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. AB 1419 (Aroner). Exempts from CEQA the development in San Francisco of a temporary bus terminal for the Alameda-Contra Costa Transit District. AB 1532 (Pavley). Requires a lead agency to call at least one scoping meeting for a project of statewide, regional or area-wide significance. SB 244 (Speier). Extends the public review period to 120 days for the draft EIR on the San Francisco International Airport expansion. General Plans AB 1367 (Wiggins). Establishes a meet-and-confer process between school districts and local governments to address long-range school-siting plans. AB 1553 (Keeley). Requires the Office of Planning and Research to include environmental justice matters in its general plan guidelines. SB 520 (Chesbro). Requires general plan housing elements to consider the needs of disabled people. 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 June 30, 2003. 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 the 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. 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. 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. Also: SB 1209 (Romero). Enables the Authority's power offer tax-exempt revenue bonds for construction of faculty housing owned by private colleges. 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. 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. 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. Gov. Davis vetoed a similar bill last year. 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. AB 134 (Kelley). Allows the Castaic Lake Water Agency, which sells water wholesale, to provide retail water service to a specific area. 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. 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 the governor. (See Deals, Page 12.) 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. 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 require that housing units provided by agencies remain affordable for up to 55 years. AB 1567 (Runner). Allows the Lancaster Redevelopment Agency to satisfy the inclusionary housing requirement by purchasing long-term affordability covenants on mobile home parks. 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. 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. AB 330 (Reyes). Allows cities that annex land covered by a Williamson Act contract to avoid Williamson Act restrictions on development. Vetoed by the 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. The governor vetoed a similar bill last year. 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. 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. SB 975 (Alarcon). Extends prevailing wage requirements to developments that receive subsidies of almost any sort, including fee waivers and reimbursements.

Like many types of affordable housing, farmworker housing has received a substantial boost during the last 15 months thanks to an unprecedented level of state spending. However, the picture for California's agricultural workers is not all bright because the state cash has arrived after many grower-provided housing units have closed. And local opposition to farmworker housing persists, even in communities that are primarily agricultural. For the 2000-01 fiscal year, the state earmarked $46 million for construction and rehabilitation of farmworker housing — about 10 times more than had ever been budgeted in a single year. Lawmakers also set a baseline of $18 million for future years, although that amount was reduced to $13.9 million in this year's adopted budget. The state did allocate $9.6 million to continue the process of rebuilding all 26 state-owned, seasonal migrant labor camps. Nonprofit agencies and local housing authorities are thankful to receive the money, but everyone involved says that more funding — and more funding sources —are required. "The need is so great out there," said Pat Dyas, manager of the Joe Serna Jr. Farmworker Housing Grant Program at the Department of Housing and Community Development. "We're doing everything that we can and it's great that we've got more money … but it's really just a drop in the bucket." Several factors hit farmworkers where they live. When the state began inspecting farmworker housing during the 1970s, some growers closed their labor camps rather than bring them up to code, said Peter Carey, executive director of Self-Help Enterprises in Visalia. A study released earlier this year supports Carey's observation. When asked about factors that discourage farmers from providing employee housing, about 70% of farmers who have closed their employee facilities cited "government requirements." That was an even greater factor than the cost of development. (The survey, "Operation of Farm Labor Housing in California," was conducted by the California Coalition for Rural Housing, the U.S. Department of Agriculture, the state Department of Housing and Community Development, and University of California, Davis.) At the same time growers were shuttering employee housing units, farmworkers were increasingly signing on with labor contractors. Thus, field hand and packing house employees lost their direct connection to farm owners and managers. During most of the 1990s, the provision of farmworker housing disappeared from the political radar screen. However, the election