A state appellate court that ordered preparation of an environmental impact report on a Metropolitan Water Agency habitat conservation project has ruled that MWD cannot slice the project into smaller pieces and proceed without an EIR. The Fourth District Court of Appeal said MWD and Riverside County Superior Court Judge Gloria Trask — who issued a writ of mandate following the earlier Fourth District decision — misread the first ruling. "The effect of the trial court decision is to allow the entire project (with the single exception of mitigation credits for the take of certain state-listed species) to proceed without any environmental review whatsoever," Justice Thomas Hollenhorst wrote for the unanimous three-judge panel of the Fourth District, Division Two. Michelle Ouellette, attorney for the Riverside County Habitat Conservation Agency, the real party in interest, said the court appeared to be urging the sides to settle their dispute. "You don't publish something like this, without any precedential value, unless you're trying to send a message," Ouellette said. Lawyers for the Audubon Society could not be reached for comment. The MWD, the U.S. Fish & Wildlife Service, the state Department of Fish & Game, and the Riverside County Habitat Conservation Agency jointly prepared the Lake Mathews Multiple Species Habitat Conservation Plan and Natural Communities Conservation Plan. The plan — which is the "project" for CEQA purposes — covers 6,000 acres owned by MWD around Lake Mathews, and it creates a 5,110-acre multi-species reserve. The plan also is intended to serve as a basis for "incidental take" permits for six endangered species and dozens of target species. The reserve would act as a mitigation bank for MWD and for developers from all over Southern California. For the plan, MWD provided a detailed mitigated negative declaration. In 1999, the Fourth District ruled that the San Bernardino Valley Audubon Society had made a fair argument that the project would have a significant effect on endangered, threatened and other plant and animal species and, therefore, an EIR was required. The court said the plan provided a "blank check" for developers wanting to build on habitat for endangered species — even though state officials maintained that development projects that relied on the mitigation bank would need their own environmental reviews. San Bernardino Valley Audubon Society v. Metropolitan Water Dist., (1999) 71 Cal. App. 4th 382 (see CP&DR Legal Digest, May 1999). The appellate court then sent the case back to Judge Trask, who issued a peremptory writ of mandate ordering MWD to set aside the mitigated negative declaration. The writ also prevented the DFG from using the reserve to issue mitigation credits to offset the take of state-listed species. The Audubon Society then asked for reconsideration, arguing that MWD was going ahead with all parts of the project except the issuance of mitigation credits for taking rare species. Judge Trask stuck by the earlier writ, but she was again reversed by the Fourth District. On appeal, MWD argued that the mitigation banking was separate and distinct from other parts of the project. The agency contended that Public Resources Code § 21168.9 allowed Judge Trask to separate parts of the project and issue an order affecting only those specific project activities that are out of compliance with CEQA. But the Fourth District said no. The MWD could either prepare an EIR for the whole project, or abandon the project. And MWD could not argue severability on appeal, because Judge Trask did not use § 21168.9 as a basis for limiting her order. " he trial court did not consider whether the mitigation bank was severable, it did not consider whether severance would prejudice full compliance with CEQA requirements, and it did not find that the rest of the project was or was not in compliance with CEQA," Justice Hollenhorst wrote. The MWD "was us to make these findings for them … ." The Audubon Society argued that the project's 17 discretionary actions were based on the mitigated negative declaration, and the appellate court should block all discretionary actions based on the voided environmental document. But the Fourth District declined to take that route. "However," Hollenhorst wrote, "we do agree with Audubon that the primary defect in the trial court's judgment and peremptory writ is its failure to require CEQA compliance. In other words, the trial court invalidated only one part of the project, the issuance of mitigation credits for the take of certain state-listed species, without requiring the completion of an EIR for the project." "Despite our prior determination that a full EIR was required for the project, the trial court's judgment and writ did not specifically require CEQA compliance for the project," the court held. The court remanded the case back to Judge Trask. The Case: San Bernardino Valley Audubon Society v. Metropolitan Water District, No. E027043, 01 C.D.O.S. 4812, 2001 DJDAR 5839. Filed June 8, 2001. The Lawyers: For the Audubon Society: Raymond W. Johnson, Johnson & Sedlack, (909) 506-9925. For MWD: Norman Flette, deputy general counsel, (213) 217-6240, and John Clairday, deputy general counsel (213) 217-6314. For Riverside County Habitat Conservation Agency: Michelle Ouellette, Best, Best & Krieger, (909) 686-1450.

Commuter rail has a perception problem. If everybody wants to live near to a train, nobody wants to live directly on the line. Trains are dangerous, noisy, kick up dust and push down the price of homes bordering the rails — or so we believe. Fear and misunderstanding of the impacts of commuter rail, in fact, have led to some very volatile politics among homeowners, and that, in turn, has led to some unfortunate planning decisions. In Los Angeles, perhaps the world capital of misinformation about light rail, homeowners frightened in the 1980s by the advent of the Metro Rail subway system prevailed on U.S. Rep. Henry Waxman (D-Los Angeles) to insert language into an appropriations bill outlawing the construction of the train down Wilshire Boulevard, the city's most important business and cultural corridor. (The actual wording of the bill mentions that trains could not be built near pockets of methane gas, which is nonsense, since the train was re-routed to an area that was equally gassy.) A more recent example of train-fear occurred in the San Fernando Valley, where a group of homeowners have challenged the routing of Metro Rail down Chandler Boulevard — the historic route of the Red Car trolley line — ostensibly because the train would disturb Sabbath-observant worshippers. For some reason, their prayers are not disturbed by the constant flow of sport utility vehicles, trucks and buses down the same street, with the attendant noise, dust and greenhouse gases. The experience of the City of Mountain View, which has created four residential neighborhoods near rail lines, suggests that the fear of the train is overblown. Perhaps the most compelling example can be found at the Whisman Station area, where two home builders developed a residential subdivision of 503 units on a former industrial site with a light-rail line running smack dab down the middle. Residents can easily walk to the station for a train that carries them eight miles to downtown San Jose, where they can catch trains headed elsewhere across the city. Whisman Station is a textbook example of urban infill. Hemmed in by three major arterials, the site was a 75-acre industrial campus owned by GTE. In 1994, GTE sold about 46 acres to a pair of homebuilders, including KB Homes (formerly Kaufman & Broad Home Corporation, the largest homebuilder in the West) and Castle Group of San Mateo. The master plan, designed by Richard Frisbie of San Mateo, is the result of 60 public meetings. In the beginning, city officials envisioned hiding the train tracks behind a thick sward of green, with housing built along the outer edges of the site. Slowly, the current plan emerged, with several different housing types — attached town homes, small-lot single-family, and medium-small lot single-family — arranged around a pair of two small public parks. In this version, the housing is very close to the rail line; some of the houses are as close as 20 feet from the tracks, but they are at least partially insulated by a sound wall. Robert Freed, general manager of KB Home for the company's South Bay and North Bay divisions, is quick to point out that housing, not transit, was the selling point. But if anyone had qualms about living near the light rail, the overwhelming demand for housing in the region helped them overlook it. The new subdivisions sold out very quickly. The town homes were priced from about $225,000 to $350,000 while the single-family houses sold from the mid-$300,000s to the mid-$400,000s. Demand for the units was so high, in fact, "we had lotteries on all the new releases," Freed said. In other words, this is not an avant-garde subdivision to be populated by urban pioneers. This is a more-or-less conventional subdivision, built by a conventional commercial builder, that happens to have a train running through it. The relationship between the railroad and the neighborhood is not perfect, according to Freed. His chief complaint about the train is that the train whistle, which blows when the train is within 100 feet of a major road crossing, is too loud for a residential neighborhood. "Frankly, some railroads could do a better job adjusting their crossing rules," he said. Notwithstanding those problems, KB Homes is currently developing several additional subdivisions near rail stations in San Jose. All this good news needs some qualifiers, however. The Tasman Line of the Valley Light Rail system is a smallish, trolley-style train that runs comparatively slowly on newly laid steel tracks, so the system is very quiet. Major high-speed lines, such as BART or Caltrain, are noisier. And, the acceptability of homes near transit in Mountain View may not be typical of California because the demand for any housing is so extreme in Silicon Valley. Some homebuyers might be willing to tolerate conditions in Silicon Valley they would shun in other locations. That said, the experience in Mountain View suggests that train-fear on the part of homeowners is overblown. The Whisman Station experience seems to be a happy one; Frisbie, who visited the site on the day I interviewed him, reported that neighbors are "very pleased" with the neighborhood, and an executive officer of Castle Group, the home builder, lives in the area. The message seems to be that middle-class homeowners will tolerate rail and, conversely, that commuter rail has a place in conventional housing subdivisions as well as in high-density downtown areas. When several more projects with comparable success in building near rail, the documentation will then exist to reassure those livid homeowners at public meetings that rail will not endanger their property values, after all. And when we fix that problem with the whistle, the train will not disturb the tranquillity of the Sabbath, either.

