Search Results

A Nevada County landowner cannot prevent the public from using a dirt road across his property, as public access to the road was established prior to a 1972 state law that greatly limited prescriptive easements, the Third District Court of Appeal has ruled. The public acquired — under the manner outlined by State Supreme Court rulings — the right to walk, run, cycle and ride horses on a dirt road adjacent to a Nevada Irrigation District (NID) irrigation canal on property owned by Jon Blasius, the appellate panel ruled. The court rejected contentions that a public easement would conflict with the NID easement for the canal, and that Blasius and previous owners were prevented by NID from blocking public use of the road. The Rattlesnake Canal, one of many owned by the Irrigation District, was constructed during the 1920s. A nine-foot wide dirt road runs next to the ditch for many miles as the canal snakes through the Sierra foothills. A 240-foot-long section of the canal and adjoining road crosses Blasius' property near Grass Valley. From 1957 to 1981, a previous property owner allowed the public to use the canal road. Through a string of sales, deaths and marriages, Blasius and his wife, Robin, obtained the property in August 1996. They quickly blocked the road with locked gates at either end of their property. Only they and NID have keys, and the landowners denied passage to members of the public. A year later, a group called Friends of the Trails sued Blasius and the Irrigation District. Friends sought to quiet title to a public easement for recreational purposes, and sought injunctive and declaratory relief. During a trial, 19 witnesses testified that they and others used the canal road from the 1940s through 1971 for recreational walking and running, riding bicycles and horses, fishing and as a route to school. None of the witnesses had ever asked permission to use the road or had been asked not to use the road. Retired Nevada County Superior Court Judge Wayne Wylie, sitting by assignment, ruled that the public had acquired title to "an easement for public right-of-way and recreational purposes across the property presently owned by Jon and Robin Blasius." Wylie enjoined the landowners from obstructing access, but made no ruling against the Irrigation District Blasius and NID appealed on a variety of grounds. They argued that Judge Wylie improperly applied the California Supreme Court's Gion-Dietz doctrine concerning adverse possession. The Gion and Dietz cases, Gion v. City of Santa Cruz (consolidated with Dietz v. King) (1970) 2 Cal.3d 29, deal with public easements to shoreline properties. The state high court held that to prove adverse possession, a litigant need only "provide evidence that persons have used the land as they would have used public land" without interference for at least five years. For the landowner to prevent future public use, "he must either affirmatively prove that he has granted the public a license to use his property or demonstrate that he has made a bona fide attempt to prevent public use." Finally, the court said there is no difference between dedication of shoreline property and other property. The appellate panel noted that Gion-Dietz was controversial, as it led to legislation in 1972 that halted future use of the implied dedication doctrine unless the government maintained the land for public use or the property was within 1,000 feet of coastal waters. (See Civil Code §§1009, 813.) To Blasius and the Irrigation District, Gion-Dietz remained controversial, as they argued the decision was "troubling" and had "malignant effects." "We are invited to ignore a settled precedent," Justice Coleman Blease wrote for the unanimous three-judge appellate panel. "We decline to do so. It is accurate to say the enactment of §1009 and the related amendment of §813, in large part, abrogates the holding in Gion-Dietz — prospectively. However, there is no public policy manifest in this enactment which restricts the application of that holding to claims preceding March 2, 1972." The Nevada County case clearly satisfied the Gion-Dietz criteria, the court ruled. "There was a considerable body of testimony from members of the public who used the canal side right of way that they did so in the belief the public a had a right to do so. The owner of the property during the pertinent period conceded he was aware of public use of the berm road and that it was his belief the public had a right to use the trail," Blease wrote. "The Gion-Dietz opinion plainly contemplates that ‘adversity' for purposes of implied dedication may arise as to recreational pedestrians in rural areas," Blease continued. The court also rejected the argument that the doctrine of prescription does not apply to a public entity, such as NID, which has an easement on the same strip of land. The public's use of the dirt road does not interfere with the district's easement, the court said. The court also ruled that a state law protecting a public entity's property rights (Civil Code §1007) does not apply in this case because "it has no application to the loss of rights of an underlying private owner." Finally, the court rejected Blasius' argument that application of Gion-Dietz was unfair because the Irrigation District easement prevented previous landowners from blocking public use. The court said Blasius did not prove this contention. "Indeed, on the practical plane, the Landowners' predecessor in interest presumably could have obtained the same agreement from NID to install the gates in issue before the lapse of the prescriptive period," Blease wrote. The appellate panel rejected a Friends of the Trails' appeal seeking an injunction to prevent the Irrigation District from barring public access. The court simply concluded that, "the judgement is binding on NID. They are precluded from maintaining there is no public easement as described." The court also upheld the trial court's award of attorneys' fees to Friends of the Trail. The Cases: Friends of the Trails v. Jon E. Blasius, Nos. C031330, C032253, 00 C.D.O.S. 1583, 2000 Daily Journal D.A.R. 2193, filed February 28, 2000. The Lawyers: For Friends: John Bilheimer, Haley & Bilheimer, (530) 265-5524. For Blasius, Eric Grant, Pacific Legal Foundation, (916) 362-2833. For Nevada Irrigation District: William Spruance, Minasian, Spruance, Baber, Meith, Soares & Sexton, (530) 533-2885.

Business owners, labor leaders and housing advocates have formed an alliance to promote a package of nine bills intended to ease the approval process for new homes near job sites. The bills would, variously, modify the California Environmental Quality Act, provide financial incentives to local governments, address liability hurdles to construction of condominiums, and even allow additional analysis of growth-control initiatives. The coalition has formed because of the affordable housing shortage in the Bay Area and other portions of the state. However, environmental groups argue that development interests are only using the housing crunch as an excuse to target regulations that have long been unpopular with builders. The package of housing bills is only a portion of the land-use legislation proposed at the Capitol. While few people expect lawmakers to pass dramatic reforms, incremental changes to housing, redevelopment, planning and environmental laws are likely. Significant bills include measures that would alter CEQA requirements, tie water availability to land-use planning, and allow development on wetlands. The collection of housing bills has the support of the strange bedfellows alliance that includes the California Building Industry Association, the California Chamber of Commerce, Rural Legal Assistance Foundation, Fannie Mae, and the California/Nevada Council of Operating Engineers. "The lack of affordable housing is causing problems in the job market," Chamber of Commerce spokeswoman Kathy Fairbanks said. "We've heard from companies, particularly in the Bay Area, who are having trouble finding employees because of housing costs." But Sandra Spelliscy, Planning and Conservation League general counsel, said builders are looking for excuses to decrease needed regulations. "Our message is that CEQA is not the problem causing the jobs-housing imbalance in this state. We're going to be very hard line on that issue," Spelliscy said. The package contains: o AB 2340 (Ducheny) and AB 2343 (Ducheny), which would modify CEQA to encourage infill housing. AB 2340 states that environmental laws should "recognize the importance of affordable housing in protecting the natural environment." AB2343 would reduce environmental review of certain infill housing projects of up to 200 units. o AB 2048 (Torlakson), which would give more property tax revenue to local governments to encourage housing development in job-rich areas, and employment in housing-rich locales. o SB 1789 (Rainey), which would require the Department of Toxic Substances Control to study obstacles to development of brownfields and recommend ways to maximize use of the sites. o AB 2041 (Dutra), which would encourage local agencies to spend more redevelopment dollars on very low-, low-, and moderate-income housing projects. o SB 1966 (Brulte), which would let a city or county refer an initiative petition to another local agency for a report on the initiative's impact on affordable housing. o AB 2112 (Dutra), AB 2139 (Pacheco) and AB 2632 (Calderon), all of which modify the dispute resolution system for settling construction liability disputes. Builders contend existing law discourages construction of condominiums and townhouses. o A budget augmentation by Sen. Richard Alarcon (D-Los Angeles) to expand California Housing Finance Agency homeownership programs. Caucuses, bills and budgets Approximately 150 other housing and urban growth bills have been proposed. Although February 25 was the deadline to introduce bills, many remained in spot form during March. Some analysts and even legislators indicate this will be the year a true discussion of smart growth and jobs-housing