of Cruz Bustamante as lieutenant governor in 1998 and the flexing of muscle by the Legislature's growing Latino Caucus have helped return attention to the issue. In 1999, the Legislature approved a bill requiring local housing elements to identify adequate sites for farmworker housing. Additionally, some farmers, especially in the wine growing regions of Napa and Sonoma counties, have taken a more active role in providing shelter for their workers. All of these political and labor developments occurred while farmworkers became less migratory. Solid demographic information on California farmworkers is scant, but many experts say the age of migrant families has largely ended. Now, most families settle into communities. Migrant workers who chase the harvest are males in their teens through early 30s who are either single or who support a family in California, Mexico or Central America. Wine country workers In Sonoma County, growers by right can build farmworker housing on agricultural parcels of at least 10 acres. Projects that meet basic criteria do not require use permits and are supposed to receive administrative approval within one week, according to planners. The growers must pay for building permits, but the county waives all impact fees. This streamlined system has eliminated growers' excuses, said Bob Anderson, of the United Winegrowers of Sonoma County. Growers have built about 25 projects under these rules, according to Anderson. Some of the residences are essentially bunkhouses that accommodate from 18 to 38 single men apiece. The structures appear to be large barns, often well off the road and surrounded by vineyards. Growers fund the projects and charge residents only for utilities and laundry facilities. One grower has built four-plexes for families. The advantage of offering such accommodations is that labor crews remain in place for longer periods, Anderson said. The typical resident of these grower-provided accommodations stays for 10 months. In neighboring Napa County, winemakers have proposed creation of an assessment district to fund farmworker housing. Assembly Bill 1550 by Assemblywoman Patricia Wiggins (D-Santa Rosa) would allow the Napa County Board of Supervisors to establish a county service area to acquire, construct and maintain farmworker housing. The proposal allows the county to tax landowners up to $10 per acre of vineyard, so long as two-thirds of growers approve of the assessment. The proposal is the result of farmworker housing shortages during the late summer and early fall harvest, said Jeri Hansen, of the Napa Valley Vintners Association. The county Housing Authority operates three labor facilities that accommodate a total of 136 workers. But the vintners group estimates the county will need an additional 200 to 300 beds at harvest time within 5 years, Hansen said. The shortage is already so severe that during last year's grape picking season, the Housing Authority set up four-man tents to accommodate migrant workers, said Peter Dreier, agency executive director. This year, the Housing Authority has set up 10 four-man yurts — sturdy circular tents with vinyl floors. Vintners and grape-growers purchased the yurts, which have been erected on vacant county-owned land next to a public works yard outside Yountville. The Housing Authority charges $10 per day and provides three meals a day. The makeshift village includes two common yurts for meals and gatherings, portable toilets and showers, and a septic tank and leachfield — enough to meet Title 25 requirements for alternative housing, according to Dreier. Still, he said, "we see this as part of a temporary solution. What we like about them is that they can be put up at a location, then taken down and stored when not needed." The Vintners Association has subsidized labor camp operations through voluntary assessments and through partial proceeds from an annual wine auction. Not everyone has been willing to pay their fair share, Hansen said, although the recalcitrant growers have not opposed AB 1550 thus far. "It's a very targeted solution for Napa Valley," Hansen said, suggesting a CSA would not work everywhere. "Everyone needs to figure out there own way of meeting this challenge." State funding arrives For many years, the state budget contained $2 million to $4 million for farmworker housing. That amount shot to $46 million during the last fiscal year, when the overall state housing budget increased ninefold to about $570 million. As of late August, the state had granted $34.5 million of the $46 million to local housing authorities and nonprofit organizations to pay for developer or rehabilitation of 1,734 units, according to Dyas, the program manager. The state has funded projects in Imperial, San Diego, Riverside, Ventura, Santa Barbara, Kern, Tulare, Kings, Fresno, Madera, San Joaquin, Monterey, Santa Clara and Lake counties. A wide variety of projects — construction of rental units, assistance with self-help homeownership projects, refurbishment of existing rentals — is eligible for funding. All grants require a match of at least 100%. The farm labor housing survey suggested that rehabilitation is a major need. The survey of 1,100 farmers and ranchers found that the average farmworker housing unit was built in 1966 and was put into service as farmworker housing more than 10 years later. State housing officials also