Stanford University has proposed construction of about 3,000 housing units and 2 million square feet of academic and cultural facilities, offices and athletic structures. At the same time, Santa Clara County is exerting greater control over Stanford land use then ever before. Stanford — which owns 8,180 acres, two-thirds of which is open space — has submitted a draft Community Plan to the county. The document is more detailed than previous plans, something local government leaders and community activists demanded. "It really gets down to who gets to decide what happens there," said Sarah Jones, project manager for the Santa Clara County Planning Office. "We are definitely trying to take a more active role. It's not sufficient anymore to say you can build so many square feet in exchange for such and such." Besides submitting the Community Plan, which the county is treating as a general plan amendment, Stanford has applied for a general use permit that would allow actual construction after review of individual projects. The general use permit will probably expire in 10 years, but the Community Plan should have a longer life, Jones explained. The draft plan calls for nearly two-thirds of new housing to be in the form of apartments, group housing and dormitories for graduate students. Another 350 apartments would be available to hospital residents and postgraduate fellows. Up to 687 single-family houses, duplexes and apartments would be designated for faculty and staff members. Although an environmental impact report is due in June, concerns have arisen already regarding open space protection, traffic and land for a new middle school. Members of the Stanford community and surrounding residents treasure the university's eucalyptus groves, grasslands, lakes and rolling hills. Stanford contends that its plan would not decrease the amount of open space, and, at the county's urging, the university has proposed an academic growth boundary similar to an urban growth boundary. "Development on Stanford land in Santa Clara County will be concentrated in the core campus," the plan states. But Stanford has refused to restrict potential, future use of the open space because the university's founders provided the entire site for higher education. "We plan to keep it open space for the next 10 years," said Andy Coe, Stanford's director of community relations. "To plan beyond that time would be irresponsible." Joe Huber, a former Palo Alto city councilman who serves on a county advisory committee on the Stanford Community Plan, said he is tired of this argument. A good chunk of open space should be preserved, and, if Stanford is unwilling, the county should zone tracts as open space, Huber said. Huber also doubts Stanford's contention that the proposed development would add few vehicles to the area's congested boulevards. Menlo Park City Councilman Paul Collacchi, who also sits on the advisory board, said Stanford should construct a better internal road system. Collacchi figures Stanford's university, research park, medical center, shopping center and other facilities comprise 30 million square feet of development, 37,500 workers and 15,000 students. Yet Stanford relies primarily on off-site roads. Coe said the Community Plan calls for boosting an already aggressive transportation demand management program, which includes a free shuttle to mass transit stations, payments to people who do not drive, and parking fees. Plus, additional on-campus housing should eliminate some existing vehicle trips, he noted. As for a new middle school, Stanford is negotiating with Palo Alto Unified School District. The district already has crowded classrooms, and Stanford's new housing could bring 200 to 500 additional students. The district has asked for a site in the core campus, but Stanford thus far has offered two locations away from the main campus and outside the academic growth boundary. No one strongly disputes Stanford's housing intentions. The market in the northern Silicon Valley is so expensive and tight — the median single family home prices tops $400,000 — that Stanford sometimes has trouble recruiting faculty, Coe said. The larger issue of government police power regarding Stanford might be foremost right now. "We've been trying for years to get some sort of growth plan out of Stanford that protects open space and has limits," Huber said. "Up until now, Stanford has had sort of a free ride with the county. But now the heat's on." He called the draft Community Plan a good starting point and expressed optimism about the current planning process. Even Collacchi, who city has feuded with Stanford for decades, commended the county process. "I would like to see more oversight and treatment of Stanford as a private institution, just as any other institution. It has received extra-legal treatment," he said. In fact, Stanford's land in Santa Clara County lies in a general zoning district, which allows almost any use as long as Stanford gets a use permit. That generous zoning might change, Jones said. Complicating the planning is the fact that Stanford's holdings extend over portions of two counties (Santa Clara and San Mateo) and four incorporated cities (Palo Alto, Menlo Park, Portola Valley and Woodside). In December, Stanford development in Palo Alto advanced when the Sixth District Court of Appeal ruled against Menlo Park's lawsuit regarding several Stanford projects — about 1,000 apartments and senior homes, shopping center expansion, and widening and extending Sand Hill Road, a busy thoroughfare. In an unpublished opinion, the court rejected Menlo Park's argument that the EIR must account for a great deal of future Stanford development. An EIR on another project in Palo Alto, expansion of Stanford Medical Center, is due shortly. Also, the Hewlett Foundation has expressed interest in building an office in the San Mateo County portion of Stanford. Still, Stanford officials recognize "times are different," and they want to ensure the public has plenty of input, Coe said. "There is much more attention being paid to housing, traffic and open space." Contacts: Sarah Jones, Santa Clara County, (408) 299-2454, ext. 226. Andy Coe, Stanford University, (650) 725-3323. Joe Huber, Community Resources Group, (408) 295-7034. Paul Collacchi, City of Menlo Park, (650) 321-9751.

Delays by the City of Los Angeles in issuing a permit to demolish a burned-out hotel amounted to a temporary taking, the Second District Court of Appeal has ruled. The unanimous three-judge appellate panel upheld a trial court's ruling that awarded the landowner $1.2 million, plus interest, for the inverse condemnation. The court upheld the trial court's monetary award after concluding that the city's delay in issuing the demolition permit was not part of the normal development review process, and that the delay temporarily denied the hotel owner of all use of his property. Lawyers on either side of the case could point to no other instances where a landowner has received payment for a taking under state law. Recent takings cases won by landowners, including City of Monterey v. Del Monte Dunes Ltd., 119 S.Ct.1624 (1999), involved federal law. (See CP&DR Legal Digest June and July 1999.) The ruling is only the latest in a 10-year legal battle between Syed Mouzzam Ali, who owned the Ferraro hotel, and Los Angeles. Ali has won almost every round, including a 1995, unpublished appellate court case, Ali v. City of Los Angeles, B077712, in which the court ruled that the permit delay violated the Ellis Act. The Ellis Act (Government Code §7060 (a)) permits the owner of rental housing to go out of business (that is, withhold units from the market) regardless of local housing ordinances. The appellate court's decision provided an outline for aggrieved landowners, said Rosario Perry, Ali's attorney. "I think this case is important because it explains how people are going to get temporary takings in California. We've heard in a lot of other cases about how people cannot prove a temporary takings," Perry said. The city has asked the Second District to grant a rehearing and will file a petition for review by the state Supreme Court if necessary, said Michael Klekner, deputy city attorney. "Our problem with the court of appeal opinion is that it ignores the findings of the trial court that we acted in good faith," Klekner said. In November of 1988, a fire "substantially destroyed" the Ferraro hotel. Two months later, Ali applied for a permit to demolish the burned-out structure. The city refused to approve Ali's application because it contended the Ferraro was a single-room occupancy (SRO) hotel, and the city prohibited demolition of such affordable housing units unless the building could not be repaired or the owner agreed to replace the units. After some legal and administrative proceedings, the city concluded the Ferraro was not an SRO hotel, so the city issued a demolition permit in August of 1990, 19 months after Ali filed his application. In the interim, the city determined that Ali was not providing adequate security at the abandoned hotel — there had been a series of small fires starting in July of 1989 — so the city hired 24-hour security and assessed the cost to Ali. Ali sued the city, claiming that the delay was unlawful and that the security measures would have been unnecessary had the city acted properly. The appellate court in 1995 ruled in Ali's favor, remanded certain issues for trial and allowed Ali to raise new complaints. Two trials followed. In one, Los Angeles Court Superior Court Judge Gregory O'Brien ruled that the delay in issuing the demolition permit was illegal and was solely the fault of the city, so he refunded to Ali $399,000, plus interest, in assessments for security. The city did not appeal the portion of the ruling that set aside and refunded the assessments. In a second trial, Los Angeles County Superior Court Judge Lawrence Crispo ruled that the city's actions amounted to a regulatory taking and a physical taking of Ali's property. Judge Crispo awarded Ali $1.2 million, plus interest, for inverse condemnation. The city did appeal this judgement. At the appellate level, the city argued that the California Supreme Court's decision in Landgate, Inc. v California Coastal Com., (1998) 17 Cal4th 1006, was the controlling precedent. In Landgate, the court ruled the Coastal Commission's erroneous attempt to assert jurisdiction over a proposed parcel split — which delayed development — was not a temporary taking. The state's high court ruled that the delay was the result of the normal development approval process and that the Coastal Commission's actions were objectively reasonable. (See CP&DR Legal Digest, June 1998.) But Ali argued that Landgate was inapplicable and, instead, pointed to the important takings case of First Lutheran Church v. Los Angeles County, (1987) 482 U.S. 304 (known as First English). In that case, the U.S. Supreme Court ruled that a regulation that deprives a landowner of all economically viable use of his land may constitute a regulatory taking, which requires compensation under federal law. The Second District, Division Four, panel sided with Ali, ruling