balance begins at the Capitol. However, significant legislation appears unlikely, in part because Gov. Davis has not made growth an issue, said the PCL's Spelliscy. Assembly members, led by Patricia Wiggins (D-Santa Rosa) and Fred Keeley (D-Santa Cruz), formed a Smart Growth Caucus last December. Thirteen Democratic Assembly members have participated in the informal group. The caucus has neither authored legislation nor indicated if it will respond to bills as a group. Still, said Dan Flynn, Wiggins' legislative director, "I suspect the caucus will want to have some sort of influence over the housing bonds that are proposed this year and over the budget." Gov. Davis's budget proposal does contain $86.9 million in new spending for housing. More than half of that money would provide down payment assistance for teachers. The early budget plan also contains a permanent, $15 million increase in the low-income housing tax credit, and $11 million for the new Multifamily Housing Program, which funds new and rehabilitated housing for seniors, disabled people, families moving off welfare and poor working families. And Senate Democrats have proposed that the budget contain another $250 million in housing spending. In a different critical area, the governor is scheduled to release a transportation plan in early April that could earmark at least $1 billion for projects and ask the Legislature to place a transportation bond on the November ballot. Earlier this year, though, the governor indicated he would not support a constitutional amendment, SCA 3 (Burton), to lower from two-thirds to majority the vote required to pass a local sales tax increase for transportation. Conflicting approaches to CEQA A CEQA bill that was a top priority of environmentalists remains alive from last year, SB 755 (Hayden). It would: eliminate increased revenue as the sole "overriding consideration" when unmitigated impacts are identified; require a master EIR for a series of smaller projects; ensure mitigation measures are timely implemented; and allow a city or county to reject a project if an applicant misrepresents the project. However, most of this year's CEQA bills carve out new exemptions. That is not abnormal, but, "this is probably a few more exemptions than usual," said Randy Pestor, consultant to the Senate Committee on Environmental Quality. Two bills, AB 1960 (Machado) and AB 2838 (Hertzberg), would exempt from CEQA a local agency formation commission's approval of city incorporation. The Commission on Local Governance for the 21St Century, which recently completed work, recommended the exemption. Hertberg's bill also contains other recommendations from the 21st Century Commission, including the requirement that counties adopt community growth plans. A bill by Senate President Pro Tempore John Burton, SB 1562, would limit analysis of proposed wetlands mitigation and restoration projects. The bill appears aimed at San Francisco Airport's proposed expansion into the bay. Senate Bill 1810 (Perata) would exempt vineyard planting from CEQA. Environmentalists in Napa and Sonoma counties have pushed for environmental review of new vineyards. Assembly Bill 2054 (Torlakson), which establishes a pilot program aimed at jobs-housing balance in the East Bay, would streamline CEQA "to facilitate desired development in selected areas." At least one new CEQA bill does not create an exemption. Assembly Bill 1807 (Longville) would require consultation with Caltrans during the environmental review process. {The following section was not included in the printed article} Other legislation of interest A sampling of other bills includes: o AB 1219 (Kuehl) – requires verification of water supply availability before approval of residential developments with at least 200 units. o AB 2310 (Ducheny) — allows residential and commercial development on degraded wetlands. The bill appears to allow development of the controversial Bolsa Chica project near Huntington Beach, which an appellate court largely blocked last year. o SB 510 (Alarcon) —places housing bonds totaling $980 million on ballots this fall and in 2002, 2004 and 2006. AB 398 (Migden) places a $750 million housing bond on the November ballot. o SB 89 (Escutia) — requires the California Environmental Protection Agency to implement environmental justice strategies. o SB 1277 (Hayden) — prohibits building any road through state parks. The measure blocks extension of the Foothill (241) Toll Road through San Onofre State Park in Orange County. o SB 1642 (Figueroa) — amends the housing element law. The Department of Housing and Community Development's failure to review a draft housing element or element amendment would serve as criteria for HCD funding to a city or county. o AB 2359 (Keeley) — establishes the Community Development Investment Guarantee Corporation in the State Treasurer's office to stimulate private investment in poor communities. o AB 2747 (Alquist) — requires the California Debt Limit Allocation Committee to direct more mortgage credit certificates to areas where at least 70% of families cannot afford a median-priced home. o AB 1968 (Wiggins) — authorizes cities and counties to enter into agreements to coordinate land-use planning on a regional basis. o SB 2113 (Burton) – extends the time limits on certain redevelopment projects. o AB 1544 (Calderon) — allows development of a shopping center on an unincorporated island within the City of Redlands. Gov. Davis vetoed a similar "Redlands doughnut hole" bill last year. o AB 1321 (Cardoza) — appropriates $130,000 for environmental review of the planned University of California, Merced, campus. o AB 1944 (Wayne) — makes it more difficult to remove farmland from Williamson Act protections. o AB 2364 (Keeley) — calls for a program to conserve farmland through use of mitigation and conversion fees paid when farmland is converted to nonagricultural uses. Contacts: Kathy Fairbanks, California Chamber of Commerce, (916) 930-1253. Sandra Spelliscy, Planning and Conservation League, (916) 444-8726. Randy Pestor, Senate Committee on Environmental Quality, (916) 324-0894. Dan Flynn, Office of Assemblywoman Patricia Wiggins, (916) 319-2007. Legislature website: www.leginfo.ca.gov For a list of other intersting land-use bills, please visit our website atwww.cp-dr.com.

A lawsuit challenging a county's decision on parcel status does not belong in federal court, even though the owners acquired the land through federal patents and acts of Congress, the Ninth Circuit U.S. Court of Appeals has ruled. "Federal land patents and acts of Congress do not provide bases for federal question jurisdiction," the unanimous three-judge panel ruled. Edward Virgin Sr. and his family claimed to own 1,240 acres in San Luis Obispo County. The holdings included seven parcels created by patents issued to the Virgins' predecessors-in-interest by the federal government, pursuant to acts of Congress in 1820 and 1862, and six parcels acquired pursuant to four other 19th Century acts of Congress. In 1993, the Virgins filed an application for a lot line adjustment to reconfigure the 13 parcels into eight lots. In April 1995, the San Luis Obispo County Subdivision Review Board denied the application and found the property amounted to only one parcel. The Virgins appealed to the Board of Supervisors, which also denied the application but found that the Virgins' property contained two parcels. The Virgins then sued the county in San Luis Obispo County Superior Court, seeking declaratory relief, an injunction and damages. In May 1997, the court concluded the Virgins' property consisted of four parcels and ordered the county to conduct a new hearing. After that hearing, the Board of Supervisors determined that the Virgins owned only four parcels, "which do not include the majority of plaintiffs' ownership of the land patents." Unsatisfied, the Virgins filed a complaint for declaratory and injunctive relief in federal district court in November 1997. A few months later, District Judge Audrey Collins dismissed the case because the federal court lacked jurisdiction. On appeal to the Ninth Circuit, the Virgins argued that two Supreme Court precedents, acts of Congress conferring the patents, and the Supremacy Clause all grant jurisdiction to the federal courts. The Ninth Circuit disagreed and said the Virgins' case belonged in state court. The two Supreme Court cases cited by the Virgins — Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974), and Packer v. Bird, 137 U.S. 661 (1891) — were not applicable, the court ruled. The Oneida exception is limited to federal interest in the possessory rights of Indian tribes, ruled the Ninth Circuit, which cited then-justice William Rehnquist's concurring opinion: " he grant of a land patent … carries with it no guarantee of continuing federal interest and certainly carries with it no indefinitely redeemable passport into federal court." The Packer case regarded whether a landowner's property extended to the high or low water mark of a stream and "neither the Supreme Court nor the Ninth Circuit has ever invoked Packer to create federal common law conferring federal question jurisdiction," the court ruled. In rejecting the Virgins' acts of Congress argument, the Ninth Circuit cited Shulthis v. McDougal, 225 U.S. 561 (1912), in which the Supreme Court established that "a controversy in respect of lands has never been regarded as presenting a Federal question merely because one of the parties to it has derived his title under an act of Congress." The Supremacy Clause did not apply because there was no federal statute that preempted county ordinance or state law. Moreover, all relevant cases "hold that acts of Congress granting federal land patents are not bases for federal question jurisdiction," the court ruled. The Case: Edward F. Virgin Sr. v. County of San Luis Obispo, No. 98-55557, 00 C.D.O.S. 357, filed January 13, 2000. The Lawyers: For Virgin: William S. Walter, Walter & Bordholdt, (805) 541-6601. For the county: Thomas F. Winfield III, Brown, Winfield & Canzoneri, (213) 687-2100.