have commissioned work on a broad farmworker housing plan, but the project is just beginning. Robert Wiener, executive director of the California Coalition for Rural Housing, said that rounding up more money remains his organization's top priority. "We have decades of accumulated need. Farmworkers are among the worst-housed and lowest-paid populations in the state," Wiener said. The farm labor housing survey found that only one-third of farmers in the state provide employee housing. Only 3% of those who do not have housing plan to offer it in the future, while 11% of those who provide shelter intend to reduce or eliminate units. "Most farmers/ranchers, while observing inadequate local supplies of housing, have no interest in owning or managing the housing themselves, preferring instead public, publicly-supported or private housing providers in those roles," the survey reported. Getting it built Besides a shortage of funding, local political opposition can stall or kill proposals to build homes for agricultural laborers. Proposals often generate nasty class and ethnic tensions. And some local governments — which see all low-cost housing as a direct money loser — have been less than receptive to nonprofit developers. Local governments' approaches to farmworker housing are mixed. That the issue remains vexing might be evidenced by the fact that few local planners contacted for this story were willing to comment. Some local governments, such as Sonoma County, have passed ordinances to accommodate development; other local governments have not addressed the issue at all. Glenn County, for example, has no specific policies for farmworker housing, said Senior Planner Christie Leighton. Yet Glenn County's $260-million-a-year agricultural industry is the economic backbone for the rural county 80 miles north of Sacramento. In 1999, the Legislature passed AB 1505 (Ducheny), which requires a city or county general plan to identify adequate sites with public services and facilities for development of farmworker housing to meet the city or county's regional share. Because the law has been in effect less than two years — and jurisdictions in the most heavily farmed regions have not updated their housing elements — it is a bit early to tell how effective the law will be. Some housing advocates believe the law could provide leverage for dealing with stubborn cities and counties. "The housing element is a nice tool," Wiener added, "but it doesn't change attitudes." Those attitudes are a persistent hurdle even for a group with an extensive track record, such as Visalia's Self-Help Enterprises, which will break ground on its 5,000th unit this year. "We continually run into the same obstacles and the severe opposition when we try to build," said Carey, of Self-Help Enterprises. Patricia Harrison, a professor at UC Davis's design program and a low-income housing researcher, recommended working with residents and local officials before fighting them. "What you have to do is go in with a design that meets the community norms. And then you have to go in and listen to people. You have to work with the community's concerns," Harrison said. If adjustments such as more driveways, or additional landscaping helps gain local resident's support, then project developers should make the changes, she said. Harrison recently designed a manufactured home project for 24 single males in the Colusa County community of Arbuckle. The project met strong local opposition, but her client, a local farmer, was willing to tinker with the design to offset some concerns. Residents became more receptive as construction continued because they saw the project did not appear out of place, she said. Carey said that Self-Help Enterprises of Visalia does not build projects that people oppose because future residents would have too great a burden. He agrees that designing a project that looks like any other development is essential. When Self-Help Enterprises builds multi-family projects — which are targeted toward farm laborers — it always builds at a lower density than permitted to curry favor with locals, Carey added. The agency also insists on having a resident manager and a community meeting room for its multi-family developments. Challenges remain The fact that state funding for farmworker housing dropped 25% below a baseline established one year earlier demonstrates a systemic instability that makes planning difficult. Shelter for single-males remains problematic. Harrison, of UC, focuses on housing for single males, but most nonprofit developers emphasize family homes. "The challenge out there," said Carey, "is still the single male population, and I'm not sure how to deal with that." A state income tax credit for development of farmworker has attracted little interest since its approval in the mid-90s, said Marc Brown, of California Housing Law Project. Advocates support AB 1160 (Florez), which makes technical changes intended to expand the tax credit program. Contacts: Peter Carey, Self-Help Enterprises, (559) 651-1000. Peter Dreier, Napa Valley Housing Authority, (707) 257-9547. Pat Dyas, Department of Housing and Community Development, (916) 327-0942. Patricia Harrison, UC Davis School of Design, (530) 752-6411. Jeri Hansen, Napa Valley Vintners Association, (707) 968-4206. Robert Wiener, California Coalition for Rural Housing, (916) 443-4448.