that the facts were distinguishable from Landgate. The court said the city's argument that there was no taking because Ali eventually sold his property to the original purchaser was "a non sequitur which fails to address the temporary deprivation of all use of the property." The real issue, the court said, was whether the denial of the demolition permit for 19 months was a "‘normal delay' in the ‘development process' as explained in Landgate." The court said no. In his opinion, Presiding Justice Charles Vogel noted that the Landgate court held that government action that was arbitrary was different from the Coastal Commission's action, and the delay from such arbitrary action would not be "normal." Vogel wrote, "We conclude the City's attempt to enforce its SRO ordinance in violation of the Ellis Act involves the ‘different question' suggested by Landgate, where the position taken by the City was ‘so unreasonable from a legal standpoint' as to be arbitrary, not in furtherance of any legitimate governmental objective, and for no other purpose than to delay any development other than for an SRO hotel. Therefore, the delay in demolition of the hotel was a temporary regulatory taking requiring compensation." The court rejected the city's argument that its erroneous enforcement of the SRO ordinance was an attempt to preserve the availability of low-income housing. The court said the city's action was "arbitrary and unreasonable in light of the Ellis Act." Furthermore, First English requires that Ali receive compensation because the city's regulatory decisions deprived him of all use of his property, the court said. The court rejected the city's argument that Ali forced the delay because he did not seek administrative review of the decision to list the Ferraro as an SRO hotel. Whether or not it was an SRO hotel, Ali had the right to demolish it under the Ellis Act, the court said. Additionally, the validity of the SRO hotel ordinance vis a vis the Ellis Act "was not an issue for the Building and Safety Department acting administratively," the court ruled. Deputy City Attorney Klekner, in an interview, said the court ignored the city's procedure. "Anyone who is familiar with the permit process knows that things are put down on a checklist that are incorrect, and there are ways to challenge the incorrect items checked," he said. Ali failed to do this, even though the city's administrative process was available, he said. But Perry, Ali's attorney, said it was Los Angeles City Council politics that prevented the city from issuing what should have been a routine demolition permit for a building that was 90% destroyed. "Cities are going to have to learn that they can't vote by popularity on these projects. They have to make an objective decision based on some facts," Perry said. Klekner warned that the case sets a bad precedent for local government. "If this opinion holds up, it would turn every permit into a ministerial act," he said. But Perry disagreed because, he said, the facts of the case are peculiar. The Case: Syed Mouzzam Ali v. City of Los Angeles, No. B114226, 99 C.D.O.S. 15, 1999 Daily Journal D.A.R. 12941, filed December 28, 1999. The Lawyers: For Ali: Rosario Perry, (310) 394-9831. For Los Angeles: Michael Klekner, deputy city attorney, (213) 485-5420.

An appellate court has ruled that an environmental impact report for a proposed San Diego County rock quarry was closer to acceptable than a trial judge had ruled, but the EIR still lacked a proper analysis of air quality impacts. The Fourth District Court of Appeal overturned San Diego Superior Court Judge Judith McConnell's ruling that the rock quarry EIR improperly deferred study of highway widening, and that the EIR failed to account for prior illegal mining on the property. Still, the unanimous three-judge appellate panel sided with Riverwatch, a collection of residents near the proposed quarry and environmentalists, on the air quality issue. The court also rejected the mining company's claim that its project had been "deemed approved" years ago and could no longer be challenged in court. Palomar Aggregates filed its first application for a rock quarry near State Route 76 and Interstate 15 in northern San Diego County in March of 1987. After a draft EIR was released in mid-1988, Palomar announced it would not pursue the project described in the study because of concerns over the project's size. Palomar revised the project and prepared a second EIR. But the county Planning Commission denied the permit application in January of 1993 because some environmental impacts could not be mitigated. The Board of Supervisors rejected Palomar's appeal. The company again revised its proposal, and a third draft EIR was released in April of 1996. The EIR's discussion of plans for widening SR 76 in the floodplain of the San Luis Rey River drew criticism from residents, Caltrans, the U.S. Fish & Wildlife Service and local water districts. In response to this criticism, the county required Palomar to widen SR 76 before the quarry opened, and said that the application to Caltrans to encroach onto the floodplain would be subject to environmental study. The Board of Supervisors approved the quarry in March of 1997. Riverwatch filed a lawsuit against the county challenging the EIR and alleging various land-use and zoning deficiencies. Judge McConnell ruled for Riverwatch. She found that the EIR improperly segmented the project by deferring a full study of the highway widening until after the county approved the quarry. She also ruled that the EIR should have set an environmental baseline that included site conditions prior to illegal mining activity. And she said the EIR failed to consider blowing dust from the quarry and haul road. McConnell never reached Riverwatch's land-use and zoning claims. On appeal, Palomar argued that the EIR contained adequate information to evaluate impacts of highway construction. The appellate court agreed. In her opinion, Justice Patricia Benke quoted extensively from the EIR's discussion of the highway project, the associated mitigations, and an analysis of an alternative route. " n its face, the final EIR determined the widening will have a significant impact, requires mitigation which no one disputes will render the impact of the widening insignificant and considers the only feasible alternative route for the widening suggested anywhere in the record," Benke wrote. "Contrary to Riverwatch's contention," Benke continued, "the fact that the final EIR deferred until a later point more detailed analysis of the realignment of SR 76 did not violate CEQA." Benke cited extensively No Oil, Inc. v. City of Los Angeles , (1987) 196 Cal.App.3d 223. In that case, Occidental Petroleum sought permission to drill exploratory oil wells. The city approved the test wells, but project opponents sued because the EIR did not fully analyze the location and impacts of oil transport pipelines that eventually would be required if the exploration were successful. The No Oil court said such an analysis "would be mere speculation" and could be deferred until Occidental proposed building a pipeline. " o Oil makes it clear that CEQA does not require project proponents to act imprudently or to bear unnecessary investigative and assessment burdens" Benke wrote. Although additional data and modeling of the highway widening — requested by Riverwatch and government agencies — would be useful, it would not change the EIR's conclusions, she wrote. "Importantly, no part of the project will go forward until the realignment has been approved by Caltrans and the road has been constructed. Thus, should new information show that any unmitigable impact of the realignment outweighs the benefits of the project, Caltrans can deny the encroachment permit Palomar must obtain and thereby prevent operation of the quarry. The county was certainly entitled to rely on this additional safeguard in deciding to defer a detailed analysis of the highway realignment." As for the EIR's description of baseline conditions, Riverwatch and the Fish & Wildlife Service argued that the EIR did not assess the value of the floodplain as wildlife habitat had the site not served as an illegal sand mine for Palomar's owners and the previous landowners. The Fish & Wildlife Service recommended the county take no action on the quarry application until a Notice of Violation of the Clean Water Act was resolved. Judge McConnell found that the EIR should have developed an environmental baseline that accounted for the prior illegal activity on and near the project site. However, the appellate court said an EIR need not deal with prior unauthorized activity. "We believe that in general preparation of the EIR is not the appropriate forum for determining the nature and consequences of a prior conduct of a project applicant. … Because the prior illegality was subject to enforcement actions and the enforcing agency participated in the CEQA process, CEQA did not require any further accounting for prior activity at or within the vicinity of the project," the court ruled. Potential air pollution was another matter, and the appellate panel upheld McConnell's ruling there. The EIR concluded that the air quality impacts were insignificant because the quarry's processing emission of 95 pounds of particulate matter per day was below the 100-pound threshold of the San Diego Air Pollution Control District. But, the court noted, the study also found that drilling, handling and wind erosion of stockpiles would generate another 82.7 pounds per day of particulate matter (called PM10), and hauling of aggregate would create 111.1 additional pounds per day of PM10. "While the process emissions met the APCD process emission standard of 100 pounds of PM10, that fact did not permit the drafters of the EIR to presume that the other almost 200 pounds of PM10 was insignificant or that together the process emissions and the fugitive and road haul emissions were insignificant," Benke wrote. The court also rejected Palomar's contention that its project had been deemed approved more than 10 years ago. Palomar argued that the city's failure to act on the original 1987 application means the project was "deemed approved" under the Permit Streamlining Act, which sets deadlines for local government to rule on land-use applications, and the time to challenge the approval had long since ended. But the court ruled that the deadline for the county to act did not apply because Palomar itself insisted on halting the original EIR process. Furthermore, the court ruled, the public has 180 days to "bring a CEQA challenge to a project which has not been the subject of a ‘formal decision' by a public agency." Thus, even if the project were "deemed approved," a lawsuit could still be filed because Palomar never started work on the proposed quarry. The Case: Riverwatch v. County of San Diego , No. D030732, 99 C.D.O.S. 9933, 1999 Daily Journal D.A.R. 12743, filed December 22, 1999. The Lawyers: For Riverwatch: Carlyle Hall Jr., Hall & Associates, (310), 441-8300. For the county: R. Mark Beesley, county counsel, (619) 531-6456. For Palomar: Tina Thomas, Remy, Thomas & Moose, (916) 443-2745.

