The City of Montclair's ordinance controlling rents in mobile home parks is constitutional, the Fourth District Court of Appeal has ruled. The court rejected mobile home park owners' argument that the ordinance was a regulatory taking without compensation. Citing the California Supreme Court's decision in Santa Monica Beach, Ltd. v. Superior Court, (1999) 19 Cal.4th 952, the appellate court ruled that "a rent control ordinance is a regulatory taking if it is an arbitrary regulation of property rights." (See CP&DR Legal Digest, February 1999.) In Montclair, the City Council adopted its ordinance to protect mobile home owners' equity in their homes, and to protect prospective park tenants from excessive rent increases. These are "legitimate government interests," the court concluded. In continuing California courts' generous attitude toward rent control ordinances, the unanimous three-judge appellate panel dealt extensively with the proper way to test the constitutionality of an ordinance. The court ruled that important takings cases upholding a landowner's development rights are not applicable to rent control controversies. The Montclair City Council adopted the ordinance in question on June 20, 1998. The ordinance amended a previous rent control measure that allowed park owners to raise rents as much as they wished when a mobile home owner sold the unit. Plus, a study commissioned by the city found that park owners were skirting the prior ordinance by requiring prospective tenants to sign long-term leases that were exempt from the rental control ordinance. The prospect of having to pay higher rents discouraged some potential mobile home buyers. The study said that these limitations on the ability to sell mobile homes resulted in more homes being abandoned, which placed them in the hands of park owners. Thus, the city adopted new regulations that precluded park owners from requiring tenants to sign long-term leases, and limiting rent increases upon sale of a unit from 3% to 8% annually, depending upon the Consumer Price Index. The ordinance also allowed park owners to apply for higher rents based on operating costs, taxes and capital improvements. Park owners also could file an application for higher rents with the city's Park Mediation Committee, whose decisions were appealable to the City Council. On August 18, 1998, park owners filed a lawsuit complaining that the ordinance was unconstitutional on its face. Park owners argued that enactment of the ordinance amounted to inverse condemnation. Park owners did not raise issues of federal constitutionality, instead leaving those for a federal court to decide. Riverside County Superior Court Judge Peter Norell sustained the city's demurrer, and the park owners appealed. Park owners argued that the court should follow the decision of the Ninth U.S. Circuit Court of Appeals in Richardson v. City and County of Honolulu, (9th Cir. 1997) 124 F.3d 1150. In that case, the Ninth Circuit ruled that Honolulu's rent control ordinance was a regulatory taking because, as written, the ordinance did not advance its legitimate stated goal of creating more affordable housing. But the unanimous Fourth District, Division Two, panel said Richardson was not applicable because the Ninth Circuit used the Agins-Nollan test in striking down the Honolulu law. Under the Agins-Nollan test, an ordinance is unconstitutional if it fails to substantially advance a legitimate government interest and it deprives a property owner of all economically viable uses of his property. Agins v. Tiburon, (1980) 447 U.S. 255; Nollan v. California Coastal Commision, (1987) 483 U.S. 825. However, the precedent from these landmark cases does not extend to rent control plans, the court said. In City of Monterey v. Del Monte Dunes at Monterey, (1999) 119 S.Ct. 1624, the U.S. Supreme Court "acknowledged that it had never extended the Agins-Nollan test beyond cases involving regulations requiring dedication of private property for public use as a condition of the issuance of a land development permit," Presiding Justice Art McKinster wrote for the three-judge appellate panel. (See CP&DR Legal Digest, June 1999.) Furthermore, the state Supreme Court in Santa Monica Beach ruled that the Agins-Nollan test does not apply to general rent control laws. "Instead, the court adopted a more deferential standard of review, reasoning that general rent control laws are ‘essentially legislative determinations that do not require any physical conveyance of property,'" McKinster wrote. The same reasoning that applies to general rent control laws — the Santa Monica law that the court upheld was aimed at apartments — should apply to mobile home rent control, the appellate court ruled. "The proper inquiry in determining whether a rent control scheme applicable to mobile home parks is a regulatory taking under the California Constitution is whether such a scheme is an arbitrary regulation of landowner's property rights," McKinster wrote. With little discussion, the court held that protecting current mobile home owners' equity and protecting prospective park tenants from excessive rents are legitimate government interests. Thus, the Montclair ordinance is not an arbitrary regulation, the court concluded. The Case: Montclair Parkowners Association v. City of Montclair, No. E024137, 99 C.D.O.S. 9453, 1999 Daily Journal D.A.R. 12197, filed December 2, 1999. The Lawyers: For Parkowners: Robert Coldren, Hart, King & Coldren, (714) 432-8700. For Montclair: Diane E. Robbins, Robbins & Holdaway, (909) 627-1503.