The Cadiz Valley is an unlikely spot for an agricultural empire. A windswept Mojave Desert outpost best known for its spectacular sand dunes and dry lake beds, the valley receives only about 4 inches of rain a year and is seared by 120-degree temperatures during the summer. The nearby hamlet of Bagdad qualifies as one of the continent's driest spots, having once gone without recorded rainfall for 767 days. Left to its own devices, the landscape around Cadiz would support only such hardy vegetation as creosote bush and cactus. Instead, the Cadiz Valley sprouts luxuriant rows of oranges, lemons and table grapes. The combination of corporate muscle and geological accident that made this botanical peculiarity possible also may open a new era in California water development, one that holds either great promise or environmental peril, depending on which set of experts you believe. Located roughly midway between Mojave National Preserve to the north and Joshua Tree National Park to the south, Cadiz lies just off historic Route 66. It once served as a stop on the Atchison, Topeka and Santa Fe Railroad's main line between Arizona and Los Angeles. The rail stop also gives its name to Cadiz Inc., a publicly held company established in 1983 that owns about 37,000 acres in the remote Cadiz and Fenner valleys of eastern San Bernardino County. The company also has 21,000 acres of prime farmland in the San Joaquin and Coachella valleys. Through its wholly owned subsidiary, Sun World International, Cadiz is one of California's leading agribusiness companies and one of the nation's largest growers and marketers of table grapes, stone fruit and specialty crops. However, the company's most valuable asset may be neither crops nor land, but the resource hidden beneath them. The Mojave was not always the dry, forbidding place it seems today. As recently as 15,000 years ago, it was cooler and wetter, its lush valleys dotted by lakes fed by meltwater from glaciers of the most recent ice age. As the climate grew warmer and drier, the lakes evaporated and the rivers either dried up or changed course. Not all that water disappeared, however. Vast quantities had percolated underground and remain trapped there today. Cadiz Inc.'s Mojave land lies atop one such aquifer, an underground oasis the company estimates may hold 20 million acre-feet of water (an acre-foot, 325,900 gallons, is about what two Southern California families consume in a year). Conveniently, the aquifer lies only 35 miles from the Metropolitan Water District's (MWD) Colorado River aqueduct, a 242-mile-long channel that delivers more than half the water the agency wholesales to 26 member districts serving 17 million residents of coastal Southern California. The aqueduct these days is filled to its capacity of 1.3 million acre-feet annually. It will not be long, however, before the aqueduct carries about half that much. For decades, California has been taking more than its legal entitlement of Colorado River water, with MWD the primary beneficiary of the state's diversion of "surplus" flows unclaimed by Nevada and Arizona. But under an agreement brokered earlier this year by the federal government among users of the river, MWD has until 2015 to figure out how to cope with the loss of about 600,000 acre-feet of Colorado water annually. Underground storage is a critical component of MWD's strategy. It delivers Colorado River water for storage in aquifers belonging to the Coachella Valley Water District and Desert Water agency in return for their State Water Project entitlements. The Met also has an agreement with the Central Arizona Water Conservation District to store surplus water from Lake Mead in groundwater basins during wet years. In dry times, Arizona will pump the groundwater while MWD uses a portion of Arizona's Colorado River entitlement to keep the aqueduct to Southern California full. At first glance, the 50-year agreement signed earlier this year between MWD and Cadiz Inc. seems similar to the MWD strategies outlined above. The contract allows MWD to store up 1 million acre-feet of Colorado River water at any one time in the aquifer beneath Cadiz's desert property, and to withdraw up to 150,000 acre-feet a year. The agency can undertake this store-and-pump scenario as often as it wants. The MWD also has the right to buy 1.5 million acre-feet of "indigenous water" — water that has been deposited in the aquifer by natural means — over the life of the contract. The motivation for Cadiz is clear — the company is not making money from farming, having reported net losses of $22.5 million last year and $8.6 million in 1999. It could make as much as $500 million from the deal with MWD. The Met's motivation also is clear, given projected population increases in its service area and the impending reduction of Colorado River water. Environmental groups, however, fear that the quest for profit and the intensity of urban demand will produce irresistible pressure to maximize pumping regardless of its impacts on the Mojave's fragile ecosystem. By arranging to withdraw more than they have deposited, MWD and Cadiz have raised the possibility of widespread harm in an arid environment where groundwater-fed springs and seeps are crucial to rare plants and wildlife, such as bighorn sheep and desert tortoises. A drop in the water table — certain to occur unless natural recharge from rain and snow equals the "indigenous water" withdrawal — could dry up those critical sources, some of them inside federally protected wilderness areas in Mojave National Preserve. The Sierra Club, the National Parks Conservation Association (NPCA) and other groups have threatened litigation. Experts hired by Cadiz and MWD say the natural recharge rate is sufficient in the aquifer's 1,300-square-mile watershed to offset the proposed pumping. Scientists for the U.S. Geological Survey disagree, estimating that Cadiz and MWD will pump up to 25 times as much as can be replaced by precipitation each year. If the USGS experts are right, pumping could produce another unhappy side effect. Two "dry" lake beds nearby are actually kept damp by water rising to the surface from underground. If the water table falls, the lakes truly will dry out, producing vast dust storms of the kind experienced at Owens Lake on the eastern side of the Sierra (see CP&DR Environment Watch, September 2000). Cadiz and MWD have pledged to construct an elaborate monitoring system with sensors and wells to track groundwater levels, providing what their experts say will be ample warning if the project begins depleting the aquifer. What is not clear, however, is what would happen if those warning bells ring. Once Cadiz and MWD have invested hundreds of millions of dollars in pipelines, pumps and wells, and have committed thousands of Southern California households to water from the Cadiz aquifer, it seems unlikely that a few thirsty sheep and tortoises will shut down the water delivery. Contacts: Fiona Hutton, Cadiz Inc., (310) 899-4700. Jack Safely, MWD, (213) 217-6981. Steven Krefting, NPCA, (510) 839-9922. Elden Hughes, Sierra Club, (562) 941-5306.