The Interior Department is obliged to build an agricultural drain for land irrigated by the San Luis Unit of the Central Valley Project, the Ninth Circuit U.S. Court of Appeals has ruled. The 40-year-old San Luis Act called for a system in which water, after being used for irrigation, would drain to the Bay Delta. But the Interior Department never completed the drain, a situation that created the environmental crisis that killed or maimed thousands of birds at Kesterson Reservoir during the 1980s. A three-judge panel of the Ninth Circuit voted 2-1 to order the federal government to build the drain to the Bay or create an in-valley answer to the accumulation of brackish irrigation water. In a dissent, Judge Stephen Trott said the court could not force construction of the drain, and he urged Congress and the state to take action. Congress authorized the San Luis Unit to irrigate farmland in Merced, Fresno and Kings counties in 1960. The San Luis Act conditioned construction of irrigation facilities with the provision of a drainage system built by the state or the Interior Department. The state declined to construct the master drain, so the Interior Department in 1962 said it would make provisions for the drain to the bay. The project began delivering irrigation water to the Westlands Water District in 1967, and construction of the drain commenced the following year. The middle 40% of the 200-mile-long drain to the Bay Delta had been complete by 1975, when the federal government suspended the project because of public "concerns." At that time, the drain discharged 7,300-acre-feet of water into Kesterson Regulating Reservoir, which was never intended to be the end point. In mid-1983, studies found that waterfowl nesting at Kesterson were deformed and dying, likely because of a selenium concentration. Because of the environmental disaster at Kesterson, the federal government plugged the interceptor drain in 1986. But the government continued its delivery of irrigation water, which has led to the deterioration of low-lying farmland. Landowners inside and outside the San Luis Unit service area sued the Interior Department to force completion of the drain. The lawsuits were partially consolidated in May 1992, and a district court eventually issued a partial summary judgement saying that the Interior Department had to provide drainage service to lands receiving San Luis water. After the judgement was issued, the Interior Department argued that changes in the law and environmental knowledge made compliance with the San Luis Act impossible and excused the federal government from completing the drain. After a 1994 bench trail, District Judge Oliver Wanger ruled for the landowners. He said the federal government must provide the drainage service and it should pursue a discharge permit from the California Water Resources Control Board. The Interior Department appealed and was joined by Contra Costa County, the Contra Costa Water Agency, the Contra Costa Water District, the National Resources Defense Council and The Bay Institute, all of which were concerned about the affect of agricultural drainage on the Bay. They argued that the San Luis Act only authorized construction of a drain, but did not require one, and that riders in Congressional appropriation acts since 1965 had repealed the duty to provide the drain. The court majority disagreed. The San Luis Act said that if the Interior Department chose to build the unit, it must also provide the agricultural drain, Chief Judge Procter Hug Jr. wrote. "The discretion contained in this authorization is limited to the decision whether to construct the unit. The very next sentence of the statute specifically defines which ‘principle engineering features' are to be included in the ‘unit' (if the unit is constructed), and it thus denied the Secretary discretion as to what constitutes the San Luis ‘unit.'" The court interpreted the appropriation language to mean that a final point of discharge could not be determined until the Interior Department and the state agreed on a plan to protect water quality. "Congress merely placed a condition on the determination of the final point of discharge; by no means did it excuse or repeal the Secretary's obligation to provide drainage," Hug wrote. The court, however, reserved the lower court's ruling that the Interior Department must get a state water discharge permit. "Although the district court can compel the Department of the Interior to provide drainage service as mandated by the San Luis Act, the district court cannot eliminate agency discretion as to how it satisfies the drainage requirement. … Now the time has come for the Department of the Interior and the Bureau of Reclamation to bring the past two decades of study, and the $50 million expended pursuing an ‘in valley' drainage solution, to bear in meeting its duty to provide drainage under the San Luis Act," Hug wrote. In his dissent, Trott disagreed with majority's interpretation of the Act and of appropriation language. He said the Act only authorizes, but does not require, construction of a master drain. He also said Congress has blocked construction of the drain "in nearly every appropriations bill for the Bureau of Reclamation for 30 years." Trott concluded there was little the court could do. "The thorny problem of what to do with the noxious effluent is not readily susceptible of a solution that the parties with competing interests will find acceptable. In fact, the question in search of an answer has become a political question beyond our ability, competence, and authority to resolve," Trott wrote. The Cases: Firebaugh Canal Co. v. United States, Nos. 95-15300, 95-16661, 00 C.D.O.S. 955, 2000 Daily Journal D.A.R. 1391, filed February 4, 2000. The Lawyers: For Firebaugh: William M. Smiland, Smiland & Khachigian, For the U.S.: Jeffrey Dobbins, Department of Justice Environmental and Natural Resources Division, Washington D.C., (202) 514-2000.