In the session that ended Sept. 14, the California Legislature has passed bills that would strengthen the connection between water supply and land use planning, place restrictions on how long redevelopment agencies can keep operating, and shut down the "certificates of compliance" loophole in the Subdivision Map Act being used by Hearst Ranch and others. The question of whether Gov. Gray Davis will sign the subdivision and redevelopment bills in particular is sparking keen interest in land-use circles. Overall, it was a light year for land use bills, with only about two dozen other bills being passed before the Legislature closed its regular session for the year in the early morning of September 15. The Legislature did not approve school bonds, but it did decide to place a $2.6 billion park bond on the March 2002 ballot. Lawmakers did not make any significant changes to the California Environmental Quality Act. The top 10 land use bills approved by the California Legislature during 2001: • SB 221 (Kuehl) requires that cities or counties obtain proof that a sufficient water supply is available for any subdivision of at least 500 lots. The bill specifies that if groundwater is to serve as a subdivision's source, a public water system must evaluate the landowners' right to extract the water. The bill exempts redevelopment and low-income housing projects. The measure is a companion to SB 610 (Costa) and SB 672 (Machado). The Costa bill attempts to close loopholes in SB 901 from 1995, which required local governments to assess whether water was available for projects of 500 or more units. The Machado bill orders the Department of Water Resources to report on water projects in each hydrologic region of the state and to pursue alternative water projects, such as desalination, water recycling, new treatment facilities. • SB 497 (Sher) amends the lot line exemption within the Subdivision Map Act. The bill prohibits landowners from using certificates of compliance to reconfigure old subdivisions of at least five parcels. The key language in the bill was added in August after the Hearst Corp. revealed that it would seek certificates of compliance for 279 parcels on the Hearst Ranch in San Luis Obispo County, greatly increasing the land's value. Real estate, development and forestry interests strongly fought the bill, which faces an uncertain fate on the governor's desk. • SB 211 (Torlakson) allows redevelopment agencies with project areas that will expire to continue doing business for an additional 10 years. To be eligible for the extension, an agency cannot have surplus funds, it must have a state-approved housing element, and it must make a finding that significant blight remains. Under the extension, the agency must set aside 30% of tax increment revenue for low- and very low-income housing (as compared with the usual requirement of 20% for low- and moderate-income housing), and it allows state agencies, counties and special districts to ask the attorney general to review agency requests for extensions. Under current law, the majority of the state's redevelopment project areas cannot issue new debt after 2004, and the redevelopment plans sunset in 2009. The Department of Finance is opposed to bill because of processing costs and the loss of future revenue. • AB 637 (Lowenthall) 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 require that housing units provided by agencies remain affordable for up to 55 years. • 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. Local governments oppose the bill, saying the measure is too broad and unnecessary. Governor Davis vetoed a similar bill last year. • AB 369 (Dutra) allows courts to award attorneys' fees against local governments that that violate the anti-NIMBY law. Developers or housing advocates would be eligible for receiving attorneys' fees after winning a lawsuit. The governor has already signed the bill. • AB 1367 (Wiggins) establishes a meet-and-confer process between school districts and the cities or counties in which the district is located. The bill requires school district to provide local government with at least 45 days notice before adopting long-range development plans, and allows either side to call a meeting to discuss the plans. • 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. The governor vetoed a similar bill last year. • 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. • AB 1602 (Keeley) is a $2.6 billion park and natural resources bond. About half the money would fund parks and museums, while state land conservancies would receive $445 million. The remaining money would pay for restoring lakes, rivers and wetlands, protecting farmland and reducing air pollution in state parks. If Gov. Davis signs the bill, voters would decide on the bond measure in March 2002.

The Ninth U.S. Circuit Court of Appeals has rejected federal arguments for dropping a desert lizard from consideration for Endangered Species Act protection. In its ruling, the unanimous three-judge panel encourages a broader, more flexible reading of the act than the Clinton administration had offered. The case turned on the interpretation of the phrase "in danger of extinction throughout ... a significant portion of its range." Such animals and plants are to receive ESA protection. The court rejected both the secretary of the Interior's interpretation, and that of environmental groups who brought the lawsuit. "We conclude, consistently with the secretary's historical practice, that a species can be extinct 'throughout ... a significant portion of its range' if there are major geographical areas in which it is no longer viable but once was," Judge Marsha Berzon wrote for the court. The secretary has a "wide degree of discretion" but