In a currently popular coffee-table book titled The Not So Big House, Minneapolis-based architect Sarah Susanka argues for an age-old idea that seems quaint in our hyper economic boom times: quality is better than quantity. When it comes to addressing the current planning dilemma called monster houses � the phenomenon of tearing down older houses and rebuilding with Godzilla proportions in Bambi neighborhoods � Susanka may be to the 2000s what Andres Duany was to the 1990s: an architect that has design antidotes for infill urban design horrors. Susanka's thesis is so fundamentally logical that it takes on the aura of innovation. She writes that well-rendered small spaces can create not only more useable houses, but ones that are better for the soul. Susanka's admonition might also be better for the neighborhood, if the tumult at building permit counters in affluent municipalities is any indication. Community outrage over monster houses has spilled into many of California's City Council chambers � especially in Silicon Valley � and is resulting in urgency ordinances and a range of other code revisions. Of course, the American cultural obsession with size is not limited to houses. The view across most suburban shopping center parking lots is of monster SUVs, monster fast food drink cups, and probably a monster big box or two. But the monster phenomenon is particularly problematic when it comes home to the neighborhood � especially in expensive areas like Silicon Valley. The older, bucolic neighborhoods near the high-tech job hubs in Santa Clara and San Mateo counties are desirable places to by homes, but the houses are just too small for today's tastes. So remodels abound. Now, these quiet, older neighborhoods are fighting back. Last November, the City of San Mateo extended a ban on demolishing single-family homes. Palo Alto approached the problem with politically-correct aplomb, disguising its restrictions as an historic preservation ordinance. And Cupertino approved extensive review regulations for second-story additions. The trickiness of this planning issue is the underlying theme of propriety and neighborliness, which is difficult for most communities to regulate. Many older or longtime residents simply believe it is impolite to construct additions that are taller than the neighborhood norm, or that differ with the standard architecture. On the other hand, some smart growth proponents applaud the reinvestment in existing neighborhoods, compared with building new monster houses on monster lots at the exurban fringes. And by the way, didn't we all � including "Edward Scissorhands" creator Tim Burton � loathe the drab sameness of suburbia, especially the post World War II ranch-style subdivisions? And what of property-rights advocates who deplore new attempts to regulate what homeowners can do with their properties. Add to these issues the ever controversial and sometimes elitist notion of design review � so-called expert panels ruling on roof pitch and siding material choices for the good of the community. Suffice it to say that the monster house trend places myriad philosophical issues into play. It's not that residential building has gone unregulated until now. Standard R-1 zoning in most communities requires 25-foot front and rear yard setbacks, and five-foot side yards. Many communities also have site coverage and height restrictions. But for longtime residents in neighborhoods like San Jose's Willow Glen, such building envelope rules have not stopped a steady stream of special-use permit notices from showing up in everyone's mail boxes. Bulldozers and contractors have been a staple in Willow Glen for the last several years, and that has fired up San Jose's civic debate. San Jose attempt at resolving the monster house controversy has been both measured and comprehensive. The City has passed a tiered design review ordinance, linking the assessment of remodel additions to performance standards depending on a particular lot size. In that way, the scale of a remodel or addition is dependent on relevant site criteria, including the floor-to-area ratio, setbacks, and terrain. Building requests that would have a greater impact on neighborhood scale will require more laborious, extensive, and costly public hearing review. Whether neighborhoods such as Willow Glen will be satisfied with the regulatory approach remains to be seen. Perhaps the City should also require that would-be remodelers read Susanka's book. "We all want to go home," she writes, "but we don't know how." Perhaps with some reflection by the homeowner who thinks he can't possibly live in less than 4,000 square feet, unneighborly consequences can be reigned in. Otherwise, the results can apparently be monstrous. Stephen Svete, AICP, is a principal in the Ventura-based consulting firm of Rincon Consultants, Inc.