In one of its rare published opinions, the Fifth District Court of Appeal rebuked the City of Fresno and a developer for violating the California Environmental Quality Act. Specifically, the unanimous three-judge appellate panel rejected the argument that the court cannot require an environmental impact report because the disputed project was built during litigation. "The corporation apparently made a calculated business decision to go forward with the project in spite of protests by residential neighbors, and pending litigation," Justice Rebecca Wiseman wrote. "Now the corporation must live with the consequences of its financial choice. We affirm the trial court's decision ordering an EIR be prepared. To the City of Fresno and the corporation we say: It is never too late." At issue is a car wash in a strip commercial center at North Cedar and East Nees avenues. The Fresno City Council approved the commercial development � with the exception of a proposed service station, mini-mart and automatic car wash � in August 1996. The developer sued over the exceptions, and some homeowners sued over project approval. Both of those suits were settled, with the developer winning approval of everything besides the car wash, and neighbors winning some mitigations. In August of 1997, Garreks, Inc., applied for a conditional use permit for an automatic car wash on a 0.9-acre parcel in the commercial center. After several public hearings, extensive public protest and completion of a noise study by a Garreks consultant, the Planning Commission approved the conditional use permit on January 7, 1998. The City Council declined to review the decision. The Woodward Park Homeowners Association (WPHA) filed a lawsuit challenging the city's approval of the project and asking the court to order an EIR. On July 30, 1998, Fresno County Superior Court Judge Lawrence O'Neill ruled for the homeowners. He ordered the city to complete an EIR focused on architectural and aesthetic impacts, void adoption of the negative declaration, and rescind project approval. Before O'Neill ruled, however, Garreks went ahead and constructed the car wash, with the city's consent. On appeal, Garreks and the city argued that the case was moot because the car wash was built and operating before O'Neill's ruling. They said an EIR would serve no purpose. The court strongly disagreed. "The City's argument is not only against public policy, it is absurd," Justice Wiseman wrote. In fact, she continued, the court can still provide homeowners with relief. "As recognized by WPHA, a decision upholding the court's order directing the preparation of an EIR could result in modification of the project to mitigate adverse impacts or even removal of the project altogether," she wrote. "It would hardly be sound public policy to allow a party to avoid CEQA by continuing with construction of a project in the face of litigation, delaying preparation of a court-ordered EIR pending appeal, and then arguing the case is moot because the project has been completed," Wiseman wrote. The justice continued, "Apparently the City and Garreks buy into the philosophy of the mythical captain of the Starship Enterprise, James T. Kirk, who said: �May fortune favor the foolish.' We do not. Garreks' decision to complete and operate the project, despite the pending litigation, in no way provides for an exemption to CEQA." The court also rejected the city's argument that because it had amended the municipal code regarding car washes since the trial court ruling, homeowners could no longer make a fair argument that the project may cause a significant effect on the environment. The court said allowing the city to change its code after the fact "would be laying a foundation for great abuse." Robert Rosati, the WPHA lawyer and a member of the group, explained that although noise was a major concern, the trial court decided the case on a narrower technical issue involving the Fresno Municipal Code in place at the time of project approval. In the unpublished portion of its opinion, the Fifth District upheld the trial court decision. The municipal code required car washes to be part of a unified shopping center of at least five acres. But this 9.42-acre shopping center had been chopped into numerous smaller parcels, including a 0.9-acre lot for the car wash. The municipal code required such projects be at least 300 feet from residential districts. But the trial court ruled the city violated the municipal code by measuring from a residential property line rather than the center of the street, which was only 247 feet from the project. The municipal code also required the car wash be of uniform design with the rest of the shopping center. But the city had no provision for ensuring such architectural integration, and that alone was basis enough to argue that the project may have a significant effect on the environment, the appellate court said in the unpublished part of the opinion. Rosati said the association will insist on a shuttering of the car wash while the EIR is being prepared. The Case: Woodward Park Homeowners Association v. Garreks, Inc., No. F0322200, 00 C.D.O.S. 614, 2000 Daily Journal D.A.R. 981, filed January 20, 2000. The Lawyers: For WPHA: Robert Rosati, (559) 256-9800. For Garreks: Walter Whelan, (559) 437-1079. For City of Fresno: Robert Gabriele, assistant city attorney, (559) 498-4774.

A five-county "Inter-Regional Partnership" between the Bay Area and the Central Valley is taking more tangible form. The Partnership will ask the Legislature this year for a pilot project to designate housing and job "incentive zones" — similar to enterprise zones — that would include a re-distribution of existing property tax revenue and streamlined environmental review to encourage better jobs-housing balance. The Partnership is also seeking $625,000 in state funding to integrate computer mapping throughout the five counties, thus permitting more accurate mapping of job centers and housing centers. "We have to coordinate our efforts better," said Contra Costa County Supervisor Mark DeSaulnier, one of the founders of the Inter-Regional Partnership. "We have to get local governments to understand the convergence of land-use issues." The proposed legislation, which will be carried by Democratic Assemblyman Tom Torlakson, a former Contra Costa County supervisor, will also formalize the Inter-Regional Partnership's legal status. Torlakson's bill will probably propose that the IRP be created as a joint entity of the three councils of governments in the affected area — the Association of Bay Area Governments and the San Joaquin and Stanislaus county COGs. The IRP would be created either as a joint-powers authority or through a memorandum of understanding among the three COGs. DeSaulnier said that formalizing the IRP does not represent creation of a new level of government. "You already have regional government," he said. "It's just a question of making it work." The Inter-Regional Partnership was formed two years ago by elected officials from five counties affected by an imbalance of jobs and housing — Santa Clara, Contra Costa, and Alameda in the Bay Area, and Stanislaus and San Joaquin in the Central Valley. These five counties are all part of a major cross-commuting pattern centered on the Altamont Pass, which separates eastern Alameda County from San Joaquin County. The IRP's forecasts predict that the three Bay Area counties will produce more than 800,000 jobs but only 300,000 houses in the next 20 years. As a result, the number of commuters traversing Altamont Pass is expected to grow from 100,000 to 250,000 per day during this period, according to IRP planners. Staffed by the three COGs, the IRP up to now has served as a "watering hole" for jobs-housing balance issues in the two regions. (Though almost 69 local governments are located in the five counties, only 15 are officially part of the IRP, including all five county governments.) Participants say the likely creation of a formal entity reveals that officials from the five counties have built a certain level of trust. "We were sword-fighting and fist-fighting at first," said Don Bilbrey, mayor of Tracy, a fast-growing city in San Joaquin County. "But since then, there's been an evolution. We have identified regional problems and difficulties, so understanding and respect has grown." One measure of success: San Mateo County, which includes the northern end of job-rich Silicon Valley, recently sought to join the group. But IRP leaders asked the county to hold off, claiming that they wanted to maintain the IRP as a "pilot" program. In addition to the legislation, the IRP recently surveyed the 69 local jurisdictions in the five counties to determine how many are pursuing jobs-housing balance policies. Of the 30 jurisdictions that have responded so far, 23 were completing an inventory of vacant lands, 17 were studying higher densities, and 16 sought to attract employers that match the skills of the area's work force. Half of respondents had established urban growth boundaries. In most cases, Alameda and Contra Costa County communities appeared to be ahead of the other counties in adopting sophisticated planning and economic development instruments. The most interesting idea to emerge from the IRP is the concept of jobs and housing "incentive zones" that would receive tax and regulatory breaks in the same fashion as enterprise zones. The Partnership is asking the Legislature to pass a bill permitting the designation of 5 to 10 such zones of various sizes, scattered around the region. According to a draft prepared by IRP staff in February, the zones would be between 50 and 250 acres apiece, would contain significant vacant or underutilized land, and would provide either jobs or housing, depending on which is more needed in the area. The sites would be eligible for a slew of special incentives, including the following: o Delivery of all 100 percent of property tax revenues generated within the zone to the city or county containing the zone, rather than splitting revenues among all taxing entities. o Streamlined environmental review within the zone under the California Environmental Quality Act. o Priority for low-income housing tax credits, funds from the state infrastructure bank, and similar discretionary state funding sources, much like proposals made by State Treasurer Phil Angelides in his "Smart Investments" strategy. (See CP&DR October 1999.) o Brownfield-style loans for up-front planning and environmental evaluation of the sites. All these ideas have been kicking around Sacramento — mostly in other contexts, such as reform of the state-local fiscal system and the Angelides proposal. It is unlikely that all would pass. However, Torlakson, who is also chair of the Assembly Select Committee on Jobs-Housing Balance, said he is confident because of what he heard when the select committee took testimony around the state last year. "I think this will resonate across the state," says Torlakson. "I see similar problems all across the state." The state's IRP program would be considered a pilot program that would last for three years, with the IRP submitting a final report on the experiment to the Governor's Office of Planning and Research no later than 2004. Participants acknowledge that the Central Valley communities will be receptive to job creation in their communities, while the notion of adding more housing may meet resistance in the Bay Area. At the same time, however, it is not clear how quickly employers will consider moving from the Bay Area over the Altamont Pass into the San Joaquin Valley — especially the Silicon Valley computer companies. These companies have expanded rapidly in the Sacramento area, where an educated workforce and perceived high-quality lifestyle are draws. But they have been slow to move into the counties further south, even though many of their employees currently commute from those counties. For example, Carl Guardino, president of the Silicon Valley Manufacturers Group, said his organization is not focused on job creation in the Central Valley at present and has not been monitoring the IRP process closely. The organization, composed of Silicon Valley's biggest computer companies, is an aggressive lobbyist for more housing and better transportation within Santa Clara County and between Silicon Valley and the Central Valley. To the employers, he said, the most important element in location decisions is "access to a talented work force." Nevertheless, IRP leaders remain confident simple economics will drive Silicon Valley employers "over the hill" sooner or later. "The job generators understand how successfully they have been at developing jobs," Bilbrey said. "There is a demonstrated cost savings to these companies of up to 30%." Bilbrey's city, located at the base of Altamont Pass, is often depicted as a prime example of rampant residential growth in the Valley. After a lull in the early and mid 1990s, Tracy is now seeing construction of about 1,500 homes per year, he said. A citizen initiative, scheduled for the March ballot, would cut that number in half. Bilbrey and his City Council colleagues oppose the initiative. Contacts: Mark DeSaulnier, Contra Costa County supervisor, (925) 646-5763. Don Bilbrey, mayor, City of Tracy, (209) 831-4103. Carl Guardino, Silicon Valley Manufacturing Group, (408) 501-7864. Tom Torlakson, assemblyman, (916) 319-2011. Gary Binger, deputy executive director, ABAG, (510) 464-7902.