must at least explain her conclusions. The critter in question is the flat-tailed horned lizard, whose habitat includes parts of eastern San Diego and Imperial counties, southwestern Arizona and northwestern Mexico. Creation of the Salton Sea, farming of desert land and urban development around El Centro and Yuma, Arizona, have eliminated about one-third of the lizard's historic range. The Interior secretary began reviewing the lizard's status in 1982 but had made no decision as of April 1995, when Congress withdrew much of the Interior Department's ESA funding. This virtual moratorium on ESA listings remained in effect until April 1996, when then-president Clinton restarted the listing process. Still, Interior Secretary Bruce Babbitt refused to make a decision on the flat-tailed horned lizard. In May 1997, a federal district court in Arizona ordered Babbitt to issue a decision within 60 days. In July 1997, Babbitt withdrew an earlier proposal to list the lizard as threatened. He found that data did not conclusively show significant population declines, that some threats to habitat had diminished, and that a new conservation agreement among federal, California and Arizona agencies would aid the lizard. Defenders of Wildlife and other environmental groups sued Babbitt in 1998. Southern California District Court Judge Thomas Whelan ruled for the administration. Environmentalists appealed to the Ninth Circuit, where they found a more receptive audience. The appellate court ruled that Babbitt relied on an improper standard to make his decision, and "failed to consider important factors relevant to the listing process." The Interior Department argued that although the lizard faced threats on private property, adequate habitat existed on public land to ensure the species' viability. The agency further pointed to a new conservation agreement among federal, California and Arizona agencies that added protections to lizard's public land habitat. Conversely, environmentalists argued that if private land constituted a significant portion of the lizard's range, and its survival on that land were threatened, the agency must designate the lizard for ESA protection. The court held that the agency's approach meant that a species would qualify for protection only if it were in danger of extinction everywhere. However, the ESA separately addresses species that are in danger of extinction in all their historic range. " he secretary's interpretation of 'a significant portion of its range' has the effect of rendering the phrase superfluous. Such a redundant reading of a significant statutory phrase is unacceptable," Berzon wrote. Environmentalists pointed to evidence that the lizard is projected to lose 82% of its habitat, and species that have lost smaller amounts of habitat have received federal protection. But the court held that no predetermined percentage of habitat loss qualifies a species for ESA listing. Instead, the court delved into the legislative history, comparing the ESA with two earlier conservation laws. The phrase "extinction throughout ... a significant portion of its range" appeared for the first time in the Endangered Species Act, and not in earlier laws. Congress added this new language to encourage cooperation between federal and state agencies and to allow the Secretary more flexibility, Berzon wrote. She pointed to congressional examination of the American alligator. The animal's historic range stretched from the Mississippi Delta in Louisiana to the Florida Everglades. By 1973, the alligator had become very rare in portions of Florida, yet it was overabundant in Louisiana. The ESA was intended to allow the Interior Department to protect the alligator where it was threatened with extinction, while not extending regulations to areas where the animal thrived. Babbitt should have used this approach when dealing with the flat-tailed horned lizard, the court said. "First, the habitat on private land may constitute 'a significant portion of its range' demanding enhanced protections not required on public lands; alternatively, the inverse may be true. Second, and perhaps more persuasively given this interpretation of the statute, the lizard may face unique threats in either California or Arizona, or in major subportions of either state," Berzon wrote. Babbitt also failed to account for problems with the conservation agreement and how the agreement would mitigate threats to the lizard, the court held. The Case: Defenders of Wildlife, v. Norton, Nos. 99-56362, 00-55496, 01 C.D.O.S. 6429, 2001 DJDAR 7927. Filed July 31, 2001. The Lawyers: For Defenders: Neil Levine, Earthlaw, (303) 871-6034. For Norton: Robert Oakley and Andrew Mergen, Department of Justice, (202) 514-2000.

A lawsuit challenging a Southern California water agency's purchase of a private water company has been reinstated by the Second District Court of Appeal. The unanimous three-judge appellate panel ruled that Los Angeles Superior Court Judge Dzintra Janavs did not consider all the questions before her when she ruled that the Castaic Lake Water Agency could acquire the Santa Clarita Water Company. If the water company became the alter ego of the public water agency, the transaction would violate state law, the court held. Because the lower court did not decide that question, the appellate panel returned the lawsuit for further proceedings. The Legislature created the Castaic Lake Water Agency to acquire water and water rights, and to provide that water at wholesale only. The agency sells water to four utilities in the Los Angeles County's fast-growing Santa Clarita Valley, including the sight of the proposed 21,000-home Newhall Ranch subdivision. The provision of water to Newhall Ranch is a central issue