A jury's award of $3 million to a Desert Hot Springs developer who sued the city for violating the Fair Housing Act has been reinstated by the U.S. Ninth Circuit Court of Appeals. District Court Judge Consuelo Marshall had ruled that the $3 million award was excessive, so she ordered a new trial on damages. However, the Ninth Circuit ruled that Marshall abused her discretion and ordered her to reinstate the original jury verdict. The Ninth Circuit also overturned Judge Marshall's decision to deny the developer's request for an injunction ordering the City of Desert Hot Springs not to violate the Fair Housing Act in the future. In 1990, Silver Sage Partnership signed an agreement to purchase the Silver Sage Mobile Home Park in Desert Hot Springs for low-income housing. The partnership initially sought to use county bonds to finance the project, but the city would not consent. The partnership then went to the state and received approval for $8.2 million in tax credits and a $4.2 million, 55-year mortgage from the Department of Housing and Community Development. However, the loan triggered Article 34 of the state constitution, which requires voter approval of low-rent housing projects that are developed or acquired by a public body. In December 1990, the City Council voted to deny Article 34 approval. The developer then sued in both state and federal court. Eventually, a state appellate court ruled in an unpublished opinion that a city council cannot block an Article 34 election, as the Desert Hot Springs council had. But the partnership did not pursue a ballot measure because the mortgage was no longer available. In federal court, the partnership alleged that the city's actions to block the project violated the Fair Housing Act. A jury agreed and awarded the partnership $3 million in damages. After the city filed a motion for a new trial, Judge Marshall ruled the jury's verdict was "grossly excessive." Using various calculations, Marshall concluded the partnership was entitled to only $388,000. When the partnership refused to accept the lesser amount, Marshall ordered a new trial on damages. The second jury awarded the partnership nominal damages. The partnership then appealed the district court's granting of a new trial on damages, the court's denial of an injunction against the city, and the amount of attorneys' fees the court allowed. Judge Marshall had ruled out most of the original $3 million award for multiple reasons: it was based on "speculative" lost profits; it failed to account for anticipated costs and returns; it included losses to individuals who were only marginally involved; it included losses from a potential tax increase; it double-counted the partnership's losses; and the partnership did not attempt to mitigate its losses. The Ninth Circuit ruled that Marshall was wrong. The appeals court held that Marshall improperly determined that the partnership would realize profits only after the entire mortgage was repaid. No evidence supported that conclusion, the Ninth Circuit ruled. " he partnership would receive some profits in any year that operating income exceeds payment on the loan, including payment for any accrued interest balance," Judge Betty Fletcher wrote for the three-judge panel. As for anticipated costs, Judge Marshall deducted $383,000 from the jury award because she found that the partnership would have had to pay for child-care facilities and temporary classrooms. The Ninth Circuit acknowledged that the developers planned to create a child care facility; however, there was no binding obligation for child care facilities or classrooms. As for marginally affected individuals, Judge Marshall deducted a real estate broker's fee and a syndication fee from the jury's award. The Ninth Circuit said this, too, was improper. The Supreme Court has adopted a "very liberal standing requirement" in Fair Housing Act cases, Fletcher wrote. Thus, the people who lost commissions because the city violated the Fair Housing Act had a right to recover damages for their injuries, the court ruled. The Ninth Circuit also ruled that Judge Marshall misread the partnership's obligation to mitigate its losses. Marshall cited a feasibility study conducted by one of the partners that concluded the mobile home park could be sold for $1.4 million after it was fully rented. So she deducted $1.4 million from the damages. "The court provided no legal authority to support the proposition that a party harmed by another's violation of the Fair Housing Act has a duty to mitigate its damages," Fletcher wrote. Moreover, it was unreasonable to assume the partnership could even purchase the property without the mortgage from HCD, which was no longer available, the court ruled. The appellate court did not even consider the double-counting issues because it concluded the evidence supported damages of $3.1 million — even more than the jury awarded. As for the injunction, the Ninth Circuit ordered Judge Marshall to reconsider her denial. Marshall ruled that the partnership must prove "a reasonable likelihood of future violations of the Fair Housing Act." But the partnership argued that Marshall improperly reversed the burden of persuasion. The Ninth Circuit appeared to agree. Noted Fletcher, "We have held that where a defendant has violated a civil rights statute, we will presume that the plaintiff has suffered irreparable injury from the fact of the defendant's violation." The Ninth Circuit also directed the district court to reconsider attorneys' fees — which had been awarded to the partnership in the amount of $57,000 — in light of the reinstated jury verdict. The Case: Silver Sage Partners, Ltd., v. City of Desert Hot Springs, Nos. 99-56917, 99-56919, 99-56920, 01 C.D.O.S. 4446. Filed June 1, 2001. The Lawyers: For Silver Sage: William J. Davis, Davis & Company, (213) 253-5939. For the city: Kevin Patrick McVerry, Graves, Roberson & Bourassa, (805) 498-7119.

A proposed waterfront hotel in Santa Barbara appears to be moving ahead after years of controversy. City officials in early June approved design plans for a 150-room hotel on Cabrillo Boulevard next to the existing Doubletree Hotel, and construction is likely to begin next year. The city originally approved the hotel in 1993. However Fess Parker, an actor and winery owner who owns the both this property and the neighboring Doubletree, wanted a hotel with more than 150 rooms. After failing to get city consent for a larger hotel, he qualified a ballot measure that would have allowed a 225-room facility. But voters rejected Measure S in 1999 by a 2-to-1 ratio. The city's original approval remained in effect, giving Parker until 2007 to build the hotel. He continued to tinker with the design, but the city rejected several modifications, including a third story and fewer parking spaces. The approved project will have two stories and something of a residential appearance. The Santa Barbara County grand jury has recommended the county create four area planning commissions because of distrust between north and south county residents. The grand jury report, issued at the end of May, recommended separate planning panels for unincorporated areas around the cities of Santa Maria, Lompoc and Carpenteria, and for the Santa Ynez Valley. The commission did not make a recommendation for a separate planning commission for the community of Goleta, as voters there are scheduled to decide on incorporation in November. The area commissions would have the same authority as the existing countywide planning commission. The grand jury also recommended the Board of Supervisors appoint members and that volunteers do much of the staff work. Residents of the Santa Maria area, about 70 miles north of the county seat in Santa Barbara, and other outlying locations have argued for years that they are not adequately represented in county land use decisions. At the same time, county supervisors are wrestling with redistricting. Rapid growth in Santa Maria could give the north county a majority on the five-member Board of Supervisors for the first time. Santa Clara County and the City of San Jose have approved an agreement to share the city's redevelopment tax increment and to give the county a say over city redevelopment projects. The agreement, approved in late May, calls for the city to direct about $15 million in tax increment per year through 2014 to the county, about double what the county has been receiving. In exchange, the county agreed to lobby the Legislation to extend San Jose's redevelopment efforts past a 2004 sunset date. The city and county have fought for years over the city's aggressive use of redevelopment, which county officials say deprives them of general fund revenues. The city expects to collect about $140 million in tax increment this year, and about $230 million annually by 2014. Voters in San Bruno in June approved a ballot measure permitting taller than normal buildings in a 20-acre mixed-used development. Seventy-two percent of voters approved of buildings as tall as 90 feet at The Crossings, a hotel, senior housing and retail development adjacent to a planned BART station (see CP&DR Places, May 2001). The vote on Measure E allows the project to move forward as originally designed and approved by the City Council. A $98 annual park tax failed to receive two-thirds voter approval in the City of Davis during a June election. Measure S received about 59% of the vote. The city's existing $49-a-year assessment to fund park development and maintenance ends in June 2002, and the City Council may place another park tax on the ballot before the sunset date. In November, Davis voters approved a $24-a-year assessment for 30 years to purchase open space and conservation easements around the city. The Sacramento Local Agency Formation Commission approved a major sphere of influence expansion for the City of Folsom in June. The decision adds 3,600 acres of oak woodlands and pastures south of Highway 50 to the city's sphere. Fast-growth Folsom has sought to gain control of the land for 10 years (see CP&DR Local Watch, April 2001). However, the land lies outside the county's urban services limit line, and county officials have fought to keep the property undeveloped. The LAFCO approval came with numerous conditions. Before it annexes any of the property, the city must prove it can provide adequate water and sewer services, and not make traffic worse on Highway 50. "I believe this is probably the most stringent set of conditions ever placed on a sphere of influence amendment, and I'm not just talking about Sacramento County," LAFCO Member and Citrus Heights City Councilwoman Roberta MacGlashan told the Sacramento Bee. Tulare County and the Center on Race, Poverty and the Environment have settled the Center's lawsuit over the county's program environmental impact report for dairies. Tulare County adopted the program