The cities of Lancaster and Palmdale have agreed to bury the hatchet — and, for once, not in the other jurisdiction's back. Early this year, both city councils adopted "anti-piracy" resolutions in which they pledged not to offer incentives to businesses located inside the other's borders. For years, the two cities have engaged in classic battles over retail businesses. But some recent changes on the Palmdale City Council and the business community's leadership appear responsible for the removal of the "Cactus Curtain" along Avenue M, which separates the two cities. "They would steal from us and then claim we were stealing from them," Lancaster Mayor Frank Roberts said. "We just got really tired of it. This was a big mess for years and years and years." The mess was partly responsible for the Legislature's passage last year of a measure (AB 178) intended to prevent cities from luring a neighboring jurisdiction's large retail store or automobile dealership. The measure, co-authored by Republican Assemblyman George Runner — a former Lancaster mayor — allows for sales tax-sharing agreements in cases where a retailer does relocate. Runner also authored legislation last year that implemented 1998's Proposition 11, which allowed jurisdictions to share sales tax revenues with a super-majority vote of the elected body, rather than requiring an election. Roberts said he and Runner worked on the same issues years ago when they were colleagues. But Roberts was unsure that the legislation was adequate to halt the Lancaster-Palmdale rivalry, so he sought the anti-piracy resolution. Relations between the two cities were sour as recently as last summer, At that time, representatives of Costco, which wanted to expand the Lancaster store, made it known that Palmdale city officials had offered a free building and free land if Costco would relocate. Palmdale officials deny they ever made such an offer, but the Lancaster City Council refused to believe the denial and fought to keep the sales tax-generating Big Box. By September, the Lancaster City Council had approved a $3.9 million plan in which the Lancaster Redevelopment Agency would buy an empty shoe store and restaurant next to Costco and a 99-Cent Only Store that remains in business. The city plans to level the empty stores and lease the site to Costco for $1 a year. The city would sell the other building to Costco for $1. The city apparently will need to exercise eminent domain to get the 99-Cent Only Store, which is not interested in moving from its two-year-old location. Palmdale Vice Mayor Shelly Sorsabal said the incident was simply a matter of a business playing one city off another. "We weren't even trying to get Costco. But because we have such a history, the retailer can say whatever they want," Sorsabal said. "They have constantly courted Costco," retorted a still-suspicious Roberts. "They held $5 million in check and said anytime you want to come over from Lancaster, it's yours." In the past, Palmdale has enticed other retailers to leave Lancaster — and vice-versa — and both sides know that retailers have used the competing municipalities for bargaining leverage. "In fact," noted Lon McCracken, of the Greater Antelope Valley Chamber of Commerce, "there has been a fair number of retail establishments who have moved from one city to another." But Sorsabal contended those days are history. "To spend millions of dollars to lure one business to move five miles is ludicrous," she said. These days, the lines of communication are open, said Sorsabal. If she or her staff hears a rumor, she picks up the telephone and calls a colleague on the Lancaster City Council. "We think those days of a cantankerous relationship that have occurred are over," said Stafford Parker, Lancaster Redevelopment Agency Executive Director. The two cities worked jointly on the anti-piracy resolution, which, Sorsabal said, "sets a precedent" for the city managers and economic development directors. Added Lancaster Mayor Roberts, "City managers are generally into the competitive mode a lot more than the rest of us." Roberts said the written resolution, which both city councils approved unanimously, is important because past oral promises were quickly forgotten. "It's clear that the old guard is out and the new guard is in," said McCracken, chairman of the Greater Antelope Valley Chamber. The organization formed in mid-1998 in response to the division between the two cities. "There are bigger fish to fry than each other. There are a whole lot more businesses outside the Antelope Valley that we need to get." Both cities have extensive economic development programs, and neither side apologizes when it comes to competition for businesses from outside the area. The cities became increasingly aggressive during the 1990s as the aerospace industry eliminated thousands of jobs in the Antelope Valley. Both cities have extensive enterprise zones that offer tax breaks for businesses that purchase equipment and add workers. In December, Palmdale celebrated the announcement from SR Technics, an offshoot of SwissAir, regarding the opening of an aircraft maintenance and repair facility this year. The SR Technics shop will employ about 1,000 people by June and as many as 6,000 people within five years. That news offset probable layoffs at the Lockheed Martin factory, where state-of-the-art spy planes are built. Up to 800 people could lose their jobs at Lockheed Martin, the Antelope Valley Press has reported. In Lancaster, Rite-Aide opened a 1 million-square-foot distribution center that continues to add about 20 employees a week, said the Redevelopment Agency's Parker. Michaels Arts & Crafts also opened a distribution center with 320 workers, and room to expand, in Lancaster last year. And both cities continue to experience retail growth, with Palmdale getting a Lowe's home improvement center, a Dillard's department store and two Marriott hotels, and Lancaster seeing a new 22-screen Cinemark theater. Contacts: Shelly Sorsabal, Palmdale vice mayor, (661) 267-5100. Frank Roberts, Lancaster mayor, (661) 723-6019. Stafford Parker, Lancaster Redevelopment Agency executive director, (661) 723-6128. Lon McCracken, Greater Antelope Valley Chamber of Commerce chairman, (661) 942-0466.