Five California waterways are in the running for federal funding in a new program to help restore and protect their environmental features while building protection against floods. A federal water bill signed by President Clinton last August listed the waterways. The program is another sign of a dramatic shift in how the U.S. Army Corps of Engineers approaches flood control. Instead of trying to control water flows and protect every structure from harm's way, under the new Challenge 21 (also called Section 212) program, the Corps will remove people and structures from places where there has been repeated flooding. Rather than adding more concrete, dams and levees, flood control efforts will incorporate natural features, provide more open space along waterways, and encourage habitat and wetlands restoration. The bill for the five-year demonstration project provided that "studies and projects shall emphasize, to the maximum extent practicable and appropriate, nonstructural approaches to preventing or reducing flood damages." "It represents a new way of thinking about the flood plain," said Michael Davis, Deputy Assistant Secretary of the Army for public works. "While structural approaches have worked well in the past, and will continue in some cases to work well in the future, we want to make sure that nonstructural options are considered fully." The Challenge 21 program should, Davis said, "demonstrate that nonstructural approaches and ecosystem restoration ... is a good thing and will reduce flooding and improve our environment." The bill authorized $200 million over five years, with the first allocations expected after October 2000. Local and state governments must pay up to 35 percent of the cost of any environmental restoration or nonstructural flood control project, and the federal government picks up the rest of the tab. The five California waterways named as priority areas are: o The Coachella Valley in Riverside County. o Murrieta Creek in Riverside County. o Napa River watershed, in Yountville, St. Helena, Calistoga, and American Canyon. o Santa Clara basin, including the Upper Guadelupe River and its tributaries, San Francisquito Creek, which runs through Palo Alto, Menlo Park and East Palo Alto, and Upper Penitencia Creek. o Los Angeles and San Gabriel Rivers. California has the largest number of priority areas in the legislation, followed by Pennsylvania with three waterways. Davis said he expects that ultimately 10 to 15 projects will be funded under Challenge 21, even though the bill listed 23 priority watersheds. And with a cap of $30 million per project, it is unlikely that the concrete-lined Los Angeles River will be torn up. More likely, the money might fund a small wetlands restoration along the river, he said. Guidelines for projects should be released in several months, and Davis expects communities outside the priority areas might also to apply for funds. "Listing projects simply means that when money is appropriated for Challenge 21, these are probably the projects that will be considered first," said Peter Moreno, water resources project assistant with the National Wildlife Federation in Washington, D.C. "Authorization of Challenge 21 does not guarantee that these projects will be funded. That is up to the appropriations process." The Clinton administration had requested $325 million for the program. "Overall," Moreno said, "Challenge 21 was a major accomplishment, even though the funding levels were below the administration's request. The Corps' ability to carry out voluntary property buyouts and other nonstructural alternatives will help to direct floodplain management in this country toward more sustainable, environmentally friendly ends." "I think it's great," said Ron Stork, senior policy advocate for Friends of the River in Sacramento. While applauding the new program, Stork added, "the demand far exceeds the resources." The program adopted by Congress incorporates many of the features of a $200 million project already underway in Napa Valley to restore the Napa River. Most of that money is designated for the city of Napa, which has experienced regular flooding from winter storms during the last 10 years. (See CP&DR Environment Watch, May 1998.) Up to 675 acres of marshes and wetlands are being restored or preserved, trees and bushes are being planted and a recreational trail is planned. A total of $6 million in local funding is being provided through a voter-approved sales tax. The Napa program was developed through negotiations between local officials and the Army Corps of Engineers and marked a shift from the Corps' traditional role of dam-builder. With funding from the Challenge 21 program, more money could be spent on river restoration and flood