EIR in April 2000, after the state attorney general's office sued the county to force great environmental scrutiny of two dairies. However, the Center contended the document was inadequate (see CP&DR, August 2000, July 1999). In exchange for the Center's dropping the lawsuit, the county agreed to complete additional study of dairies' cumulative impacts on air quality and ground water, and to consider additional mitigation measures. Tulare County is already the most productive dairy county in the nation and the industry continues to grow in the region. Planners have not been processing dairy applications because of the litigation by the attorney general's office and the Center. About 60 applications are pending. The Santa Clara Unified School District conducted a lottery in late June among teachers wanting space in a new apartment complex built by the school district. About 80 teachers applies for the 40 apartments under construction at the site of a closed school. The apartments will be available to teachers at about half of market rate, or about $700 a month for one-bedroom units and $1,200 a month for two-bedroom apartments. The district developed the housing as an incentive to attract and keep teachers discouraged by the expensive Silicon Valley housing market. Although the project is reported to be the first of its kind, other Bay Area school districts are pursuing subsidized teacher housing as well (see CP&DR Deals, February 2001). A joint study by the Institute of Urban and Regional Development at University of California, Berkeley, and the Center for Environmental Design found that urban encroachment around three major military bases is likely to pose conflicts. Camp Pendleton in northern San Diego County, Miramar Marine Corps Air Station in San Diego, and Travis Air Force Base in Fairfield are likely to feel the effects of urban growth, the study found. Researchers, however, reported that rapid growth does not appear likely to affect military bases elsewhere in the state, and adequate planning should prevent land use, noise and other conflicts from occurring. Thus, researchers concluded that a single, statewide policy cannot address the issues, which tend to be localized. Researchers urged local planners to incorporate the military's concerns into planning and permitting activities. An Alameda County Superior Court judge in June prevented the Moraga Town Council from reviewing a project approved by the Planning Commission because the only appeal of the project had been dropped. In March, the Planning Commission voted 4-2 to approve a 5,600-square-foot building in the Rheem Valley Shopping Center for a Starbucks and a Blockbuster store. One project opponent appealed the decision but later withdrew the appeal. The Town Council scheduled a hearing anyway, prompting a suit from the shopping center's owner. Judge Walter Rogers ruled that the Town Council hads no jurisdiction to review a project that was no longer the subject of an appeal.

The opponent of a proposed Mendocino County inn should have named the Coastal Commission in her lawsuit because the Commission, not the county Board of Supervisors, made the final decision on the project, the First District Court of Appeal has ruled. The project opponent named only the Board of Supervisors, whose decision had been appealed to the Commission. The Commission conducted a de novo hearing (a fresh hearing that ignores previous proceedings) and issued permits for the project; thus, the commission was an "indispensable party" and should have been named in any lawsuit, the court held. In November 1997, the Mendocino County Planning Commission approved a mitigated negative declaration and permits for a 20-unit guest inn near Mackerricher State Park, a few miles north of Fort Bragg. A number of groups, including the Sierra Club, appealed that decision to the county Board of Supervisors, which upheld the commission's decision in January 1998. Because the project site lies within the Coastal Zone, opponents then appealed to the Coastal Commission.In May of 1998, the Coastal Commission conducted a de novo hearing and approved a permit for the proposed inn. In March 1999, Sierra Club member Mary Rose Kaczorowski, acting as her own attorney, filed a lawsuit against the Board of Supervisors claiming that the board violated the California Environmental Quality Act by not requiring an environmental impact report for the inn. Mendocino County Superior Court Judge Cindee Mayfield ruled that the Coastal Commission was an indispensable party, and that the statute of limitations had already passed for Kaczorowski to add the Commission to her lawsuit. Kaczorowski then appealed, but a three-judge panel of the First District, Division Four, upheld the trial court. Under the Coastal Act of 1976 (Public Resources Code § 30000 et seq.), The Coastal Commission can hear an appeal that presents a "substantial issue." If it hears the appeal, the Commission conducts a de novo hearing. " n effect, the commission hears the application as if no local government unit was previously involved, deciding for itself when the proposed project satisfies legal standards and requirements," Justice Laurence Kay wrote for the court. "Once the Commission conducted its de novo examination, there was no longer a decision by the Board to review," Kay continued. "More fundamentally, the Board — although still interested in the matter — was no longer plaintiff's adversarial opponent. The Commission's findings that the proposed inn complied with CEQA superseded equivalent findings by the Board in precisely the same manner that the Board's decision superseded that of the Planning Commission. It was the Commission, not the Board, which issued the permit authorizing real parties to build their inn." Kaczorowski had 30 days from the Coastal Commission's decision to sue the agency, and that period expired before she filed her lawsuit against the Board of Supervisors, the court held. The Case: Mary Rose Kaczorowski v. Board of Supervisors for the County of Mendocino , No. A091318, 01 C.D.O.S. 3076. Filed April 17, 2001. The Lawyers: Kaczorowski in pro. per. For the Board: Frank Zotter, chief deputy county counsel, (707) 463-4446.

An appellate court has upheld the City of Napa's zoning ordinance that requires developers to devote a portion of their projects to affordable housing. The unanimous three-judge panel of the First District rejected the Home Builders Association of Northern California's contention that the inclusionary zoning law amounted to an unconstitutional taking. Instead, the court held that the ordinance substantially advances an important government interest, namely the creation of housing for low- and moderate-income families. The case had been closely watched by housing advocates and local government officials. Six housing advocacy organizations, 72 cities, the California State Association of Counties and the state attorney general's office filed amicus briefs for the City of Napa. At least 60 cities in California have similar inclusionary zoning laws. Interestingly, the Napa Chamber of Commerce, the Napa Valley Farm Bureau and the Napa Valley Grape Growers Association also sided with the city — a demonstration of the local need for affordable homes and the desire to protect the wine industry. During the mid-1990s, Napa created a task force to study affordable housing issues and solutions. The city ended up adopting an inclusionary zoning ordinance that requires developers to make 10% of new units "affordable" based on the local median income. Developers also can satisfy the requirement by designating land, or by building affordable units elsewhere in town. Builders also may pay an in-lieu fee to the city's housing trust fund. In 1999, the Home Builders Association filed a lawsuit alleging that Napa's measure was invalid on its face. The association claimed the law violated the takings clauses of the federal and state constitutions, the state Mitigation Fee Act, due process protections and Proposition 218. Napa County Superior Court Judge Scott Snowden upheld the city's demurer. The association appealed, but got no further. The appellate panel published only a portion of its opinion addressing the takings claims. The home builders sought to have the law reviewed based on the Nollan/Dolan "strict scrutiny" standard. Nollan v. California Coastal Comm'n, (1987) 483 U.S. 825; Dolan v. City of Tigard, (1994) 512 U.S. 374. In Nollan, the U.S. Supreme Court required an "essential nexus" between a state-imposed condition of development, and the impact of the development. In Dolan, the high court said there must be a "rough proportionality" between the exaction and the development's impacts. But the First District ruled that the Nollan/Dolan test was inapplicable because it applies to specific land use "bargains" between a property owner and a regulatory agency. The court ruled, " different standard of scrutiny applies to development fees that are generally applicable through legislative action because the heightened risk of the ‘extortionate' use of the police power to exact unconstitutional conditions is not present." The court cited both Ehrlich v. City of Culver City, (1996) 12 Ca.4th 854 (CP&DR Legal Digest, April 1996) and Santa Monica Beach, Ltd. v. Superior Court, (1999) 19 Cal.4th 952 (CP&DR Legal Digest, February 1999). Writing for the court, Presiding Justice Barbara Jones continued, "Here, we are not called upon to determine the validity of a particular land use bargain between a governmental agency and a person who wants to develop his or her land. Instead, we are faced with a facial challenge to economic legislation that is generally applicable to all development in City. We conclude the heightened standard of review described in Nollan and Dolan is inapplicable under these facts." What matters, the court ruled, is whether the inclusionary zoning ordinance substantially advances a legitimate government interest — the test outlined in Agins v.. Tiburon, (1980) 447 U.S. 255. " e have no doubt that creating affordable housing for low and moderate income families is a legitimate state interest," Jones wrote. And, by requiring developers to provide "a modest amount of affordable housing," the ordinance does substantially advance that legitimate interest, the court ruled. In the unpublished portion of its opinion, the court rejected the home builders' due process and Proposition 218 arguments. The court deemed that claims regarding Mitigation Fee Act violations were waived because the home builders provided no analysis. The Case: Home Builders Association of Northern California v. City of Napa, No. A090437, 01 C.D.O.S. 4655, 2001 DJDAR 5713. Filed June 6, 2001. The Lawyers: For the association: Paul Campos, HBA general counsel, (925) 820-7626. For the city: Kirk Trost, Hyde, Miller, Owen & Trost, (916) 447-7933.