I recently had one of those "aha!" moments that gives us special insight into the deeper nature of things. The magic moment came during a recent exercise in home buying, when I was fluttering back and forth between two different houses on two different streets. One house stood on a street with sidewalks and gutters, while the second house stood on an equally nice street, or nearly so, but without sidewalks. I assumed that the house with sidewalks would cost more because of the added amenity. My real estate agent set me straight, however: Homes without sidewalks usually command higher prices because they look more suburban, less accessible, and possibly just a teensy bit more exclusive. In other words, the less usable the street appears — that is, the less convenient for outsiders — the more attractive it is to homebuyers. That trivial insight came back to me when I examined the framework plan for Southport, a 7,000-acre planning area in the City of West Sacramento. The plan is sedulously suburban, and radically grid-free: There is nary a straight street in sight, nor one street that is parallel to another. Most of the residential streets are cul-de-sacs. The housing, according to the current fashion, is arranged in separate "villages," each with its own neighborhood shopping center. Although the plan is the work of an experienced site planner — Steven Kellenberg, who prepared the first version of this plan in 1995 when he worked for PBR Consultants of Irvine, and who is currently with the Orange County office of EDAW Inc. — the plan at first glance looks like a jumble: some farmland here, some industrial there, clumps of housing here and there. Much of the map is taken up with a no-man's-land called "estate housing" or "rural residential." This plan gave me pause, and then some doubts about my pause: First off, why would anybody choose to develop a plan that stressed the separation of communities, rather than connectedness? Is the planner subscribing to a largely discredited approach to urban planning? Or has my way of looking at plans grown too rigid, insisting on the verities of the New Urbanism where they are not warranted? The fact is, West Sacramento wants to build a high-quality, upscale suburban community. They city has selected both the designer and the community prototypes it thinks most appropriate. I guess it is easy for some people to be condescending and view West Sacramento as a working-class city that wants to turn itself into a fancy suburb. To tell the truth, the city has never been one of those laid-back, "honey-while-you're-up-could-you-fix-me-another-mimosa" kind of places. Southport itself is an agriculture area immediately south of the Port of Sacramento. The area is almost an island, separated from the rest of the region by the Deep Water Ship Channel on the west, the Barge Canal on the north and the Sacramento River on the east. Much of Southport is a greenfield (that is, a previously undeveloped site) and a portion will remain farmland. In short, Southport is the empty canvas on which West Sacramento can paint a new picture of itself as an attractive, middle-class Edge City of the Information Age. The city does not want urban housing, thank you very much. What it wants, dammit, is romance. West Sacramento wants you to buy a house where you can look out at a field of strawberries from your front yard, and see big, squire-like houses on two-acre lots from the back. It wants a sense of order that comes from regular rows of crops, and the hint of country living that come from the winding roads that run along expansive estates. In short, it wants Orange County. In defense of West Sacramento, the aforementioned is a popular style of life in California and elsewhere, and the urban village formula has proven to be a bankable one. In going this route, the city passed over well-established New Urbanist masters, including Andres Duany and Elizabeth Plater-Zybek, and Peter Calthorpe, to choose an Irvine-based firm with plentiful experience in designing master-planned communities in the Big Orange. The designers propose four separate "villages" of differing character and density. This scheme fulfills the city's policy, articulated in the 1992 housing element, to "attract a greater diversity of housing types." The positive aspect of this approach is that the villages will provide an intimate, pedestrian-oriented way of life. But pedestrian-oriented or not, the villages appear placed in arbitrary locations. They float inside the site plan of Southport like the organelles of a cellular organism. But what is so bad about irregularity? Am I merely having a knee-jerk reaction because the site is not a Calthorpe-style grid? Maybe. And why, indeed, should all site plans be forced to submit to the tyranny of the grid? Both natural land forms and man-made conditions should dictate where streets and other facilities may be located. That said, a number of decisions in Southport appears less motivated by existing conditions, and more by a desire to create intriguing overlaps between farmland, estate housing and medium-density housing. That may be picturesque. Problems may occur, however, when Southport becomes more densely populated, and the very limited circulation options become inconvenient, as they have in Orange County. Additionally, I am bothered to see that several of the greenbelts mentioned in the plan are actually for large-lot residential, which is exactly the unconstrained type of development that greenbelts were invented to avoid. I am sympathetic with the goal of creating nice housing and clean industry in Southport. I am unconvinced, however, that Orange County is the right model for the long term. The feeling of exclusivity and living within a separate realm seems attractive. In a few years, however, when density arrives, the same planning ideas that gave you rural charm can give you congestion and inflexibility. But that's an "aha!" that West Sacramento will have to experience for itself.

The California Supreme Court has directed the Fourth District Court of Appeal to vacate a 1999 ruling in which the City of Riverside's requirement that poolrooms be closed from 2 a.m. to 6 a.m. was declared unconstitutional. In January 1999, a Fourth District panel ruled 2-1 that the Riverside ordinance violated poolroom owners' equal protection rights. (See CP&DR Legal Digest, March 1999.) The court said the city's law, which the owner of Mr. Cue's Family Billiards challenged, was "arbitrary and discriminatory" because there was no reason to single out poolrooms from other all-night businesses. The city said it sought to restrict poolroom hours to protect public safety. The state Supreme Court granted the city's petition for review. But in January of this year, the court transferred review back to the Fourth District with directions to vacate its decision and to reconsider the case in light of the state high court's August 1999 ruling in Warden v. State Bar, (1999) 21 Cal.4th 628. In Warden, the court ruled 5-2 that the state's mandatory continuing legal education (MCLE) program — which exempts certain categories of licensed attorneys, such as elected officials, retired judges and full-time law professors — does not violate the equal protection rights of California lawyers. The court first ruled that the lesser "rational basis" test applied, not the "strict scrutiny" test that is required to protect a fundamental right under the state and federal constitutions' due process clauses. The court then said it could not be argued that that the MCLE exemptions were not determined on some rational basis. In deciding the poolroom case, the appellate court majority ruled that Riverside's ordinance failed the rational basis test, a conclusion not shared by Justice James Ward, who filed a lengthy dissent. The case is Estevanovich v. Riverside, S077146, E018016.