control outside Napa in other parts of the county, according to County Supervisor Mike Rippey. While efforts to restore the Los Angeles and San Gabriel Rivers are moving slowly, proponents see the possible money as a way to restore parts of the rivers to a more natural state. A meeting to discuss the new program with the head of the Army Corps of Engineers and local environmentalists was planned for mid-December, said Melanie Winter, executive director of Friends of the Los Angeles River. Additional money may be provided to river restoration projects in Los Angeles County if separate parks and water bonds pass during March's state primary, she said. Money could be used, among other ways, to remove industrial warehouses lining river banks to create more open space, or to add retention basins to save water and reduce the amount of stormwater in the river beds. The new approach by the Army Corps of Engineers is not the only change in flood control efforts at the federal level. The Federal Emergency Management Agency has taken a harder line in recent years toward rebuilding in areas recovering from floods. The House of Representatives is considering a bill, co-sponsored by Representative Doug Bereuter, (R-Nebraska) and Rep. Earl Blumenauer (D-Oregon), that would restrict property owners from retaining subsidized federal flood insurance if their properties have been damaged more than once. The bill, H.R. 2728, has the official title of "Two floods and you are out of the taxpayer's pocket act of 1999." Another similar bill, H.R. 1297, the Repetitive Flood Loss Reduction Act, sponsored by Rep. Ken Bentsen, (D-Texas) has also been introduced. Davis said the Corps intends to work with other federal agencies such as FEMA, EPA and the U.S. Department of Agriculture as it plans the projects. Contacts: Michael Davis, Deputy Assistant Secretary of the Army for Civil Works, (703) 697-3366. Ron Stork, Friends of the River (916) 442-3155. Peter Moreno, National Wildlife Federation (202) 797-6697. Mike Rippey, Supervisor, Napa County (707) 253-4386. Melanie Winter, Executive Director, Friends of the LA River, (323) 223-0585.

With complaints rising in Sonoma County regarding the expansion of vineyards, county officials have adopted regulations for grape planting. However, at least some environmentalists and homeowners believe the restrictions are inadequate, and the protests show no sign of abating. Within the last year or so, the amount of Sonoma County property planted as vineyards has surpassed the acreage in the county's nine incorporated cities. Environmentalists and homeowners complain that these new vineyards erode topsoil, deplete groundwater supplies, contaminate the environment with pesticides and ruin wildlife habitat. Grape growers say these concerns are exaggerated and contend that there is no reason to worry about what some have termed "runaway vineyard development." The Sonoma County Board of Supervisors responded to the controversy by approving an ordinance, scheduled to take effect this year, that prohibits vineyard planting on slopes of at least 50%, calls for erosion control measures on slopes of at least 15% and mandates a 50-foot setback from riparian corridors. The new rules have made grape growers happier than environmentalists, and a study by the University of California Cooperative Extension in Hopland demonstrated why. "A very, very small amount of previously developed vineyards and lands most suitable for future planting would fall under this ordinance," said Adina Merenlender, a UC Cooperative Extension specialist. "The bottom line is that farmers did a very good job of protecting themselves." The Board of Supervisors makes no apologies for supporting growers. Although the wine industry employs only about 8,900 people countywide, or about 4% of the work force, wine has become the county's signature. Even Supervisor Mike Reilly, the supervisor most sympathetic to environmental causes, was quoted in the Santa Rosa Press Democrat as saying, "Ag in whatever form is vastly preferable to subdivision development." Fifteen years ago, subdivisions were the big worry in Sonoma County, where the traditional apple, prune and dairy industries were declining. However, grape growing was taking off. From 1985 to 1999, the amount of land planted with vineyards increased from about 30,000 acres to 52,000 acres. This growth occurred because of higher sales of more expensive wines (Sonoma County grapes are used for premium varietals) and because the neighboring Napa Valley has almost no land remaining for additional vineyards. Most new Sonoma County vineyards replaced other agricultural uses, namely orchards and pasture. However, vineyards have supplanted about 2,000 acres of dense oak woodland