California is experiencing a wave of power plant construction unlike it has ever seen before. If all plants now in the pipeline are constructed – and most of them are going forward quickly – the state's electricity-generating capacity will increase by roughly one-third by the end of 2003.The rush comes after 10 years of no private power plant construction. Many, but by no means all, of the new power plants have received approval under expedited review processes urged by the Legislature and Governor Davis. State officials say they are doing their best to review environmental impacts of the plants and to give affected communities chances to participate in project reviews. However, some critics say the process has become skewed toward producing more megawatts. Environmentalists and some local officials complain that they have had little time to react to some projects. Of greatest concern are plants intended to produce electricity only during times of peak demand. An executive order signed by Davis in March gave the California Energy Commission only 21 days to review emergency "peaker" plants that operators promised to have on-line by September 30. As of mid-June, the commission had permitted 10 peaker plants capable of generating 827 megawatts under the executive order, according to the governor's office. "My biggest concern," said Sandra Spelliscy, general counsel for the Planning and Conservation League, "is that we have really taken the California Environmental Quality Act out of the process of siting these power plants." For the 21-day process, the governor suspended CEQA and gave state analysts 7 days to complete an environmental review. Esther Feldman, president of Community Conservancy International, which is spearheading a proposed park in Los Angeles's Baldwin Hills, said the 21-day review process for a peaker plant in the planned park made public involvement difficult. "The process is untenable. There essentially is no process," Feldman said. "When you're talking 21 days, it's a ram-through. The deal has been done. It's just a formality." Feldman, former chair of the Los Angeles County Regional Planning Commission, appeared to win her battle when the applicant for the Baldwin Hills project withdrew. But, she said, the process should have included local oversight and extensive public outreach. Instead, "the dates on the public hearings changed five times." In June, the City of Chula Vista found out how quickly the process can move. Ramco, Inc., which had received city approval for a 49-megawatt power plant from the city last year, filed an application for a 62-megawatt peaker plant in mid-May. State officials conducted a hearing in the southern San Diego County city, but the public and city officials struggled to make themselves heard. In a letter to the Energy Commission, the city complained that the state had taken exclusive authority, "as if the local jurisdiction's comments do not matter." After receiving the six-page letter from the city outlining concerns, as well as last-minute comments from the San Diego Air Pollution Control District, the Commission did postpone its final decision on the Ramco project – by two days. Energy Commission spokeswoman Mary Ann Costmagna said officials did conduct an informational hearing in San Diego and a site tour that was open to the public. The state sent out media advisories and provided an electronic list-serve for individuals and the press, she said. "Every effort has been made to keep it an inclusive process," Costmagna said. Multiple tracks Last year, the Legislature passed AB 970, which established a four-month review process for "peaker" plants. However, because of a short window in which the plants had to come on line and because of various data problems with applications, the state approved only one peaker plant under this system, according to Chris Tooker, siting policy program manager for the Energy Commission. In addition to the four-month process for peakers, AB 970 also required the Energy Commission to develop a six-month process for proposed power plants that met a number of criteria, including full compliance with federal and state air quality standards and evidence that there would be no unmitigated environmental impacts. The commission has since adopted regulations for the six-month review. Since February, Davis has issued four executive orders regarding power plant licensing. He extended the four-month review process for plants that can be on-line by next summer, and he ordered the 21-day, CEQA-exempt process for plants that can be on-line by September 30. Also, the Legislature approved SB 28X (Sher) that extended the four-month review process for certain projects through 2003. Thus, the commission now has four different review processes, depending on project size, timing and environmental factors: A 21-day process for peakers that can be on-line by September 30; a four-month process for peakers that can be running fairly quickly; a six-month process for larger, long-term power plants; and the normal 12-month process. All of the expedited processes (less than 12 months) expire at the end of 2003. Several of the biggest and most controversial projects, including the 600-megawatt Metcalf Energy Center in south San Jose, and a 1,000-megawatt expansion of the Moss Landing facility near Watsonville, are proceeding under the normal year-long review process. The 21-day process is available only to projects on sites that were pre-screened by the Energy Commission, Tooker explained. The sites must have infrastructure in place, and there can be no known environmental issues, he said. "We have not ignored environmental concerns, we just have been exempted from following the normal timelines in the environmental review process," Tooker said. "It's not like there is not public involvement. It's just curtailed because you are cutting out review time." For the 4-, 6-, and 12-month processes, the Energy Commission is still following its normal environmental review process, which is the equivalent of CEQA, Tooker said. The expedited processes have fewer public workshops than the normal 12-month process, but the public still has at least four opportunities to provide input, he said. Most cities limit their participation to comments on the draft environmental impact report, he said. Tooker expects some of the streamlining to remain in place even after the 2003 sunset date. The Warren-Alquist Act allows the state to override local zoning for power plants, However, only twice in the commission's nearly 27-year history has it overridden local zoning, and one time it was requested by the county, Tooker said. None of the recently approved projects has been incompatible with local zoning. And, Tooker added, "In most of the cases, the commission has licensed with all of the impacts mitigated." Doubts exist Michael Boyd, president of Californians for Renewable Energy, questioned whether emissions from the new power plants will be as clean as they could be. The state is allowing peaker plants to operate for months before they comply with clean air regulations, and some major plants are relying on questionable "offsets," he charged. Furthermore, many of the plants are being approved in poor communities, raising environmental justice issues. "The governor is letting the companies who are gouging us get away with murder," Boyd said. The Chula Vista peaker approved in mid-June provides something of a case in point for environmentalists. The Energy Commission license allows Ramco to emit five times as much NOx (nitrogen oxide, the chief pollutant from power plants) from the time the plant comes on line until June 30, 2002. Moreover, the plant is planned in an area that already has one power plant and more siting proposals. City officials contend the state does not know what the cumulative impacts will be because there has been no time for analysis. Michael Lake, chief of the engineering division for the San Diego Air Pollution Control District, said, in fact, his agency has analyzed cumulative impacts for the Chula Vista and Otay Mesa area. The agency found no concerns. However, if there is a natural gas shortage — a distinct possibility for the area — those plants would burn oil, which might be a concern. The agency is studying that scenario, he said. Lake said the expedited processes have proven frustrating, although the plants proposed for his district are all gas-fired with efficient turbines — far cleaner than oil-powered plants of the past. He said the quick process has caused some agency coordination and communication problems, and has led to projects receiving little review by the public. Lake added, "Because these projects are moving so quickly, the project developers themselves are making changes — such as changing the height of a stack — and some of those changes affect our air quality modeling." Some people question the rush for emergency peakers that are not required to be on-line until September 30 — after the hottest season has passed. Spelliscy, of the PCL, said that some peaker plants are receiving licenses for combination-cycle plants, even though they are really the dirtier single-cycle turbines. The idea is that the plants will be converted to the combination cycle plants later. In the meantime, the local air district will issue abatement notices. "It's a huge shell game, playing fast and loose with the federal Clean Air Act," Spelliscy charged. "It's just being done outside the normal processes and