Large-scale urban development will soon replace the San Bernardino County Dairy Preserve. Last December, the city of Ontario completed its annexation of more than half of the 15,000-acre swath of farmland, and the City of Chino either has annexed or plans to annex the remainder. Ontario's plans for what the city has tabbed the "New Model Colony" call for development of 31,000 homes, 5 million square feet of retail space and 5 million square feet of industrial space. The annexation of 8,200 acres increased the city's size by one-third to 49 square miles. Chino finished annexing about 1,500 acres in May 1999, and city officials are now in the early stages of master planning 5,500 neighboring acres, which the city intends to annex in the near future. Because of flooding concerns, Chino's development plans are not as aggressive as Ontario's. Still, Chino earmarked hundreds of acres for industrial development and could zone up to 2,000 acres for new residences. Although Ontario and Chino officials have reviewed each other's plans, and major thoroughfares are proposed to connect the two towns, the cities have not coordinated their planning efforts. And critics say Ontario's land-use plan is simply "more of the same." The San Bernardino County Dairy Preserve — often called the Chino Ag Preserve — has been the heart of the Southern California diary industry for decades. According to 1997 state Department of Food & Agriculture figures, San Bernardino was the number three dairy producing county in the state (after Tulare and Merced counties) with $440 million in annual production. However, rapid urban development in San Bernardino, Los Angeles and Riverside counties has surrounded the dairy preserve, and about half of the 400 dairies have moved during the last 10 years. "It's been the focus of decades-long controversy, with environmental interests, development interests, agricultural interests and municipal interests all in competition," said James Roddy, San Bernardino County Local Agency Formation Commission executive officer. During the 1980s, San Bernardino County officials promoted the continuation of agriculture in the area, Roddy said. At the same time, the county, Chino and Ontario bickered over spheres of influence, with both cities attempting to assert control over the entire preserve. During the early 1990s, county officials concluded that agriculture should be phased out, so LAFCO began a series of studies to determine spheres of influence, Roddy explained. In the end, Ontario got the bulk of developable land. In January 1998, Ontario adopted a general plan amendment and environmental impact report for the 8,200-acre New Model Colony, which lies south of the Pomona (60) Freeway and west of Interstate 15. The plan spreads about a dozen neighborhood centers across the area, with larger commercial centers surrounded by high-density residential uses at the east and west ends. Village greens crisscross the area, and there will be a town center near the middle. The majority of land will go for single-family homes, which could be developed at 4.6 units per acre, but the plan does mandate a mix of housing types, said James Ragsdale, the city's project manager. The city hopes to get some higher-end homes, of which it currently has few. To accommodate the projected 500,000 daily vehicle trips at buildout in 2030, the city proposes three north-south parkways of six or eight lanes each, connecting with the 60 Freeway, and one six- or eight-lane east-west parkway connecting the large commercial centers and Interstate 15. The neighborhood centers make bus service, which could tie to the nearby Metrolink train, a strong possibility, Ragsdale said. There will be pedestrian links to neighborhood centers and schools, and the town center will favor walkers, he added. The city is preparing a public facilities implementation program, which will include financing plans and development fees. Once that is complete later this year, development may commence. Initiating development will be expensive because the area has almost no infrastructure, Ragsdale warned. The Sierra Club and the Endangered Habitats League sued Ontario, claiming the city's plan lacked an adequate traffic impact analysis, and did not mitigate the loss of biological and agricultural resources. The city won the lawsuit, but environmentalists have appealed. Endangered Habitats League Executive Director Dan Silver said Ontario deserves credit for planning activities centers. But, he said, the plan ideally would contain denser development in those centers, more open space and agriculture other than dairies. Also, all area jurisdictions, including Riverside County, should plan for more employment centers and transit-oriented development, Silver said. Chino's cut of the former dairy preserve lies south of Ontario's New Model Colony and northeast of the Corona (71) Freeway. Much of the 1,500 acres Chino annexed last year is constrained because it lies below the top of Prado Dam, a nearby Santa Ana River flood-control project. Nearly 900 acres at elevations below the existing dam height are designated for open space, said Chuck Coe, Chino community development director. (Orange County, which lies downstream, is responsible for acquiring land or flooding rights.) Another 320 acres are below the elevation of the planned 10-foot extension, and that property is zoned for agriculture, including the continuation of dairies. The northernmost 600 acres are set aside for industrial development, probably in the form of distribution centers, warehouses, light manufacturing, and business parks. Exactly how the city will designate the 5,500 acres it intends to annex in a couple years remains underdetermined, Coe said. A significant portion lies below the Prado Dam flood line, and two prisons and Chino Municipal Airport — all nearby — are other considerations. Still, Coe expects the city could make available up to 2,000 acres for residential development. "We're running out of residential property in the city proper. The City Council and the staff sees a tremendous opportunity to accommodate a master-planned community. This is a chance to have residential uses with a high standard," Coe said. The city is working with consultants and reaching out to the public in a process akin to a general plan update, with focus group meetings, field trips and website updates. A large regional park in areas subject to flooding is one possibility, Coe said. "This is going to have a significant effect on the form of this community for years to come," said Coe, noting that the two annexations will increase Chino's size by nearly three-quarters. While people prepare to move into the dairy preserve, the cows are heading north to the San Joaquin Valley. In February, the Kings County Planning Commission approved plans for four giant diaries between Hanford and Corcoran. J.G. Boswell Co. plans to put up to 47,000 cows on 6,000 acres. Kings County originally approved the diaries in January 1999, but the Center on Race, Poverty and the Environment sued to force preparation of an EIR because of concerns over water and air pollution, insects and odors. The county completed an EIR and reapproved the project. Plans for a 28,000-cow dairy in Kern County, near Bakersfield, have received stiff opposition from residents in recent months. Contacts: Chuck Coe, Chino Community Development Department, (909) 591-9812. James Ragsdale, Ontario Planning Department, (909) 391-2506. James Roddy, San Bernardino County Local Agency Formation Commission, (909) 387-5866. Dan Silver, Endangered Habitats League, (323) 654-1456.

With more funding headed its way and a stated emphasis on protection of natural resources, the California Coastal Commission appears to be tightening its control over development. Gov. Davis's proposed budget contains more money for enforcement and assisting with Local Coastal Plan implementation. Davis also replaced Coastal Commissioner Nancy Fleming, the pro-development mayor of Eureka, with Humboldt County Supervisor John Woolley, an appointment that pleased environmentalists. Commissioners named Sara Wan, a former Malibu mayor and a reliable vote for the environment, chairwoman for a second year. Developers continue to have a rough time with the panel. In January, the commission appealed a Mendocino County Superior Court order allowing a controversial Fort Bragg hotel to open. That same month, the commission blocked at least temporarily an 81-unit Santa Barbara condominium project. Also, the commission agreed to undertake the first-ever review of a county's Local Coastal Plan — the San Luis Obispo County LCP — because of development pressures. Except for a short period in 1996, when Republican Curt Pringle was Assembly speaker, the majority of the 12 coastal commissioners has always been Democratic. (The governor, the speaker and the Senate president pro tempore each make four appointments.) In 1996, "our job was to keep from driving the program off a cliff," recalled Peter Douglas, longtime Coastal Commission executive director. At that point, Douglas, who helped draft the Coastal Act initiative of 1972, was the target of an unsuccessful Republican ouster attempt. Now, he said, "we have a commission of smart, intelligent commissioners who are really engaged in this. … This is the finest collection of hearts and minds we've ever had on the commission." But development interests characterize the panel differently. Fred Gaines, a Woodland Hills attorney who has represented many coastal landowners, said the commission has become more difficult during the last year. "The Coastal Commission is as pro-environment and as anti-property owner as it has been in a long time. The Coastal Commission has never been kind to property owners, but there used to be more of a balance," Gaines said. The newest commission member, Woolley, is a 30-year resident of Manila, an unincorporated community of 1,000 on Humboldt Bay. As a local activist, he worked with the Coastal Conservancy to turn a former Manila lumber mill into a 100-acre park and community center. The first-term county supervisor said developers deserve a level of certainty, but commission decisions should consider public access to the coast. "We should not turn a blind eye toward development. We should help it along where it is appropriate," added Woolley, whom Davis appointed in December. Woolley is only the latest appointee with a community activist background. Among Davis's appointees last year was Christina Desser of the Migratory Species Project. These former activists often provide a friendly audience to people who question development during hearings, development proponents say. The Davis administration