A proposed public bailout of the owner of Highway 91 toll lanes in Orange County has died amid allegations of financial improprieties. The experience with the 91 Express Lanes, which even privatization supporters call a "fiasco," appears to put a damper on what little interest remains in constructing private highways. "This is not something that anyone should expect to become the dominant mode of highway building," said Marlon Boarnet, a University of California, Irvine, planning professor who has studied the issue extensively. A joint venture called California Private Transportation Corp. (CPTC) constructed the 10-mile tollway in the right-of-way for the Riverside (91) Freeway. The lanes opened in December of 1995, and more than two years passed before CPTC turned a profit. But usage reportedly dropped by more than one-third to roughly 18,000 trips per day after the Eastern Toll Road opened in late 1998. The Eastern Toll Road, run by the public Foothill/Eastern Transportation Corridor Agency, handles much of the same Riverside County-Orange County commute traffic that the 91 Express Lanes accommodate. For a variety of reasons, CPTC announced it would sell the 91 Express Lanes to a new nonprofit organization called NewTrac, which CPTC helped establish with a $1 million loan. The proposal called for the state to sell $274 million worth of tax-exempt bonds on behalf of NewTrac. CPTC would receive $225 million for the 91 Express Lanes, which reportedly cost about $135 million to construct, and the remaining bond proceeds would pay finance costs and create a reserve. Tolls, now topping out at $3.75, would retire the debt. As the December 9, 1999, date for selling bonds neared, several prominent officials — including state Treasurer Phil Angelides, Orange County Treasurer John Moorlach and Riverside County Supervisor Bob Buster — publicly questioned the deal. When the proposal reached the California Infrastructure and Development Bank, Angelides abstained, but the other two members of the ban, Trade and Commerce Secretary Lon Hatamiya and Director of Finance Tim Gage, voted to approve the bond sale. The day before the scheduled bond sale, however, Angelides, acting as the "agent of sale," halted the issue indefinitely. He could do this because legal issues were raised regarding the sale, said Cathy Calfo, an Angelides aide. In this case, the state Attorney General's office opened an investigation, she noted. Also, the Riverside County Board of Supervisors voted unanimously to pursue legal action to halt the sale. Those who raised questions said no independent appraisal of the 91 Express Lanes was ever made. Some people also wondered about the close ties between NewTrac and the seller, a concern that the attorney general's office and the Internal Revenue Service have decided to investigate. Some people also questioned the role of Gary Hausdorfer, a former chairman of the Foothill/Eastern Transportation Corridor Agency who heads NewTrac. Hausdorfer and CPTC have denied wrongdoing and said the bond sale was attacked for political reasons. The issue is certainly headed for the political arena, as a joint hearing of the state Legislature regarding the proposed sale and the future of the 91 Express Lanes was scheduled for February 1. The courts also will get involved, as the Riverside County Transportation Commission sued Caltrans and CPTC in late December to force Caltrans to take over the toll lanes. The situation appears to have reinvigorated discussion of private highways. State legislation in 1989 (AB 680) authorized four private tollways — the 91 Express Lanes, State Route 125 in San Diego County, extension of the 57 Freeway in southern Orange County, and a highway linking the East Bay with Sacramento. Only the 91 Express Lanes were built. The San Diego County project is nearing final approval after years of environmental study and legal wrangling. The other two proposals appear dead. Boarnet views the 91 Express Lanes as a successful experiment, partly because it brought forth questions that must be answered before future private roads are built. The question of competition from the public sector might be the toughest to answer. The 35-year agreement Caltrans has with CPTC prevents Caltrans from making safety or capacity improvements to the free lanes of Highway 91 until congestion substantially worsens. At the time the "no compete" clause was approved, no one appreciated how long 35 years is and how much traffic conditions could change, Boarnet said. Hurting the CPTC is the Transportation Corridor Agency's access to tax-exempt bonds, which reduced costs. "We need to take a closer look to see if the public good would be great enough to have these private franchises float tax-exempt bonds," Boarnet said. Robert Poole, director of the transportation program at Reason Public Policy Institute and a proponent of the original AB 680, said projected population growth and stagnant gas tax revenues mean the state needs alternatives for providing highway capacity. The California Transportation Commission estimates the state has $118 billion in unfunded highway needs through 2008. "Toll-funded projects need to be a big part of the equation in the next 20 years in this state," Poole said. "We ought not let the hiccup that was represented by this little fiasco get in the way of the role that public-private partnerships can play." Like Boarnet, Poole said the 91 Express Lanes experience presented valuable lessons. The original contract between CPTC and the state did not contemplate a change in ownership, Poole said. The 91 Express Lanes situation and the slow pace of approving the San Diego County toll road make clear the need for more flexibility in public-private partnerships, he said. In some other states, for example, the state transportation department carries a project though the planning and environmental review stages, then turns it over to a private developer for construction and operation, he said. A hybrid called "high occupancy toll" (HOT) lanes received a boost from a January study of high occupancy vehicle (HOV) lanes by the Legislative Analyst's Office. These HOT lanes are free for carpools, while single-occupant vehicles pay a toll. Intestate 15 has HOT lanes that carry commuters into and out of San Diego. A computerized system, which reads transponders on vehicles, charges tolls ranging from 50 cents to $4 based on highway congestion. Tolls can change every six minutes. The San Diego Association of Governments calls the I-15 HOT lanes a success, and the Legislature has extended the pilot program's sunset date to 2001. Still, Californians' acceptance of toll roads appears limited. The San Joaquin Hills Toll Road (Highway 73) in western Orange County has not come close to traffic and income projections since opening four years ago, forcing the Transportation Corridor Agency to raise tolls. Boarnet said California motorists will accept toll roads only if the new lanes provide obvious relief from congestion on the network of free highways. Contacts: Marlon Boarnet, UC Irvine, (949) 824-7695. Robert Poole, Reason Public Policy Institute, (310) 391-2245. State Treasurer's office, (916) 653-2995. Website: www.lao.ca.gov

Faced with the possibility of adding another 1.5 million people during the next 20 years, Riverside County has embarked on an ambitious effort to plan for that growth. The Riverside County Integrated Plan seeks to combine land use, transportation, and habitat planning into one unified blueprint for growth. County officials emphasize that the planning process does not seek to restrict growth. Rather, the goal of the process is to channel and accommodate new growth while meeting federal standards for protecting wildlife habitat. "We think we're on the right track," said County Supervisor James Venable, whose district includes Hemet and other areas in the path of growth. "If we don't pull this off, Riverside County will be chaos." So far, the project is on schedule and all stakeholders — from builders to environmentalists — remain engaged in the process. But the project is reaching a critical point. "We will begin facing critical decisions in the next 90 to 120 days," said Mel Placilla, project manager for Svedrup Inc., an Orange County engineering firm that is coordinating the massive team of project consultants. County officials have set aside more than $20 million for the planning process, which they expect to take three years – a "fast-track" schedule for a project of this size. The end result will be three new plans: o The long-awaited Multi-Species Habitat Plan, or MSHP, which is expected to designate a preserve of more than a half-million acres in total and identify ways to acquire and pay for between 40,000 and 120,000 acres of new preserve land. o A plan for building two new transportation corridors — one east-west and one north-south — through what officials are calling the Community and Environmental Transportation Acceptability Process, or CETAP. o An updated county General Plan, which will create 19 specific plans in unincorporated territory capable of accommodating massive jobs and housing growth over the next 20 years. The habitat plan and the general plan revision will ultimately be approved by the county Board of Supervisors. The transportation plan must eventually win the approval of the Riverside County Transportation Commission, whose members include the county and its cities. Each plan has an advisory committee composed of 30 to 35 members, including stakeholder groups and other government agencies. Seven consulting firms are involved in the process, including Transcore (transportation), The Planning Center (land use), Dudek & Associates (habitat planning) and LSA (environmental review). The concept of integrating land use, transportation, and environmental planning in a local government planning process at such a large scale is unusual. But the Riverside County program has many parallels to regional and state planning processes undertaken elsewhere in the country, according to Marya Morris, a researcher at the American Planning Association in Chicago. An effort such as the New Jersey State Plan, for example, is probably comparable in size, she said. "It's big but it's not huge for that population," Morris said of the Riverside effort. "Conceptually, it doesn't sound that unique." The Riverside plan is almost certainly the most expensive local planning process in California history. The cost of the Riverside plan is probably comparable to some single-issue regional planning processes, such as the Natural Communities Conservation Planning effort in Southern California. However, the NCCP is creating 11 sub-regional plans dealing with only one issue, habitat preservation. If the Riverside plans are approved and implemented, they could represent a revolution in the way the county grows. The county's population has increased from approximately 500,000 people in 1970 to 1.4 million today. State demographers predict that it will grow to 2.7 million by 2020, meaning it would have about the same population that Orange County has today. In the past, most growth has occurred in unincorporated areas, with new communities becoming cities later on. The county has operated under a general plan that is "policy