since 1990, according to Merenlender. This is worrisome because planting even small vineyards in an area that supported oaks is fragmenting habitat and forcing species to survive in smaller areas, she said. A four-month-old, Occidental-based group called Town Hall Coalition is leading the vineyard opposition. The organization attracted crowds of at least 200 people to each of three forums it has conducted. "This summer, everything changed," said Lynn Hamilton, a Town Hall Coalition leader and former Sebastapol city councilwoman. Vineyards had been seen as valuable assets, she said, but homeowners and real estate agents have begun complaining about wells running dry, pesticide spraying, and the loss of a diverse ecosystem. "You just can't believe the panic in all of these little communities after we nurtured this (agriculture) for so many years," Hamilton said. "This is Gallo, this is Kendall-Jackson. This is corporate, industrial vineyards. … It's slash and burn agriculture." Town Hall Coalition calls for regulating groundwater, preventing new vineyards on slopes of greater than 30%, limiting lot coverage to 75%, mandating erosion control systems that can handle 100-year storms, building wildlife corridors and animal-friendly fences, and implementing stronger state pesticide regulation. Grape growers say opponents paint an unfair picture and Town Hall Coalition proposals are unnecessary. Only 5% of Sonoma County is planted in grapes, and 80% of vineyards are smaller than 100 acres apiece, according to Nick Frey, executive director of the Sonoma County Grape Growers Association. Also, grapes require less water than apples, vegetable crops or houses. Growers also argue that the pesticide threat is overstated and assert that 75% of pesticides used are sulfur, which can be applied even to certified organic produce. State inspectors have found no instances of groundwater contamination linked to legal pesticide use in the last 10 years, growers say. Still, grape growers must contend with negative perceptions in Sonoma County and elsewhere for the first time. A recent poll of 700 Sonoma County voters by Richard Herzog Consulting of Bodega Bay found the industry enjoys a very strong reputation. Still, about half of respondents supported new regulation of vineyard expansion. The public has rallied for a variety of reasons. Kendall-Jackson's cutting of 800 oak trees when the Santa Rosa company converted a 1,400-acre cattle ranch to a vineyard in Santa Barbara County two years ago created a storm of protest. The Kendall-Jackson activity led to a county initiative — which voters defeated in 1998 — that would have required a permit to cut an oak tree. At about the same time, Gallo began clearing forested hillsides in Sonoma County's Russian River Valley, stirring public discontent. Last year, some San Luis Obispo County environmentalists and ranchers made strange bedfellows in calling for a halt to the conversion of ranches to vineyards. The county does not regulate vineyard planting. Instead, the construction of large wineries on agricultural land is the bigger issue, said Mark Hutchinson, environmental specialist at the San Luis Obispo County Planning Department. Since 1996, the county has approved 34 new wineries and nine expansions, ranging from farmhouse conversions to a 700,000-square-foot facility. The industry is under a microscope now, more so in Sonoma County than anywhere, conceded Barry Bedwell, president of the Fresno-based Allied Grape Growers. "The wine-grape industry is aware and is attempting to be sensitive to these issues that are being raised," Bedwell said. Grape growers need to bridge the gap with environmentalists and the "urban sector," he said. Sonoma and Napa counties are farthest along in regulating vineyard activity, although Santa Barbara County now uses a grading ordinance to regulate some planting. Still, the rules are limited. Any efforts to regulate the industry are a concern, Bedwell said. Whether grape growing will continue to expand in Sonoma County is debatable. California has about 507,000 acres of vineyards, nearly one-quarter of which were planted during the last five years, Bedwell reported. Growers suggest much of the Sonoma County land best-suited for vineyards has already been planted. Using a geographic information system, the UC extension determined that about 158,000 additional acres are at least somewhat suitable for new vineyards. However, UC's Merenlender said some of that acreage is marginal land where planting is unlikely, and she emphasized the figure is not a prediction. Contacts: Lynn Hamilton, Town Hall Coalition, (707) 874-9110. Barry Bedwell, Allied Grape Growers, (559) 276-7021 Adina Merenlender, UC Cooperative Extension, (707) 744-1270.