in ongoing litigation over the project. The Santa Clarita Water Company is the largest utility served by the Water Agency. The company has 21,000 customers, as well as rights to 15,000 acre feet of groundwater. On August 11, 1999, the Water Agency approved a retail service agreement with the company. Under Water Code § 12944.7, a wholesale water agency can sell water directly to consumers if the agency has a contract with a company that is subject to Public Utilities Commission (PUC) regulation. The Water Agency said it was following that law, which overrode the original act that created the Agency. The next day, the Water Agency filed a notice in court to condemn and acquire all outstanding stock in the Santa Clarita Water Company. On August 23, four residents from the Water Agency's territory filed suit on various grounds to halt the transaction. But the deal went forward anyway, and by September 3, the Water Agency had acquired all shares of the company for $63 million in cash. Afterward, the Water Agency wound up the company's business, dissolved the corporation, distributed the assets to the Agency, and accepted the resignation of three company directors and the secretary. When the residents who protested the transaction got a court hearing, they argued that the transaction merged the two entities into one, in violation of § 12944.7. They also contended that there was no longer a company subject to PUC regulation, so the retail service agreement approved in August no longer complied with § 12944.7. The Water Agency argued that the company is subject to PUC regulation, but denied that § 12944.7 requires the company to remain subject to PUC control during the life of the retail service contract. Judge Janavs ruled that § 12944.7 overrode the legislative act that created the Water Agency. The appellate panel concurred with Janavs regarding the applicability of § 12944.7. The appellate panel also said the Water Agency had the authority to take through eminent domain "any facility reasonably required for the importation and transmission of water." However, the appellate court ruled that the Water Code requires an arm's length contract between two separate entities. " o comply with § 12944.7, whenever a wholesaler agency sells water directly to the consumer, it must be doing so pursuant to a contract with a water company that exists as an entity, be it a wholly owned subsidiary or otherwise, independent from the wholesaler agency," Justice Richard Aldrich wrote. "For these same reasons, we also conclude that a water company, with whom the wholesaler agency contracts, must remain subject to PUC regulation throughout the life of the contract. The Agency argued that there is no 'continuing obligation to be regulated by the PUC' once the transaction is closed. We reject this 'nanosecond' argument because it renders § 12944.7's requirement of PUC regulation pointless and surplusage." Because the trial court did not address whether the company continues to exist as a separate entity subject to PUC regulation, the appellate court did not rule on the question. Instead, it directed the Superior Court to consider the issue. But the appellate court clearly had concerns. " f at any point the Agency actually merged with the Water Company or the Water Company became the alter ego of the Agency ... the Agency would no longer have a contract pursuant to § 12944.7 by which it could sell or deliver water at retail without violating its own enabling act, Aldrich wrote The Case: Jill Klajic v. Castaic Lake Water Agency, No. B137258, 01 C.D.O.S. 6194, 2001 DJDAR 7567. Filed July 20, 2001. The Lawyers: For Klajic: Jennifer Kilpatrick, (323) 852-1000. For the agency: Robert H. Clark, general counsel, (661) 297-9132.

A state appellate court has greatly reduced the amount of damages that San Diego County must pay to a landowner in an inverse condemnation case. The court reduced a jury's award of $646,000 by $187,000 and directed the trial court to reconsider other costs included in the award. The decision came in a Fourth District Court of Appeal, Division One, ruling that was only partially published. In 1988, Dana Ferrell purchased land in Lakeside, 90% of which was in a floodplain. Although the land was zoned for agricultural and residential uses, Ferrell planned to develop a construction material recycling center on the site. After Ferrell bought the property, his neighbor Reid Enniss began developing his own property by placing 800,000 cubic yards of fill dirt on the site to raise it above the floodplain. Enniss' construction increased the flow of water onto Ferrell's property. Enniss also did not grade his property according to approved plans and ended up grading the slope for a drainage channel on Ferrell's property. Ferrell then sued Enniss and the county. Enniss paid Ferrell $60,000 to drop the suit. But Ferrell's inverse condemnation claim against the county went to trial. The trial court found that the county was liable for approving and accepting for public use Enniss' drainage improvements that increased the flow of water onto Ferrell's property. However, a jury awarded Ferrell no damages. On appeal, the Fourth District ruled in a 1998 unpublished opinion that the jury should not have had the option of awarding zero damages, and the Fourth District sent the case back to the Superior Court. A second jury trial resulted in Ferrell winning an award of $646,000, including $189,000 for mitigation damages, $6,600 in ordinary costs, $1,890 in stipulated damages, $196,000 in prejudgment interest, and $252,000 for costs and expenses, including attorneys, appraisal and engineering fees. Ferrell appealed again, arguing that the trial court improperly excluded his appraisal expert and that