has proposed a modest increase in Coastal Commission funding to $16.1 million for the 2000-01 fiscal year. The governor's budget contains $900,000 for enforcement and compliance with the Coastal Act, including funds for researching prescriptive rights of public access. The budget also includes more money for Local Coastal Plan implementation. About one-third of jurisdictions along the coast still do not have an approved LCP, even though the plans were due 19 years ago. The Davis budget reverses the trend under the Wilson and Deukmejian administrations. "The governor has been very aware of the 16 years of cuts to this program and the devastating impact that has had," Douglas said. "We just got a geologist for the first time in 10 years, when so much of our work deals with geology." Recent commission decisions suggest it is as difficult as ever to receive development approval from the panel, which decides projects outside LCP boundaries and appeals of decisions within LCPs. For example, the commission appealed a trial court order favoring the developer of the North Cliff Hotel in Fort Bragg. City and state officials contend the 35-foot-tall structure blocks ocean views. The case offers proof of the commission's increasing interest in protecting visual resources. "The commission has taken a stand that views from public lands, and that includes state waters up to three miles from the coast, are an important resource," Douglas said. Oftentimes, this approach conflicts with gigantic homes proposed in remote areas, for which the commission gets more and more applications. The landowner wants the best view, which makes the structure more prominent. Commission staff and members, however, are skeptical of such plans, Douglas said. In the latest Santa Barbara coastal controversy, the commission voted 7-3 to delay a decision on Entrada de Santa Barbara, an 81-unit time-share condominium and retail project on State Street. The commission raised questions about traffic, the displacement of poor residents, loss of views and setbacks from riparian areas. The commission asked for more information and analysis — despite a staff recommendation of approval and outspoken project support from the Santa Barbara City Council. Even previously approved projects are struggling to advance. Last September, the commission dealt a setback to the Sterling Center project in Sand City. In 1994, the commission permitted a 136-room hotel, restaurant and conference center at the site. However, because the original developer never acted on the permit, an extension was sought. The commission declined to grant the extension because conditions had changed since 1994. Commissioners said that dune habitat is now seen as more valuable; the western snowy plover, which lives in the area, has been listed as endangered; the project's water supply is uncertain; and Sand City has acquired an adjacent parcel, which it wants to develop. Sterling Center marked the second defeat in less than a year for Sand City, which has unsuccessfully advocated coastal development inside its redevelopment project area for two decades. Last May, the commission postponed a decision on the 495-unit Monterey Bay Shores resort until the developer could prove that domestic water is available. The commission also demanded more studies on impacts to species, dune habitat and circulation. "The new Coastal Commission is one of the toughest Coastal Commissions that we have ever come across," said Kelly Morgan, city administrator in Sand City. Still, not all environmentalists are convinced the commission is doing enough to protect natural resources. Mark Massara, of the Sierra Club's California Coastal Program, pointed to the commission's approval in October of Pepperdine University's expansion. The Malibu school plans to build classrooms, 154 housing units, a conference center and 1,300 parking spaces on 50 acres above the main campus. "Look at the Pepperdine decision," Massara said. "This ‘green' commission approved destruction of the last best example of old-growth native coastal grass left in existence. For what? A 1,300-acre parking lot. Pepperdine could easily have built the project elsewhere." Clearly, the Coastal Commission is interested in improved planning efforts. Staff members recently initiated a periodic review of the San Luis Obispo County LCP, the first such review of a county LCP, said Steve Monowitz, a coastal planner in the commission's Santa Cruz office. Two years ago, when rejecting a giant Hearst Corp. hotel development, the commission urged San Luis Obispo County to amend its LCP to further restrict growth. "There are a lot of coastal development pressures and there are a lot of resources at stake. There's a concern about the adequacy of the LCP to address this, as evidenced by the number of appeals the commission is getting," Monowitz said. The agency also would like to provide more training for local planners because some cities and counties are implementing LCPs improperly, Douglas added. He believes mistakes are made because of local staff turnover and because most jurisdictions with an LCP have failed to update the LCP, leaving them with an obsolete plan. Douglas said the commission will probably sue the worst offenders. That crackdown is unlikely to win new friends. Landowner attorney Gaines said the commission should relinquish its role of "statewide planning commission" and simply set policies. Tom Mathews, Orange County planning and development services director, complained at a recent conference in Los Angeles that the commission has interpreted the Coastal Act too narrowly and has ignored local decision-makers. Alternatives to the commission's strict enforcement of regulations exist, such as Orange County's 37,000-acre Natural Communities Conservation Plan for 38 species, Mathews said. But Alex Hinds, Marin County community development director, recommended local planners tap Coastal Commission expertise as early as possible. For example, Marin County planners asked commission staff to help review a 31-unit affordable housing project in Point Reyes, even though the project is covered by Marin County's LCP. "My experience is that their intent is to enhance the experience, not just look over your shoulder," Hinds said. Contacts: Peter Douglas, Coastal Commission executive director, (415) 904-5200. Steve Monowitz, coastal planner, (831) 427-4868. Fred Gaines, Gaines & Stacey, (818) 593-6355. Mark Massara, Sierra Club California Coastal Program, (415) 977-5729. John Woolley, coastal commissioner, (707) 476-2393. Alex Hinds, Marin County community development director, (415) 499-6269.

For the second time in less than a year, the Fourth District Court of Appeal has ruled against Riverside County landowners whose property was foreclosed upon because of nonpayment of special taxes. The court ruled that taxes levied under the Mello-Roos Community Facilities Act (Government Code §53311) are special taxes, not special assessments, and that failure of the government to use Mello-Roos bond proceeds as promised does not excuse nonpayment of those special taxes. Late last year, in a case involving a different landowners in a neighboring community facilities district, the court held that delays in constructing roads and utilities funded by Mello-Roos bonds did not absolve property owners of paying special taxes. Property owners have an obligation to repay bondholders regardless of disputes over how bond proceeds are used, the court held in Community Facilities District No. 88-8 v. Harvill, 99 C.D.O.S. 7309. Although the court did not cite its decision in Harvill, the latest case is similar. Riverside County formed a community facilities district under the Mello-Roos Act to raise funds for new roads and utility lines in 1987. The district encompassed industrial land along Interstate 215 north of Perris. After a vote of property owners, the county issued bonds on November 1, 1990. Later that some month, the county recorded a notice of special tax lien against all nonexempt property in the district. In October 1995, a group of property owners sued the county and the district alleging that the county fraudulently induced landowners to vote for district formation and the special levy, and that public improvements were not completed as promised. That case, Greater Perris Valley Industrial Association v. County of Riverside, San Diego County Superior Court Case No. 704058, is pending. Meanwhile, the owners of two properties, Bainbridge 17 and Dorothy Burghart, failed to pay taxes levied against their properties for the 1995-96 and 1996-97 tax years. The district, acting on behalf of bondholders, commenced foreclosure proceedings in April 1997. The landowners argued that the district was contractually obligated to provide improvements, that the failure to do so violated a 1990 memorandum of understanding, and that nonpayment was excused by the district's failure to complete improvements. San Diego County Superior Court Judge Herbert Hoffman issued summary judgement for the district. On appeal, the property owners argued that the levies were not special taxes, but were instead special assessments that could not be the subject of foreclosure. The appellate court rejected that argument. " he statutory scheme expressly set forth in the Act and the undisputed material facts in this matter establish as a matter of law that those charges are special taxes levied under the Act," Justice Gilbert Nares wrote for the unanimous three-judge panel. " e note the Act refers expressly, repeatedly and unambiguously to the levying of a ‘special tax,' rather than the levying of a special assessment," Nares wrote. The district was entitled to foreclose, he said. Nares noted that §53325.3 expressly states that such taxes may, or may not, be based on benefits received by real property. He quoted the statute, which says, "… there is no requirement that the tax be apportioned on the basis of benefit to any property. …" Failure of the district to perform contractual obligations does not excuse nonpayment of taxes, the court ruled. Bondholders who are due payments were not party to the MOUs involving the county, the district and landowners, the court said. The appellate court also upheld the trial court's award of attorney's fees to the district, and awarded fees on appeal. The Case: Riverside County Community Facilities District No. 87-1 v. Bainbridge 17, No. D030175, 00 C.D.O.S. 433, filed December 22, 1999, certified for partial publication January 14, 2000. The Lawyers: For CFD No. 87-1: Susan Feller and Ray Sherman, Sherman & Feller, (510) 452-3222. For Bainbridge: Henry Heater and George Kaelin III, Endeman, Lincoln, Turek & Heater, (619) 544-0123.