California's Central Valley, the most important part of the state's giant agriculture industry, will have three times as many residents in 2040 as it does now, according to demographers. The conflict between population growth and farming is driving many planning efforts, some of which are including urban growth boundaries as a means of protecting agriculture. The growth-boundary concept is not new in the Central Valley. Tulare County and its largest cities have had urban growth boundaries for 20 years, and Yolo, Sutter and Butte counties have perimeter control lines intended to protect farmland. Sacramento, Fresno, Merced and Kings counties have expansion lines of sorts, although they seek to direct urban growth, not contain it. Now, the idea is spreading: • In Stanislaus County, ballot measures creating urban growth lines in the county and in nine cities appear headed for the November election. • In Fresno, a coalition of farm, building and business interests is urging city leaders to adopt the Tulare model as part of the Fresno general plan. • In Bakersfield, an urban limit is likely to be considered during the city's general plan update. • In Redding, a new general plan is likely to include limit lines to encourage infill. "I think you will hear more about that in the Central Valley," said Erik Vink, California policy director for the American Farmland Trust. "We're always picking up on these trends from elsewhere. The Bay Area has kind of been the laboratory for this type of land-use idea." Contra Costa County has had a voter-approved urban limit line since 1990, although slow-growth advocates would like to tighten it. More than two years ago, Stanislaus County growth-control advocates began working on urban limit line initiatives for the county and its nine cities. The proposed Future Options on Development (FOOD) initiatives would have urban limit lines coincide with existing general plan boundaries for the cities and with community plan boundaries for about two dozen unincorporated areas, explained Denny Jackman, president of the group called Growth Orderly, Affordable, Livable (GOAL). The intent is to stabilize the farmland base and protect the environment and open space. The boundaries would establish "a budget on land" that could be developed, Jackman said. "Instead of looking inside out, they would have to stand at the boundary and look within." Initiative backers are strongly considering language that would allow changes in the urban limit lines only by a vote of the electorate, he added. Organizers of GOAL have presented the Stanislaus County Board of Supervisors and most city councils with the proposed initiative language in hopes that the elected officials will place the measures on local ballots. Thus far, no elected body has agreed to put the FOOD initiatives to a vote. But Jackman is confident GOAL can acquire enough signatures to qualify the initiatives for the November 2000 election. Many people equate problems such as long commutes and crime with "the runaway kind of growth we have going on," he said. In Fresno, urban growth boundaries received a boost from the Growth Alternatives Alliance, a diverse group that includes the American Farmland Trust, the California Farm Bureau, the Building Industry Association of San Joaquin Valley, and the Fresno Business Council. The Alliance, which last year produced the Landscape of Choice report that called for moderate growth reforms, has recommended establishing an urban growth boundary for Fresno. The boundary would be expandable as the city hits certain population and buildout thresholds. The first boundary, at about the existing sphere of influence, could accommodate up to 650,000 people, said Greg Kirkpatrick, of the AFT's Fresno office. The ascending boundaries would accommodate another 150,000 people each, up to 1.1 million. "It's a testament to how unified our consensus is as to where growth should be directed in Fresno, and that is to the northeast and the foothills," Kirkpatrick said. "Our recommendations include firm growth boundaries that preclude growth into prime agricultural areas in southeast and southwest Fresno." The idea is young in Fresno, but it could receive a favorable reception at what has been a pro-growth City Council. In December, Mayor Jim Patterson advocated keeping the next 20 years of growth within the current sphere of influence because, he said, Fresno (population 415,000) could grow to 700,000 within that sphere. While farming advocates were pleased with Patterson's suggestion, even the AFT's Kirkpatrick questioned Patterson's assumptions because so little market demand exists for infill projects, especially in the depressed downtown. The Growth Alternatives