he was due additional costs and attorney's fees under Code of Civil Procedure § 1036. The county also appealed, contending that the trial court should have granted its request for a "judgment notwithstanding verdict." The county also argued that the jury awarded Ferrell excessive prejudgment interest and excessive costs and attorneys fees. A unanimous three-judge appellate panel rejected Ferrell's appeal and accepted most of the county's arguments. In considering Ferrell's appeal, the court held that Superior Court Judge Thomas R. Murphy correctly rejected Ferrell's request for $12,200 in "costs, disbursements and expenses" for such things as mileage, postage, telephone charges, meals and parking. In an unpublished portion of the opinion, the appellate court ruled that Murphy properly excluded Ferrell's appraisal expert - and eliminated his fees - because the expert's opinion "was based on an improper factual assumption." Also in the unpublished part of the case, the court held that Ferrell's request for $17,000 in attorneys fees from the first trial was too late. In turning to the county's appeal, the court addressed the request for a "judgment notwithstanding the verdict" (JNOV). Most of this part of the ruling is in unpublished sections of the opinion. The jury had awarded Ferrell $189,000 for costs he incurred while unsuccessfully applying for a use permit to develop his construction material recycling plant. Ferrell said the legal, engineering and environmental specialists' costs were incurred while he tried to mitigate the damages caused by the county's inverse condemnation. But the appellate court said Ferrell's claim was bogus because he had intended to pursue the recycling facility all along. The use permit application would have allowed Ferrell to remedy the drainage problem created by Enniss, "but those features were merely incidental to the sole purpose of the application from its inception - to allow Ferrell to develop the property for use as a recycling center as he intended on, and even before, the date he brought the property," Justice Alex McDonald wrote in the unpublished part of the ruling. Because Ferrell did not prove that he suffered any economic loss or diminution of property value, the appellate court directed the trial court to award Ferrell $1 for nominal damages, plus the county's stipulated damages of $1,890. The appellate panel also directed to lower court to re-determine other costs and the prejudgment interest award. The Case: Dana K. Ferrell v. County of San Diego, No. D034864, 01 C.D.O.S. 5757, 2001 DJDAR 7029. Filed June 8, 2001, certified for partial publication July 9, 2001. The Lawyers: For Ferrell: Michael H. Fish, McKenna and Cuneo, (619) 595-8088. For the county, William A. Johnson Jr. and Timothy M. Barry, deputy county counsels, (619) 531-4847.

Everybody knows there are lots of lots in California. And there's always been lots of controversy about what you can do with your lots. But now there's lots of controversy about the more basic question of what is a lot and what is not. Jurisdictions all over the state are dealing with the question of how to handle old parcels that don't meet current standards. Increasingly, however, localities are facing big property owners who are asserting something a little different – the idea that big chunks of land they have always owned in a block were really subdivided in the 19th century. The so-called "magic subdivision" issue has been around for the past decade or so, but it's heated up again in the last couple of months, as the Hearst Corp. has moved forward with an effort to assert that the famous 80,000-acre Hearst Ranch in San Luis Obispo County is actually made up of 279 lots that were subdivided in 1852. Hearst isn't interested in developing the new lots; the company's development proposal is concentrated on a tiny portion of the ranch along the ocean at San Simeon Point. But by legally affirming the existence of the lots by obtaining a "certificate of compliance," the company will be able to get more money from land trusts and government agencies that might buy either conservation easements or the property itself. Nevertheless, the Hearst gambit has galvanized environmentalists and local governments – especially on the Central Coast – in a renewed effort to prevent the validation of newfound subdivisions, which cannot only increase the value of property but also allow landowners to evade the Subdivision Map Act under some circumstances. Many land speculators who acquire property and obtain post-hoc validation of a subdivision then maximize property value by using a lot-line adjustment – which is exempt from the Map Act so long as the number of number of lots does not increase. Hearst has not tried the lot-line adjustment idea yet. But the high-profile nature of the case has led environmentalists and local governments to attack the magic subdivision issue in Sacramento – even attempting to put some kind of brake on the process in this legislative session. The Hearst scheme is the latest twist on a very old game in California – and, indeed, in the United States: If you want to make money easily, buy some land, subdivide it, and sell it off. This is a pretty basic rule of land economics, especially in a desirable place like California. As a commodity, lots are no different than oranges. You can sell one at a higher per-unit cost than you can sell a dozen. So land speculators have always been highly motivated to subdivide their property into smaller lots in order to make money. Thus, it is not surprising that subdividing property has been a basic planning policy question in California for many decades. The question used to be: What do we do with old, substandard lots – those dating from 