being done so quickly that no one can get a hold of it." Furthermore, she complained, SB 28X allows power plant developers to file applications without offsets in hand. (All large power plants need air quality offsets, which are often gained by retrofitting an existing manufacturing facility elsewhere.) An additional concern of some people is that the plants being approved as emergency peakers or under less-than-strict scrutiny will not go away when their permits expire in 2003. There will probably be enormous political pressure to extend these power plants' lifespans, Spelliscy said. Feldman, of Community Conservancy International, agreed with that concern. "There has not been a power plant in California that has been taken down yet," she said. "It's impossible to write a permit condition that can require one of these to be taken down. You can only lawyer it so far." Certainly there is enormous political pressure right now to build electricity generating facilities, and Gov. Davis is making no apologies for the construction boom. In April, the governor appointed Richard Sklar, a former president of San Francisco construction management company O'Brien-Kreitzberg, to work with power plant developers. And the governor emphasizes that no environmental standards are being compromised. Despite the governor's build-it-now approach and environmentalists' feeling of unease, adequate public pressure can kill – or at least stall — a proposed power plant. In late June, La Jolla Energy Development Inc. announced it was withdrawing its application for a 53-megawatt power plant on a former oil field in the Baldwin Hills. A politically powerful coalition, including Feldman, has formed behind the idea of creating a 1,200-acre park in the Baldwin Hills, and the state last December allocated $41 million to buy 68 acres in the area – reportedly the largest state grant ever for the purchase of urban parkland. Park supporters said the power plant would conflict with the park and, pointing to the mostly poor neighborhoods in the immediate area, they raised environmental justice concerns. "We listened to the community," La Jolla President Steve Wilburn told the Los Angeles Times. "We need to find another place for this equipment." Still, Stocker Resources, the oil company that controls much of the land proposed for a park, indicated it might pursue a power plant anyway. Contacts: Chris Tooker, California Energy Commission, (916) 653-1634. Michael Lake, San Diego Air Pollution Control District, (858) 650-4700. Sandra Spelliscy, Planning and Conservation League, (916) 444-8726. Esther Feldman, Community Conservancy International, (310) 475-0797. Michael Boyd, Californians for Renewable Energy, (408) 325-4690. Energy Commission website: www.energy.ca.gov

Throwing into question utility users' taxes collected by many cities, the state Supreme Court has overturned a lower court's ruling that a lawsuit challenging a city's utility users' tax was filed too late. The state's high court ruled unanimously that the three-year statute of limitations begins anew every time the city collects the tax. Relying on Proposition 62 from 1986, which required voter approval of general taxes imposed by local governments, the Howard Jarvis Taxpayers Association challenged a City of La Habra levy. A total of 156 cities levy a utility users' tax, which is typically a small percentage of monthly electric bills. Some of those taxes were imposed before Proposition 62, some were approved by voters as required by Proposition 62 and some were approved by voters under the dictates of Proposition 218, said Megan Taylor, a spokeswoman for the League of California Cities. The League was still trying to determine the scope of the ruling, she said. Some utility users' taxes provide up to a quarter of a city or county's general fund revenue. Jarvis attorney Timothy Biddle said he expects more aggrieved taxpayers will now sue to force an election on general taxes that voters never approved. "The upshot of the La Habra case is that if you are somebody who has paid a tax recently, you can challenge it in court," Biddle said. Previously, courts had held that taxpayers had to file suit within three years of a tax's enactment. The Jarvis group appears to have gained the upper hand in a similar suit pending against Sacramento County. And it is likely that the state Supreme Court will direct the Sixth District Court of Appeal to reconsider its unpublished rulings that upheld similar taxes in the cities of Santa Cruz and Watsonville, and in Santa Cruz County. In December 1992, the La Habra City Council adopted an ordinance establishing a utility users' tax to raise general fund revenue. The measure became operational May 1, 1993, when tax collection commenced. Up to that date, two appellate court panels had held that Proposition 62 was unconstitutional. Relying on those decisions, the city did not submit its utility users' tax to voters. However, in September 1995, the California Supreme Court upheld the constitutionality of Proposition 62 in Santa Clara County Local Transportation Authority v. Guardino, (1995) 11 Cal.4th 220 (see CP&DR Legal Digest, November 1995). In that case, the Supreme Court invalidated a tax imposed without voter consent. In March of 1996, the Jarvis group filed a lawsuit against La Habra and Orange County. The city demurred, in part because of the three-year statute of limitations. Orange County Superior Court Judge Ronald Kline ruled for the city. On appeal, Jarvis relied heavily on McBrearty v. City of Brawley, (1997) 59 Cal. App.4th 1441. The McBrearty court concluded that an exception to the three-year statute of limitations was warranted to prevent an injustice. The court in McBrearty also said it was understandable citizens would not file lawsuits because the precedent prior to Guardino was against Proposition 62. But the Fourth District Court of Appeal panel in the La Habra case called the McBrearty opinion "flawed." The State Supreme Court in Monroe v. Trustees of the California State Colleges (1971) 6 Cal.3d 399, concluded that "the mere existence of a contrary precedent" does not alter the statute of limitations. To rule otherwise would allow litigation every time a precedent changed. Thus, the three-year statute must be upheld, the appellate panel ruled. In overturning the appellate court, the state Supreme Court did not accept Jarvis's argument that it was delayed from suing La Habra until the Guardino ruling. Instead, the high court accepted the argument that the city's collection of a general tax without voter approval was a violation of Proposition 62 that continuously provided grounds for a lawsuit. The city did not dispute that it failed to comply with Proposition 62. Instead, it argued that Jarvis had to file its lawsuit within three years of the City Council's adoption of the tax. Jarvis missed that date by about one year. The city argued that Jarvis was attacking the enactment of the ordinance, not the actual collection of the tax. Even Jarvis conceded to the state Supreme Court that the group was not seeking a refund of taxes already paid. But the court concluded that the lack of a refund claim did not matter. " laintiffs have alleged an ongoing violation of Proposition 62's commands, for which they seek relief in mandamus, and a presently existing actual controversy between themselves and the City over the validity of the utility tax, which they seek to resolve by declaratory judgment; those causes of action are not barred merely because similar claims could have been made at earlier times as to earlier violations, or because plaintiffs do not at this time also seek a refund of taxes paid," Justice Kathryn Werdegar wrote for the court. Proposition 62 (Gov. Code §§ 53720-53730) requires that general taxes adopted prior to the proposition's passage in November 1986 be approved by voters by November 1988, the court noted. If a city refuses to comply, the measure directs county officials to withhold property taxes from cities in an amount equal to the illegal tax. "Clearly the intent of Proposition 62's enactors was not merely to preclude enactment of a tax ordinance without voter approval, but to preclude continued imposition or collection of such a tax as well," Werdegar wrote. The court also pointedly addressed the concern — noted in amicus briefs from nearly 200 cities and counties — that starting the three-year statute of limitations anew every time a tax is imposed would destabilize financial planning. "The local governments' suggestion, 14 years after the passage of Proposition 62 and five years after Guardino's resolution of the constitutional questions, that their budgetary planing process will be disrupted if Proposition 62's requirements are enforced, is not well taken. Cities and counties must eventually obey the state laws governing their taxing authority and cannot continue indefinitely to collect unauthorized taxes," Werdegar wrote. "Moreover," she continued, "our holding relates only to injuries occurring in the statutory three-year period before suit is brought and applies only to plaintiffs injured by tax collections within the three-year period. The legitimate public interest in stability of municipal finance is not imperiled." The Case: Howard Jarvis Taxpayers Association v. City of La Habra, No. S082591, 01 C.D.O.S. 4539, 2001 DJDAR 5565. Filed June 4, 2001. The Lawyers: For Jarvis: Timothy Biddle, (916) 444-9950. For La Habra, Richard D. Jones (714) 446-1400.