driven" — meaning it does not have a map outlining physical development — and the plan has frequently been amended. While all stakeholders are actively participating in the Integrated Plan, they do not appear to share a common vision — at least not yet. Dan Silver of the Endangered Habitats League is pushing for concentrated development in urban "nodes" that can support transit and other alternatives to traditional suburban sprawl. By contrast, Barry Burnell of T&B Planning in Orange County, who works for many Riverside County landowners, is unsure that urban-style transit is viable in the next 20 years under any scenario. Both, however, are enthusiastic about the process. "There's true political leadership in Riverside County," said Silver. Added Burnell: "They're approaching this intelligently. You don't see efforts like this every day." The multi-species habitat preserve is likely to form the broad outlines of the county's growth pattern. Riverside County has been under pressure from the U.S. Fish & Wildlife Service to prepare an MSHP for several years. The county has completed a conservation plan to preserve one species, the Stephens' kangaroo rat, but the county has a rich biodiversity and many other species are likely to be listed in the future. The consulting team has identified close to 400,000 acres of publicly owned property that could be included in the preserve. An additional 40,000 to 120,000 acres will likely have to be acquired, either with state and federal funds or with money obtained from a mitigation fee system similar to the one now in place for the kangaroo rat. So far, the consulting team has written plans and established criteria but has not "drawn lines on a map" to lay out the preserve. On transportation, the consulting team has identified four possible transportation corridors, including: 1. A new east-west connection between Riverside and Orange counties, paralleling the already overburdened Highway 91 corridor. 2. A new east-west connection (actually running northeast-southwest) from Banning and Beaumont southwest to Lake Elsinore. 3. A new north-south corridor going north from San Bernardino to Moreno Valley. 4. A new north-south corridor going south from Hemet to Temecula, linking two fast-growing areas that also have a great deal of open land. Discussion about the transportation corridor has revolved around the question of transit — whether it is viable in Riverside County, and whether and how the corridors should plan for potential transit lines. Thus, the transportation discussion overlaps with the land-use debate happening in the context of the revised General Plan. With the consultants, the General Plan Advisory Committee has laid out three broad land-use alternatives — a "trends" proposal that simply extends current trends into the future, a "spheres" proposal that incorporates city plans regarding their spheres of influence, and a "vision" plan, which places more emphasis on infill development, land preservation, and concentrated urban nodes. The Advisory Committee has adopted a set of "vision statements" but has yet to craft the final set of land-use recommendations. Advocates of more compact development acknowledge that altering Riverside County trends will be a difficult political sell. "The 7,200-square-foot lot is a religion," said environmentalist Silver. One big question is how cities in western Riverside County will participate in the process — especially the land-use planning process. Cities are officially participating in the transportation and habitat planning components of the Integrated Plan, but the land-use plan will affect unincorporated county territory only. Project manager Placilla said his team is seeking to bring the cities into the process with a series of presentations — most recently in Temecula, where the City Council heard a presentation on January 18. Both Placilla and city officials say the county's effort is being received positively. "I think this is long overdue and I applaud the county for getting it together," said Gary Thornhill, Temecula's deputy city manager and community development director. Yet there is considerable bad blood between the county and many cities, which were incorporated because of discontent with the county land-use planning policies that created those communities in the first place. For example, in many cases the county has already approved projects located inside city spheres of influence. So for the cities, one goal of the process may be to change those projects or minimize their impact — perhaps by having some properties designated as part of the habitat preserve. For example, Thornhill recently praised a deal involving the county and the Trust for Public Land to purchase the 1,376-acre Johnson Ranch. In December, county supervisors approved a 3,500-home development on the ranch, which is located inside Temecula's sphere of influence. A week later, however, TPL bought the ranch for use as part of the species preserve. Contacts: Jim Venable, Riverside County Supervisor, (909) 955-1030. Mel Placilla, Svedrup Inc., (714) 549-5050. Barry Burnell, T&B Planning, (714) 662-2774. Dan Silver, Endangered Habitats League, (323) 654-1456. Gary Thornhill, City of Temecula, (909) 694-6400. Marya Morris, American Planning Association, (312) 431-9100.

The U.S. Supreme Court has ruled that citizens can sue alleged polluters under the Clean Water Act. The high court's January decision in a case from South Carolina was a significant victory for environmentalists, who argue that the government sometimes does not adequately enforce the Clean Water Act and other environmental protection laws. On a 7-2 vote, court ruled that Friends of the Earth (FOE) had standing to sue Laidlaw Environmental Services over the company's violation of a National Pollutant Discharge Elimination System (NPDES) permit that allowed Laidlaw to discharge treated wastewater into the North Tyger River. The court also ruled that the lawsuit was not made moot by a settlement between Laidlaw and the South Carolina Department of Health and Environmental Control. Finally, the court backed a civil penalty of $405,800 against Laidlaw. Laidlaw — which has since changed its name to Safety-Kleen (Roebuck), Inc. — purchased a hazardous waste incinerator in Roebuck, South Carolina, in 1986. It soon received the NPDES permit from the state. However, Laidlaw repeatedly violated permit conditions, especially limits on mercury discharges. In April 1992, Friends of the Earth notified Laidlaw that the environmental group intended to file a lawsuit under the Clean Water Act, 33 U.S.C. §1251 et seq. In an attempt to head off the lawsuit, Laidlaw invited the state to file a suit. Laidlaw drafted the lawsuit and even paid the filing fee. Just before the deadline for FOE to file its lawsuit, Laidlaw and the state agreed to a settlement that required Laidlaw to pay a $100,000 civil penalty and make "every effort" to comply with the permit. Friends of the Earth sued anyway, and the federal District Court ruled for the environmental group in January 1997. The court ruled that because the state's action against Laidlaw had not been "diligently prosecuted," FOE could proceed with its complaint. The court found that Laidlaw had violated the mercury discharge limit 489 times, with the final violations occurring in 1995. The court also determined Laidlaw had violated monitoring and reporting requirements hundreds of times. The court fined Laidlaw $405,800. Friends of the Earth appealed the penalty as inadequate, while Laidlaw cross-appealed, arguing that FOE lacked standing to sue and that the state had diligently prosecuted the matter. The Fourth District Court of Appeals reversed the District Court. The appellate panel ruled that the case was moot because Laidlaw no longer violated the permit, and concluded that civil penalties were inappropriate because they did not redress any injury FOE suffered. The Supreme Court reversed the Fourth District panel. Writing for the majority, Justice Ruth Bader Ginsburg said FOE had standing to sue because Laidlaw pollution had affected members' recreational, aesthetic and economic interests. Thus, FOE could seek civil penalties that would discourage further pollution. "Here, the civil penalties sought by FOE carried with them a deterrent effect that made it likely, as opposed to merely speculative, that the penalties would redress FOE's injuries by abating current violations and preventing future ones — as the District Court reasonably found when it assessed a penalty of $405,800," Ginsburg wrote. Furthermore, Ginsburg wrote, Laidlaw's voluntary compliance with the NPDES permit did not make the case moot. "It is well settled that ‘a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice,'" wrote Ginsburg, citing City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982). In a dissent joined by Justice Clarence Thomas, Justice Antonin Scalia said FOE did not prove it had been harmed. Scalia made clear he thought the court was giving environmentalists too much authority, and he argued that the Clean Water Act's provisions allowing citizens to sue for civil penalties were unconstitutional. "The undesirable and unconstitutional consequence of today's decision is to place the immense power of suing to enforce the public laws in private hands," Scalia wrote. The Supreme Court remanded the case to the district court for further proceedings. The case is Friends of the Earth, Incorporated v. Laidlaw Environmental Services (TOC), Inc., No. 98-822, 00 C.D.O.S. 289, Decided January 12, 2000.

The state Supreme Court has granted a petition for review of a case involving a city's utility user's tax. Six of seven justices voted to review Howard Jarvis Taxpayers Association v. City of La Habra, 1999 Daily Journal D.A.R. 9003, in which the Fourth District Court of Appeal ruled that the statute of limitations had elapsed for challenging the tax. (See CP&DR Legal Digest, October 1999.) Lawyers on either side of the case had expected the state's high court would take the case because the decision conflicted with a 1997 ruling by the same appellate division. The case stems from the La Habra City Council's decision in December of 1992 to levy a tax based on utility use. Jarvis argued that Proposition 62 from 1986 required that such taxes have voter approval. The appellate court ruled that the three-year statute of limitations expired before Jarvis filed its lawsuit in March of 1996. Jarvis relied heavily on McBrearty v. City of Brawley, 59 Cal.App.4th, 1441, a similar local tax case. In McBrearty, the court said a three-year statute of limitations was not in effect because the state Supreme Court did not rule that local taxes levied without voter approval were illegal until after the three years had expired. In the La Habra case, the court said the McBrearty decision was "flawed." The court also rejected a Jarvis argument that the three-year statute of limitations began with the first implementation of the tax in May of 1993, not with the City Council's adoption of the tax in December 1992. And the court turned away Jarvis' contention that the three-year statute is renewed every time the city collects the tax. Dozens of cities and counties have similar taxes that have been levied without voter approval.