Alliance proposal is based on existing policy in Tulare County, where the county and its cities have had growth boundaries for two decades. When certain thresholds are met, the elected bodies may expand the boundaries to the next pre-established limit, said Steve Brandt, Visalia senior planner. Visalia, the county's largest city, has three boundaries that roughly correspond to projections for 2000, 2010 and 2020, he said. That city has reached the first population threshold of 98,700, but not the buildout minimum of 70% for residential land and 80% for commercial property, he said. Visalia leaders advocate concentric growth around the core of the city, Brandt said. The urban growth boundary protects agricultural land for as long as possible. The boundary, which is incorporated in the general plan land-use element, also serves as a basis for other documents, such as the sewer master plan, Brandt said. The growth boundaries work well in part because of inter-governmental cooperation, Brandt added. The county has designated land with 20-acre minimum lot sizes around Visalia. "Luckily for us, Tulare County is very big about preserving agricultural land," he said. Growth Alternatives Alliance members recognize that cooperation is important because a neighboring jurisdiction with open arms for developers would ruin the whole point of a growth boundary. The Alliance recently helped organize the first meeting of the Fresno County Board of Supervisors, the Fresno City Council and the Clovis City Council. However, the meeting rapidly fell apart as officials got bogged down in a revenue-sharing debate. The lack of regional cooperation has also been an issue in Kern County, where the county and the City of Bakersfield at times have competed to entice developers. Still, the advantages and disadvantages of growth boundaries are likely to be discussed during Bakersfield's general plan update, which is getting started, said Bakersfield Development Services Director Jack Hardesty. Such boundaries fell out of favor during the 1980s when the county had a growth line that was too easily amended. "They didn't hold the line, literally," he said. But, he added, "it will come back as a proposal from the Smart Growth Coalition, I'm sure. They are coming out as a fairly strong voice." The Coalition, which successfully lobbied for reestablishment of a planning commission in Kern County, "supports any policies that will get us to our goals," Executive Director Pauline Larwood said. The seven-year-old organization advocates infill, redevelopment, compact design, and protection of the farming, oil and defense industries. Larwood said the Coalition has urged the Planning Commission to consider Tulare County's system because "it appears to have resulted in more contiguous development." Interestingly, it might be agriculture that forces creation of some type of boundary in Kern County. Recent proposals for giant dairies southwest of Bakersfield met with strong resistance from homeowners, causing Supervisor Ken Peterson to propose designating a greenbelt around Bakersfield to separate residential and agricultural uses. At the north end of the Central Valley, in Redding, the revised general plan will probably contain "primary and secondary growth areas," according to Senior Planner Kent Manual. The primary growth area will roughly correspond to the city limits of Redding (population 79,000), which already cover 59 square miles. Large tracts of land for residential and commercial development remain available. Plus, there is some consensus for slowing the spread of ranchettes on the city's east and northwest sides because those three- to ten-acre spreads use land inefficiently and preclude future planning options, he said. Whether growth boundaries will be the tool of choice or not, it is clear that experts and, to a lesser extent, the general public are talking about land-use choices in the Central Valley. That is the good news, said Carol Whiteside, president of the Modesto-based Great Valley Center, because accommodating the projected trebling of population during the next 40 years and preserving agriculture will take strong planning. "There's a growing awareness of the valley. People are starting to pick up on the issues," she said. "From my point of view, we're still early enough to make some of these decisions." Contacts: Denny Jackman, Growth Orderly, Affordable Livable, (209) 526-5821. Greg Kirkpatrick, American Farmland Trust, (559) 627-3708. Pauline Larwood, Smart Growth Coalition, (661) 363-0218. Jack Hardesty, Bakersfield Development Services Department, (661) 326-3733. Carol Whiteside, Great Valley Center, (209) 522-5103. Kent Manual, Redding Planning Department, (530) 225-4029.