Determined to maintain its identity as a "nice valley town," the City of Reedley has adopted a specific plan that contains many of the precepts of traditional neighborhood design. The plan, adopted in January, covers Reedley's future growth areas — about 1,200 acres outside the city limits but inside the sphere of influence. The Ahwahnee Principles, something of a bible for New Urbanists, provides a basis for the plan, as does a 1999 report called Landscape of Choice. The latter report, adopted by a huge variety of Fresno County interest groups, urged more compact development to spare farmland. The Reedley Specific Plan is heavy on principles of efficient development. It permits single-family lots as small as 5,000 square feet and requires new projects to be within 660 feet of existing or already approved development. Annexation for residential development is allowed only when at least 80% of residential land inside the city limits is already built. As for design, the plan calls for development around neighborhood "activity nodes" that offer stores, offices and public spaces. Houses can be set back from the sidewalk as little as 10 feet if they have front porches. Garages should be recessed or detached. Commercial buildings should have parking in the rear and no large, blank walls. Reedley is a Fresno County town of 22,000 people surrounded by fruit orchards. Although it lies about 12 miles east of Highway 99, the area has experienced growth pressures, especially as people who work in Fresno look for homes outside the city. Applying the concepts of New Urbanism, which are mostly targeted to denser metropolitan areas, to a city like Reedley provides an interesting test. And city officials have tailored the concepts to their town by allowing builders to bypass some density and design standards. The plan was written with three goals in mind: to preserve farmland while accommodating urban growth; to preserve air quality; and to encourage urban design that creates a strong sense of community while respecting the town's historic design. Building consensus for such a plan, however, was not easy in a town where recent development has been characterized by low-density, ranch-style homes on cul-de-sacs. "It was a very big educational process to get our citizens committee to understand how these concepts work and why these concepts are preferable to what we had been doing in the past," said Michael Olmos, assistant city manager. "Getting that buy-in was really important." Olmos, who was community developer director at the time, other staff members and consultant Karl Schoettler, of Visalia's Collins & Schoettler, spent months educating the Specific Plan Committee, which had an open membership. Schoettler showed countless slides to make abstract concepts more tangible. "We tried to keep it real visual and unbureaucratic and unplanning-like. I think that paid off," Schoettler said. Planners also arranged a bus tour to traditional neighborhood developments in San Jose, Mountain View, Suisun City, Davis and Sacramento. The tour allowed people to walk around recent development projects based on New Urbanist principles. Showing some of the naysayers these successful developments helped diffuse opposition, Schoettler said. The months spent educating committee members, planning commissioners and city councilmembers was time well spent, said Olmos, who was already convinced of the need to overhaul land use practices. "I didn't realize early on how hard it would be to change what we had been doing," Olmos said. "You have to show people — present them with information and present them with the studies. … If you just go in and hit them cold with it, their first reaction is that it doesn't look like what we've been doing in the past, and, therefore, there must be something wrong with it." In the end, much of the debate was over housing density and street widths. City officials sought a minimum of five homes per acre to conserve farmland and because that density is less expensive for the city to serve than recent developments of about three units per acre, Olmos said. Representatives of the development and real estate communities pushed for measuring all developed combined by the five-units-per-acre goal, rather than requiring individual developments to meet the minimum. The City Council decided to require every project to have at least five units per acre, but also to allow developers of less dense projects to pay an in-lieu fee for preserving open space or farmland. The amount of the fee remains undetermined. The streets issue centered on safety and emergency vehicle access. Planners proposed reducing typical residential street width from 40 feet (curb to curb) to 32 feet to slow traffic, reduce asphalt, allow room for planting strips, and bring houses closer together. The City Council settled on 35 feet and accepted the concept of planting strips. The city is now in the implementation mode. Officials are preparing amendments to the city's general plan, zoning ordinance and subdivision regulations to reflect the specific plan. The city has also begun reviewing the first project within the specific plan area — a 236-unit, single-family-home subdivision on the east side of town. Developer Robert Wood of CSE Homes has proposed a project of about 4 units per acre on a grid pattern. "It's going to be a hybrid that looks like New Urbanism, but it's really not going to be more dense," he said. Homebuyers in the Central Valley expect decent sized lots and usable backyards, Wood said. And, because of sweltering summers, homebuyers dislike two-story houses that are expensive to cool. Whether the city eventually accepts Wood's proposal — and whether it charges him an in-lieu fee — is uncertain. Community Development Director Fred Brusuelas said city officials are sensitive to market demands because they want the first project in the specific plan area to be successful. "I think if the density were placed in a metropolitan area, say the Bay Area or Los Angeles, you would not have trouble selling the lots. But in the Reedley area, homeowners expect a little bigger lot," Brusuelas said. Wood said Reedley can take New Urbanist concepts only so far because the city is primarily a commuter town whose residents work 20 miles away in Fresno and there is no public transit. Thus, residents remain dependent on automobiles. Still, Wood indicated he could work with the new specific plan. "You have to reach out of the box a little bit in product design, which is expensive. I can't take what I would build in other valley towns to Reedley," Wood said. Steve Hoyt, San Joaquin Valley project manager for the Local Government Commission, said Reedley is taking New Urbanist principles farther than just about any other city in the region. The Local Government Commission, an independent entity whose members drafted the Ahwahnee Principles, helped steer a $35,000 federal air quality grant to Reedley for the specific plan process. "It's not all that common for small communities to do specific plans. Not all cities are as visionary as Reedley. And, really, specific plans are expensive," Hoyt said. The specific plan builds on existing assets: a downtown that is not as neglected as many others in the valley, a community college and the Kings River, which runs through town. A new rails-to-trails project has also provided a boon. The city recently completed conversion of the abandoned rail line to a multi-use trail and greenbelt. The 80-foot-wide right-of-way runs smack through the middle of town, providing access to the college, the high school and downtown. The trail has already proven so popular that officials are talking about extending it, Olmos said. While the specific plan has drawn the interest of many planners and has won an award from the local chapter of the American Planning Association, the most controversial development proposal in town lies outside the area — and the principles — of the specific plan. Wal-Mart has proposed a store for the western entrance to town. City planners expect to release an environmental impact report on the big box store this month, with a decision on the project likely this fall. Contacts: Michael Olmos and Fred Brusuelas, City of Reedley, (559) 637-4200. Karl Schoettler, Collins & Schoettler, (559) 734-8737. Robert Wood, CSE Homes, (559) 447-3080. Steve Hoyt, Local Government Commission, (916) 448-1198.