The Second District Court of Appeal has thrown out the results of an election in the City of Sierra Madre because the city violated the California Environmental Quality Act. In a December 1999 decision, the court invalidated an April 1998 election in which voters approved a city-sponsored measure that removed 29 properties from the city's Register of Historic Landmarks. City officials put the issue on the ballot as a way of avoiding a study of the impacts of delisting the properties. But the court said that the city's scheme was illegal. "The removal of the 29 properties from City's list of historical landmarks is a project which requires an EIR because it may lead to a substantial adverse change in the significance of a historical resource," Presiding Justice Mildred Lillie wrote for the unanimous three-judge panel. Because the city failed to comply with CEQA, the election was "fundamentally unfair," and the results must be set aside, the court ruled. The court distinguished between ballot measures voluntarily placed on the ballot by a City Council — which is a discretionary action by the council — and ballot measures that qualify via voter petitions. The council's discretionary action is subject to environmental review, while a voter-sponsored initiative can be exempted. The decision clarifies an area of law that had been confused, namely the applicability of CEQA to projects decided at the ballot box, said Susan Brandt-Hawley, the attorney for Friends of Sierra Madre, which filed the lawsuit. "It doesn't make any sense for a ballot issue that involves a discretionary action to be exempt from CEQA," she said. The Sierra Madre City Council, however, has filed a petition for hearing with the state Supreme Court. In 1987, Sierra Madre established a Cultural Heritage Commission and a regulatory process for protecting structures of cultural and historic significance. Ten years later, the city repealed its ordinance and made future listings on the city's Register of Historic Landmarks voluntary. Properties listed on the registry up to that point, however, remained on the list. Later in 1997, a group of property owners petitioned the city to remove their properties from the register. City planners said delisting would require an analysis under CEQA, at a cost of about $2,500 per property. The city did not want to pay for such studies, nor did property owners, so city staff members recommended placing the issue on the ballot. "The attractiveness of this idea is that the initiative and/or referendum is not subject to the provisions of CEQA," a staff report said. Over the objections of the Cultural Heritage Commission, the City Council placed Measure I-97-1 on the April 1998 ballot. In February of 1998, after the sample ballot and arguments had been prepared, the City Council adopted another ordinance intended to "clarify" Measure I-97-1. The city then sent a letter from the city administrator explaining the new ordinance, as well as an analysis from the city attorney. Voters in April of that year approved Measure I-97-1 by a two-to-one ratio. Friends of Sierra Madre then filed suit, alleging the city violated the Elections Code by not including in the sample ballot the February amendment to Measure I-97-1, the revised arguments for and against the measure, and a required legend. Friends also argued the city violated CEQA because it failed to certify an EIR on each of the 29 properties. Los Angeles County Superior Court Judge Robert O'Brien rejected the CEQA arguments but ruled for Friends regarding the Election Code violations. The city appealed over the Elections Code decision, while Friends appealed the CEQA ruling. The appellate court overturned O'Brien. The court found no violations of the Elections Code. The city's last-minute letters to voters and the extensive public debate ensured that voters knew what they were deciding, the court ruled. However, the appellate court said the city did violate CEQA. In its detailed opinion, the court first dealt with the status of historical resources. Justice Lillie quoted Public Resources Code §21084.1, " uildings ‘included in a local register of historic resources … ' are presumptively historical resources unless the preponderance of the evidence demonstrates otherwise." Because there was no hearing regarding the 29 delisted properties, they were presumptively historical resources, Lillie reasoned. Delisting the properties would be a change in legal status that "may then lead to a change in the significance of that resource." Lillie wrote. Activities that could change the significance of these historical resources, such as alteration or relocation, require a CEQA review, and city officials knew this, Lillie wrote. "Indeed, it is abundantly clear that City submitted Measure I-97-1 to the voters precisely because it believed that such a course of action would create an exception from the requirements of CEQA." The court then addressed CEQA Guidelines §15378 subdivision (b)(3), formerly subdivision (b)(4). This portion of the Guidelines appears to exempt ballot measures from CEQA. However, the court said that the Guidelines are quite narrow and deal specifically with issues decided in Stein v. City of Santa Monica, (1980) 110 Cal.App.3d 458. In that case, the court ruled that the city's act of placing a citizen-sponsored initiative on the ballot was not subject to CEQA because the city was undertaking a ministerial act, and no discretion was involved. That exemption did not apply for Sierra Madre, the court ruled. " he project here encompassed more than submitting a ballot measure to the voters; City here took essential steps culminating in the de-designation of historical resources. In addition to placing a measure on the ballot, City undertook several discretionary actions which committed it to the de-designation of 29 properties at issue in this case. City thus ‘approved' a project subject to CEQA," Lillie wrote. The City Council resolution placing Measure I-97-1 on the ballot qualified as a "project" subject to CEQA. The city should have conducted environmental review beforehand, the court ruled. In its argument before the court, the city relied heavily on Lee v. City of Lompoc, (1993) 14 Cal.App.4th, 1515. In that case, the court ruled that CEQA did not apply to a special election to amend Lompoc's zoning ordinance to permit shopping center development. The court said CEQA would apply to the ultimate project after zoning changes were made. But the Second District said Lee did not apply in the Sierra Madre case because in Lee, the city had already commissioned an EIR. The Lompoc City Council put the issue to voters only because it was deadlocked over the proposed shopping center. "In this regard, the most that Lee properly can stand for then, is the rather banal proposition that when a project has undergone CEQA review, but final approval of the project is sought by ballot measure, the decision to place the matter on the ballot does not itself trigger another CEQA review," Lillie wrote. The city also argued that CEQA does not authorize the court to invalidate an election. The city suggested that the court order environmental review of the 29 parcels prior to city approval of any alterations, or that the court suspend Measure I-97-1 until the city completes an environmental analysis. However, the court said studying the 29 parcels after the election would be an improper post-hoc review. No authority exists for suspending Measure I-97-1, the court added. "We point out that the invalidation of the election in this case is not a matter of discretion of the trial court or of this court; such invalidation results by operation of law (CEQA)," Lillie wrote. The Case: Friends of Sierra Madre v. City of Sierra Madre, No. B129139, 99 C.D.O.S. 9639, filed December 8, 1999. The Lawyers: For Friends: Susan Brandt-Hawley, Brandt-Hawley & Zoia, (707) 938-3908. For Sierra Madre: Michael Zischke, Landels, Ripley & Diamond, (415) 512-8700.