1910s or 1920s — that don't meet today's requirements for community-building? Now the question is: Do very old lots – those dating from the 19th century — even exist? This is a fundamental question for the future of California planning because there is a big difference between the people who own tiny, substandard lots they can't use and the people who own large pieces of property which they now assert were subdivided long ago. The first group of property owners is not very powerful – they are generally unsophisticated "little guys" unlikely to put much pressure on counties or the state to create change. But the second group of property owners is powerful. They're not all Hearsts, but they are generally old-line property owners with enough resources to make their case in court. At the center of this whole controversy is that complicated and often arcane law, the Subdivision Map Act – a law that requires every local government in the state to regulate the subdivision of land by private property owners. The Map Act is one of planners' biggest sticks in dealing with developers. It gives local governments power over what the law calls the "design" of subdivisions and the "improvements" associated with those subdivisions. In practical terms, it gives local government planners leverage to demand exactions from developers. But that was not the intent of the Map Act. Originally, the Map Act was designed as a consumer protection ordinance so that unsuspecting lot purchasers would be sure to wind up with property they could actually access and build on. All through the late 19th and early 20th Century, land speculators would simply subdivide property into small lots and sell it off – without setting aside property for roads or any other necessities of urban development. Often, neither subdivider nor buyer had ever seen the property before it was cut up and sold. If you want to see what this type of subdivision looks like on the ground, go to Clear Lake sometime. It's a vacation area where houses and lots are scattered willy-nilly across the landscape, often connected by informal, unpaved roads that technically trespass across somebody's property. It's often impossible to discern a logical pattern of subdivision. To the extent that the question of subdivided lots has been a policy issue in California, it has dealt with the question of antiquated lots and what to do about them. Some years ago, a report to the Senate Local Government Committee concluded that there were somewhere between 400,000 and 1 million "antiquated" lots in California that were undeveloped. The Hearst gambit, however, reminds us that there's another angle to the question of old subdivided lots – and that has to do with the question of whether subdivisions created before the Subdivision Map Act was first adopted in 1893 exist at all. Under the Subdivision Map Act, property owners can request local governments to issue "certificates of compliance" verifying that parcels met the legal requirements in place at the time the lot was created.Of course, it is still fuzzy what pre-1893 process for subdividing land should be considered legal. In many cases, property owners have argued that simply recording a plat map with the county is sufficient. Better still appears to be a federal patent establishing the lots. It is a federal patent from 1852 on which the Hearst Corp. is relying in attempting to split its ranch in 279 parcels. And once a property owner produces this kind of evidence, it is hard for the local government – or the Coastal Commission, in the case of coastal property such as Hearst Ranch – to say no. According to one recent Coastal Commission staff report, San Luis Obispo County has issued 363 certificates of compliance in the county's coastal zone during the last 20 years, and the Coastal Commission has a hard time simply tracking them all, much less reviewing them and putting restrictions on them. The Hearst Corp. appears to be using the "magic subdivision" approach as a way of establishing the highest possible property value. The company is negotiating with two national conservation groups about selling the conservation easements to them. For the conservation groups to buy the land, the land has to have a value – and that value is related to development potential, which, in turn, is related to the number of lots. Once the certificates of compliance are issued, Hearst Corp. will have an opportunity to employ yet another gambit to increase its property value by using the lot-line adjustment loophole in the Subdivision Map Act. Once it has established that its ranch is really 279 separate parcels, Hearst then could rearrange those parcels however it likes on the map – ensuring that they all have frontage along Highway 1 or the ocean, for example – to maximize their theoretical value. That would jack up the price that the conservation groups would eventually have to pay. It often seems as if we are in an "end game" situation in rural California. Large landowners who have held property for decades – sometimes centuries – are finally moving to dispose of their land, either into urban development or permanent conservation. Environmentalists and slow-growth activists often complain that big landowners sometimes feign a proposed development project (or, in the case of Hearst, development "potential") even when they intend all along to sell to the government or land conservancies. The result of this process obviously costs Californians a lot of money. This issue will move front and center in land conservation and development in California in the years ahead. Property owners have rights. Those include the right to get certificates of compliance, lot-line adjustments, and other legal means relating to subdivisions.