An appellate court has upheld a voters' decision on a City of Pleasanton referendum that effectively blocked an 89-unit subdivision. In upholding the election, the unanimous three-judge panel of the First District, Division One, rejected the developer's argument that the election resulted in zoning that was inconsistent with the city's general plan and, therefore, should be overturned. Instead, the court ruled that the election only maintained the status quo and was a valid exercise of the referendum authority. In January 1999, the Pleasanton City Council approved an ordinance "prezoning" the 46-acre site in question to "PUD: Low Density Residential." The site is just outside the city limits but within the Pleasanton sphere of influence. The city approved the DeSilva Group's plan for an 89-unit subdivision, as well as a $1 million "amenity fee" to be paid by the developer. Project opponents then collected enough signatures to force a referendum on the prezoning. In a June 1999 special election, Measure P failed by a 60-to-40 ratio (see CP&DR, July 1999). The vote overturned the City Council's prezoning decision, leaving the 46 acres with "unincorporated territory" zoning. The developer filed a lawsuit eight days after the election, arguing that the defeat of Measure P created an inconsistency with the city's general plan, which designated the site for low-density residential development. Alameda County Superior Court Judge Henry Needham ruled against the developer, and the appellate court upheld the decision. A city can enact zoning ordinances for property outside the city limits, but inside its sphere of influence, Justice William Stein wrote. The electorate has the same legislative authority, including "the decision to prezone — or the decision not to prezone." However, all zoning decisions, — whether made by the legislative body or by the electorate — must be consistent with the relevant general plan, he wrote. The PUD: Low Density Residential zoning was consistent with the Pleasanton general plan. "It does not follow, however, that failing to prezone the property PUD: Low Density Residential creates an inconsistency with the general plan," Stein wrote. Courts have held that when a property has been zoned for use that matches the general plan designation, the electorate cannot use a referendum to rezone the property to a use inconsistent with the general plan, Stein noted. He cited City of Irvine v. Irvine Citizens Against Overdevelopment, (1994) 25 Cal.App.4th 868 (see CP&DR Legal Digest, July 1994), and deBottari v. City Council, (1985) 171 Ca.App.3d, 1204. The Pleasanton developer argued that "restoring" the property's zoning as "unincorporated territory" conflicted with the general plan because it prevented housing development — much as the court-invalidated referendum in City of Irvine would have restored a property's zoning as "development reserve" and blocked a development project. The First District, however, said the cases are different. "In the present case," Stein wrote, "the city's general plan, while recognizing that at some point the property should be developed for low density residential usage, does not call for its immediate annexation and development. Unlike the properties at issue in City of Irvine and deBottari, the property never has been zoned in a manner that permits the usage contemplated by the general plan, and unlike the initiatives in those cases, the defeat of Measure P did not rezone the property to preclude low density residential housing." "As Measure P did nothing more than cause the property to continue as unincorporated territory, and as the city's general plan does not require annexation and prezoning of unincorporated territory, there is no inconsistency between Measure P and the city's general plan," Stein wrote. The court also rejected the argument that the referendum arbitrarily precluded a certain type of housing. The court said Measure P simply maintained the status quo. Finally, the court was not persuaded by the argument that the prezoning was not subject to referendum because it was an adjudicatory — not a legislative — decision that only carried out the general plan. " ur Supreme Court has held, without equivocation, that zoning ordinances are legislative acts," Stein wrote. The Case: James A. Merritt v. City of Pleasanton, No. A089834, 01 C.D.O.S. 4683. Filed May 11, 2001. Ordered published June 7, 2001. The Lawyers: For Merritt: David Lanferman, Sheppard, Mullin, Richter & Hampton, (415) 434-9100. For the city: Michael Roush, city attorney, (925) 931-5015.

Power plants of at least 300-megawatts approved by the California Energy Commission since 1999: o Sutter Power, 500 MW, Sutter County. Approved April 14, 1999. Scheduled on-line July 2001. o Los Medanos Energy Center, 559MW, Pittsburg. Approved August 17, 1999. Scheduled on-line July 2001. o La Paloma, 1,048 MW, McKittrick (Kern County). Approved October 6, 1999. Scheduled on-line December 2001. o Delta Energy Center, 880MW, Pittsburg. Approved February 9, 2000. Scheduled on-line April 2002. o Moss Landing, 1,060 MW, Monterey County. Approved October 25, 2000. Scheduled on-line June 2002. o Elk Hills, 500 MW, Kern County. Approved December 6, 2000. Scheduled on-line March 2002. o Sunrise Power, 320MW peaker, Fellows (Kern County). Approved December 6, 2000. Scheduled on-line August, 2001. o Pastoria, 750MW, Kern County. Approved December 20, 2000. Scheduled on-line January 2003. o Blythe Energy, 520MW, Blythe. Approved March 21, 2001. Scheduled on-line April 2003. o Midway-Sunset (Western), 500 MW, McKittrick. Approved March 21, 2001. Scheduled on-line March 2003. o Mountainview, 1,056 MW, San Bernardino County. Approved March 21, 2001. Scheduled on-line June 2003. o Otay Mesa, 510 MW, San Diego County. Approved April 18, 2001. Scheduled on-line July 2003. o High Desert, 720MW, Victorville. Approved May 3,2000. Scheduled on-line July 2003. o Huntington Beach Modernization, 450MW, Huntington Beach. Approved May 10, 2001. Scheduled on-line August 2001. o Three Mountain Power, 500 MW, Burney (Shasta County). Approved May 16, 2001. Scheduled on-line January 2004. o Contra Costa Repower, 530 MW, Antioch. Approved May 30, 2001. No scheduled completion date yet. Emergency Peaker Plants Approved by the California Energy Commission under 21-day review process: o Indigo, 135MW, Palm Springs. Approved April 4, 2001. Scheduled on-line July 5, 2001. o Larkspur, 90 MW, San Diego. Approved April 4, 2001. Scheduled on-line July 5, 2001. o Alliance Century, 40MW, Colton. Approved April 25, Scheduled on-line August 1, 2001. o Alliance Drews, 40MW, Colton. Approved April 25. Scheduled on-line August 1, 2001. o Calpine King City, 50MW, King City. Approved May 2, 2001. Scheduled on-line September 30, 2001. o Hanford Energy Park, 95MW, Hanford. Approved May 10, 2001. Scheduled on-line September 1, 2001. o Calpine Gilroy, 135 MW, Gilroy. Approved May 21, 2001. Scheduled on-line September 30, 2001. o Calpeak Escondido, 49.5 MW, Escondido. Approved June 6, 2001. Scheduled on-line September 30, 2001. o Pegasus Chino, 180MW, Chino. Approved June 6, 2001. Scheduled on-line September 30, 2001. o Chula Vista, 62.4MW, Chula Vista. Approved June 13, 2001. Scheduled on-line September 30, 2001. Projects before the Energy Commission as of June 25, 2001: o CalPeak Border, 49MW peaker, San Diego County. 21-day review. o East Altamont Energy Center, 1,100 MW, Alameda County. o El Segundo Modernization, 280MW net gain, El Segundo. o Lancaster Energy Facility No. 1, 240 MW peaker, Lancaster. 21-day review. o Magnolia Power Project 250MW, Burbank. o Metcalf Energy Center, 600MW, San Jose. o Modesto Irrigation Project, 80MW, Modesto. o Morrow Bay Replacement, 198MW net gain, Morro Bay. o Ocotillo Energy Project, Phase I, 456MW, Palm Springs. o Pastoria Expansion, 250 MW, Kern County. o Potrero Repower, 540MW, San Francisco. o Rio Linda/Elverta, 560MW, Sacramento County. o Russell City Energy Center, 600MW, Hayward. o United Golden Gate Power Plants, Phase II, 570MW, Millbrae. o Valero Cogeneration Project, 102MW, Benicia.