About 1,000 industrial and warehouse jobs would return to downtown Los Angeles if a project proposed next to Chinatown moves forward. However, environmentalists and some neighborhood advocates are fighting the project because they say the area already has enough warehouses. Developer Ed Roski Jr., who recently helped bring the Staples Center to downtown, proposes building a $60 million, 950,000-square-foot warehouse and industrial center called River Station. Roski's firm, Majestic Realty, wants to build the 32-acre warehouse and industrial center on a polluted former rail yard known locally as the Cornfield. Majestic is counting on a $1.2 million economic development incentive grant from the city, which would help pay for soil and groundwater cleanup. The grant is a pass-through of federal Housing and Urban Development funds earmarked for brownfields reuse. Majestic also has applied for a $10.5 million brownfields loan from HUD. However, Friends of the Los Angeles River (FOLAR), the Environmental Defense Fund and some Chinatown groups are lobbying against the brownfields funding. They argue that Chinatown has more pressing needs than new industry. "You basically have a community, the Chinatown community, that has no park and no school, and you have a proposal on that 32 acres of land that could provide those amenities," said Jan Chatten-Brown, attorney for FOLAR. "It doesn't seem like good planning and it seems like a disparate impact on a community of color." City leaders, however, want the property to become an economic asset. The Cornfield (so named because kernels used to blow in from the nearby Capitol Milling plant and sprout on the site) lies within empowerment and enterprise zones, meaning businesses that locate there would be eligible for tax breaks. The Cornfield is zoned for industry, and the adopted Central City North Community Plan also calls for industrial use, said Hadar Plafkin, a city planner. City officials and Majestic representatives note that the area near the Cornfield has remained economically depressed even as nearby areas flourished during the late 1990s. This is partly because distribution and supply companies have moved from downtown to East Los Angeles and the suburbs, said John Hunter, Majestic vice president. "The city of Los Angeles needs manufacturing jobs, particularly in this area," he said. The Majestic proposal would clean up a contaminated rail yard that has become a dumping site, create jobs and provide tax revenue to the city, Hunter argued. But attorneys for project opponents appear to be laying the groundwork for future lawsuits. They contend that the proposed mitigated negative declaration does not adequately address a number of issues and that an environmental impact report should be prepared. State Senator Richard Polanco (D-Los Angeles) also has requested an EIR that provides "a complete and thorough assessment of the presence of hazardous materials" and addresses potential aesthetic impacts on surrounding communities. Furthermore, the National Park Service has asked for an EIR because of the project could physically block the planned Juan Bautista de Anza National Historic Trail and harm 18th Century historic sites. But Plafkin, the city planner, said background material for the mitigated negative declaration is already the size of a small EIR and further study is unnecessary. Majestic's Hunter agreed. "An EIR would reveal no new information regarding the property, it would only slow us down," Hunter said. Opponents also are working to incorporate Title VI of the federal Civil Rights Act into the planning process for the first time in Los Angeles. Robert Garcia, senior attorney for the Environmental Defense Fund, said that Title VI of the Civil Rights Act mandates that the city's land-use planning processes and HUD's method of awarding money must consider a development's impact on people of color. Whether or not the city allows Majestic to build River Station, the trend of redeveloping old industrial sites in the Los Angeles area appears to be strong. "You are seeing a lot of old, single-use industrial sites being cleaned up and reused as new industrial sites," said Larry Kosmont, a Southern California real estate consultant. "They are well-located in urban areas where large pieces of property are difficult to put together." Elsewhere in Los Angeles, a closed General Motors factory is being redeveloped as a 100-acre industrial project, and a former Hughes missile plant is returning as a 70-acre technology and business park, Kosmont said. More projects are on the way because the demand for industrial space is strong and vacancy rates remain low, he said. Plus, companies are looking for more modern facilities than are commonly found in industrial centers in cities such as Los Angeles, Vernon and Commerce, he said. However, because the old industrial sites typically are contaminated and have serious traffic constraints posed by deteriorating, narrow streets, government subsidies are necessary to make reuse possible, Kosmont said. In many instances, environmental groups are happy to see federal brownfields funding clean up industrial pollution. But, with regard to the Cornfield, green organizations argue that the federal government should not subsidize Roski's industrial project. Instead, FOLAR has advanced a plan that calls for schools, parks and neighborhood commercial uses. The city's zoning administrator is likely to make a decision on the level of environmental review and the project's merits early in 2000. The only entitlement Majestic has requested is a variance to eliminate 15-foot setbacks, said Plafkin.

An appellate court has thrown out an environmental impact report for a 17,000-acre-foot water project in El Dorado County because the EIR was predicated on an unadopted, draft general plan. In the same far-reaching opinion, the Third District Court of Appeal ruled that the purchase of three reservoirs by an irrigation district was not categorically exempt from the California Environmental Quality Act because the district planned to provide the water for consumption, which would have been a new use. The court also ruled that the Federal Powers Act did not preempt state law requiring a study of the reservoir purchase. The court provided a broad reading to an exception, known as Section 27, which gives states authority over important rivers used for consumptive purposes. "It's the first such court ruling in the nation," said Stephan Volker, the environmental attorney who argued the case. The court also ruled that the EIR did not adequately discuss baseline conditions, that purchase of the reservoirs was not categorically exempt from CEQA review, and that an irrigation district improperly filed its notice of exemption. The El Dorado County Water Agency and the El Dorado Irrigation District have asked the State Supreme Court to review the case. "There is no law on the books anywhere that says you have to have a general plan in place before you can apply for water rights," Irrigation District attorney Noble Sprunger said after filing a petition with the Supreme Court in mid December. "What the general plan exactly says is of no moment for water agencies," which are independent of the county government, he said. The Third District decided the case in early November but did not publish the ruling. After both sides made strong arguments, the court published the opinion in early December. The decision to publish, which makes the case a statewide precedent, is one reason the Water Agency and Irrigation District have sought State Supreme Court review, Sprunger added. The case stemmed from a plan of the Water Agency and the Irrigation District. They proposed using water from three high Sierra reservoirs to serve a growing population in the western part of the county. They also pursued purchase of the reservoirs from Pacific Gas & Electric. In September 1992, the two water entities prepared a draft EIR that said the water program was intended to meet the needs of growth anticipated in the county general plan update, which was in draft form. The draft EIR concluded that the proposal to divert water for consumptive uses would not alter the way PG&E operated Caples Lake, Silver Lake and Lake Aloha, jointly known as Project 184. The Department of Fish & Game and the League to Save Sierra Lakes (which included environmental groups, homeowners associations and Alpine County) commented that the draft EIR did not address PG&E's historical operation of the lakes, thus limiting the ability to measure impacts. The League also commented that the general plan process was incomplete and that the EIR did not adequately discuss the relationship between growth and water. But the water entities did not change the draft EIR before adopting it in March of 1993. Later that same year, the State Water Resources Control Board rejected the water entities' water rights application for the 17,000 acre feet from the three reservoirs. The water entities submitted a new application, at the same time the Irrigation District began negotiations with PG&E to purchase Project 184. The League to Save Sierra Lakes, DFG and Amador County all filed lawsuits, which were consolidated into one writ petition. (Amador County later settled its claims.) Retired Appellate Justice Winslow Christian heard the case and ruled against the Water Agency and Irrigation District, which then appealed. The water entities argued that the CEQA claims were moot because El Dorado County had adopted a new general plan in 1996, and the Water Resources Control Board approved the water rights application with a number of reservoir operating conditions. However, the appellate court pointed out that a Sacramento County Superior Court later determined the general plan was inadequate in many respects and must be rewritten. (The Superior Court also struck down a revised general plan in 1999. See CP&DR Local Watch, March 1999.) Furthermore, the Water Resources Control Board had reconsidered the water rights application. But the appellate court made clear that environmentalists would still have had a legitimate claim even if the county had adopted a valid general plan in 1996. "In this case, approving a water program before enacting a general plan places the proverbial cart before the horse," Justice Harry Hull wrote for the unanimous three-judge panel. "By proceeding without the benefit of the general plan in place, and by developing projects predicated on needs described in an unadopted plan, the CEQA process is stood on its head," Hull continued. "Instead of proceeding from a more general project to more specific ones, as is commonplace in tiering (see Guidelines §15152), the exact opposite occurs: a specific water project drives the general plan process. The issues become circular: water supply projects are adopted to meet growth plans outlined in a draft general plan, and the general plan is then adopted because an adequate water supply exists for the outlined development plans." But Sprunger, the Irrigation District attorney, said the court's reasoning forces the Board of Supervisors to adopt a general plan that lacks an adequate water supply. Water agencies must take steps to procure water years in advance of its actual need because the water rights process is lengthy, he said. "What the court did was hamstring the planning process by hamstringing the water supply process," he said. The court also ruled that the EIR's description of baseline environmental conditions was inadequate. The water entities and those protesting the water program differed on what information the EIR contained, but the court said the EIR should be easier to understand in any case. "It may well be that by cobbling together information included in and appended to the EIR, a reader might be able to calculate historic flow releases and gain a better understanding of how PG&E had operated the lakes in the past and how defendants intended to operate them in the future," Hull wrote. "But such an effort should not be necessary. An adequate EIR requires more than raw data; it requires also an analysis that will provide decision makers with sufficient information to make intelligent decisions." As for the Project 184 purchase, the Irrigation District argued that the Federal Powers Act preempted CEQA. But the court said §821 of the Federal Powers Act (commonly called Section 27) lets states control appropriation or distribution of water used for irrigation or municipal uses. The Project 184 purchase falls within this exception because the ownership change also entailed a "shift from a single-purpose hydroelectric project to multipurpose use that also permits consumptive use of water," the court ruled. The court also said CEQA review would not interfere with federal energy licensing procedures. Environmental attorney Volker said this was a significant widening of Section 27, which courts "have given lip service to" in the past. The court further rejected the Irrigation District's argument that the lawsuit over the CEQA exemption was filed too late. Normally such challenges must be submitted within 35 days of the filing of the notice of exemption. However the court ruled that the deadline to challenge the exemption was 180 days because the notice of exemption was defective. The Irrigation District argued that it approved the project — the purchase of Project 184 — on December 12, 1994, when the Board of Directors authorized the district manager and counsel to begin negotiations with PG&E. The district filed the notice of exemption in April 1995. However, the court ruled that the December 1994 resolution did not "constitute project approval as nothing in this resolution commits the district to purchasing Project 184." Instead, the court determined, project approval occurred in September of 1995 when the district entered into an asset sale agreement. The plaintiffs filed their lawsuit the following month, and amended it in December of 1995 to name PG&E, well within the 180-day deadline. The irrigation district also argued that the reservoir acquisition could bypass CEQA based on the "existing facilities" exemption or the "ongoing project" exemption. But the court ruled, "A project that shifts from nonconsumptive to consumptive use is not a negligible expansion of current use. It is a major change in focus, and thus does not fall within the ‘existing facilities' categorical exemption." For the same reasons, the court rejected the "ongoing project" argument. The Case: County of Amador v. El Dorado County Water Agency, No. C027948, filed November 3, 1999, certified for publication December 3, 1999. The Lawyers: For El Dorado Irrigation District: Noble Sprunger, (530) 642-4155. For El Dorado County Water Agency, James Moose, Remy, Thomas & Moose, (916) 443-2745. For Department of Fish & Game, Charles Getz IV, assistant attorney general, (415) 356-6348. For League to Save Sierra Lakes, Stephan Volker, Brecher & Volker, (510) 496-0600.

In its own way, Grand Avenue in downtown Los Angeles is as strange and fantastical as the imaginary towns in Italo Calvino's Invisible Cities. One of the Italian novelist's inventions is Armilla, a city that consists of nothing but a forest of water pipes, where beautiful women shower. Another is Morlana, which has a gorgeous fa�ade of alabaster gates and coral columns, which hides a pile of trash. Yet another city is a sphere made up of twisted roads designed to prevent a woman from escaping. Unlike Calvino's cities, Grand Avenue is real, not imaginary. Even so, the description of this strange street could easily fit into the Calvino catalogue of fantasy cities without being noticed. Consider the following: Bunker Hill had been the affluent part of downtown in the late 19th Century, and later became a ramshackle collection of charming, if dilapidated, houses. The city bulldozed all the houses on the hill, which then stood bare for more than 10 years while city fathers argued about what to do build next. Eventually, they decided to build office towers, and the hill became choked in a superstructure of steel. In the course of building this city-in-the-sky, it became necessary to haul away all the dirt. Nothing was left of the hill, except the street, which by now had become an absurd bridge in the air. Beneath the bridge was another street, with the same name, where unglamorous necessities like loading docks and parking entrances were hidden. Absurd or not, Grand Avenue is one of the most important streets downtown, and is quickly growing more important. The street is the home of the most important Los Angeles County buildings, the Los Angeles Music Center (the city's Yorty-era answer to Lincoln Center), the Museum of Contemporary Art and the new Colburn School of Music. Those buildings are soon to be joined by the new Cathedral of Los Angeles and the long-deferred Disney Concert Hall, the future home of the Los Angeles Philharmonic and a likely successor to City Hall as the postcard image of Los Angeles. What is odd is that Grand Avenue � where some of the city's largest and most expensive buildings currently are rising �functions poorly as a street. Like Fifth Avenue in New York, Grand Avenue is a street of very large buildings that do not seem to form a continuity among each other. Further adding to the sense of discontinuity, a portion of the street is a bridge, which creates an unwelcome gap in the procession of buildings. Yet another issue is this street-in-the-air's poor connection to the rest of downtown. These problems are not minor ones on a street that both Mayor Richard Riordan and the city's Community Redevelopment Agency want to make into the city's official "arts corridor." One part of the solution is a design by local architect and urban planner Doug Suisman, who was commissioned by the Community Redevelopment Agency. Borrowing an idea from Barcelona, Suisman proposes a wide, green median that runs down much of Grand Avenue. This median acts as more than mere landscaping: Instead, this "ramblas" is a social space, inhabited by series of small cafes, cart vendors and news stands. Although the design concept is foreign to Los Angeles, it is a simple, affordable and convincing solution to several vexing problems on Grand Avenue. The ramblas would provide badly needed social space that can serve as a kind of receptacle for people who are milling around before a concert, or who have just heard Mass at the cathedral and who want to get a cup of coffee before taking a gander at the latest head-scratching exhibit at the Los Angeles Museum of Contemporary Art. Almost as important, the ramblas could also provide Grand Avenue with the continuity currently lacking on the street by providing the unifying, horizontal condition that would otherwise be impossible to provide. Adequate space exists in the city's right of way to create the ramblas without impacting traffic lanes, although wide sidewalks would be precluded. In short, the ramblas promises to make Grand Avenue into a wonderful, socially active street, rather than a parade of mutually unacknowledging large buildings that line the boulevard like a sullen set of giant chess pieces. With such an inspired design choice, what could go wrong? Politics, of course. Grand Avenue may be officially under the purview of the redevelopment agency, but the CRA does not have as much clout as it formerly did. (A former councilman successfully sued the agency to prevent the lifting of the agency's debt cap; the suit effectively hobbled the agency's ability to underwrite large projects, and, in turn, to offer incentives to developers who would otherwise be deaf to the agency's urban-design agendas. See CP&DR Economic Development, March 1999.) Both the mayor and the cardinal are reportedly enthusiastic about the ramblas, but the Music Center and Disney Hall have been silent. If they actively oppose the landscape project, the redevelopment agency may or may not be able to push the project through over their objections. Worse, both the Music Center and Disney Hall are projects that are under the jurisdiction of Los Angeles County, which often quarrels with the City of Los Angeles about the county's projects in the downtown area. Frank Gehry, the architect of Disney Hall, has said that he wants wider sidewalks in front of the concert venue, which could narrow the street, taking away some of the width needed to accommodate the ramblas. In the absence of a master plan for the arts corridor, individual institutions seem to be vying for primacy and control of the street. Can it be true that Grand Avenue's institutions are unaware that a vibrant street would benefit them? Los Angeles has shown that it is willing to campaign and raise tens of millions of dollars for the Disney Hall, whose price tag has reached $274 million. But is the city willing to campaign with comparable ardor for a project has far fewer capital needs � about $5 million to $6 million � yet would contribute nearly as much to downtown? Of all the absurdities that make up Grand Avenue, the greatest would be that the street's powerful cultural institutions would decide against making the street into a sensible place. Arts institutions that ostensibly seek to enhance our lives should walk their talk on Grand Avenue.