Construction of a 130-foot-tall cellular telephone transmission tower does not constitute inverse condemnation of a neighboring property from which residents can see the tower, the Third District Court of Appeal has ruled. In a case from Butte County, the court also ruled that the tower did not constitute a nuisance because it did not harm neighbors' use of their property. " hile we have sympathy for plaintiffs' plight, not all plights give rise to legal rights," Justice Daniel Kolkey wrote for the unanimous three-judge panel. "Since a landowner has no natural right to an unobstructed view, the size and shape of an otherwise lawful structure on one side of a boundary cannot be deemed either to damage (for purposes of inverse condemnation) or to interfere with the enjoyment (for purposes of nuisance) of that which is on the other side of the boundary." In about 1990, John and Joyce Permann leased a portion of their 2.5-acre property near Oroville to allow construction of a 110-foot transmission tower. The tower and a cargo container for a service module were placed on the site and surrounded with a chain link fence. In 1994, Cellular One sought a permit from Butte County to upgrade the facilities. County planners approved the project, which involved a new tower 20 feet taller than the existing one, a small concrete outbuilding and a new fence. The tower is 41 feet from the property line shared by the Permanns and their neighbors, Melvin and Brigitte Oliver. The corner of the outbuilding is 13 feet from the property line, and the fence is within seven feet. The Olivers filed a lawsuit against Butte County, the Permanns and three cellular telephone companies seeking damages and an order rescinding the use permit for the new tower. The Olivers alleged nine causes of action, including inverse condemnation, nuisance, fraud/intentional misrepresentation, and fraud/negligent misrepresentation. Butte County Superior Court Judge Roger Gilbert issued a summary judgement for the defendants. On appeal, the Olivers argued that the design, maintenance and operation of the tower decreased their property value, so they were entitled to damages based on inverse condemnation. But the appellate court rejected this argument for several reasons. First, the court said loss of property value in and of itself does not establish inverse condemnation. The California Constitution, article I, §19, speaks to compensation when private property is taken or damaged for public use. In this case, no public entity took or damaged the Olivers' property, the court concluded. Second, because the Permanns are private individuals without the power of eminent domain, "no cause of action for inverse condemnation could be maintained against them," the court ruled. Thirdly, the Olivers' did not prove that their property had been taken or damaged. In fact, the Olivers' testified that although they could see the tower and hear a hum when outside, their daily activities were not impacted. " he burden imposed on plaintiffs' property by the new tower and its attendant equipment does not resemble the type of perceptible intrusion, such as strong odors, overpowering noise, dust, vibration, or the loss of light, which directly and substantially burden the property so as to give rise to an inverse condemnation claim," Justice Kolkey wrote. He continued, "There is no authority for the proposition (and the parties cite none) that plaintiffs are entitled to compensation merely because a large, unattractive structure went up next door." The court also noted that the Olivers' never complained about the previous tower, which was only 20 feet shorter. As for the nuisance claim, the court ruled that "the essence of a private nuisance is its interference with the use and enjoyment of land." A neighboring property must be more than visually unpleasant to qualify as a nuisance, the court said. The Case: Melvin E. Oliver v. AT&T Wireless Services, No. C029233, 99 C.D.O.S. 9332, 1999 Daily Journal, D.A.R. 12003, filed November 29, 1999. The Lawyers: For Oliver: James McKenna, Peters, Rush, Habib & McKenna, (530) 342-3593. For AT&T: Kevin Iams, Weintraub, Genshlea & Sproul, (916) 558-6025.

Less than 10 miles north of the Cornfield, Walt Disney Co. has proposed a large "creative campus" on the grounds of the former Grand Central Air Terminal, a Glendale airport that closed in 1959. Disney's plans are sketchy, but the entertainment giant has revealed plans for four district projects on the site: a 52-acre campus to house the theme park research and development operations; a 24-acre soundstage and production facility; a 27-acre media and technology campus that would have space available for lease; and another 18 acres of development to meet company or market needs. Disney was one of the earliest tenants of the Grand Central Industrial Park, which replaced the airport shortly after it closed. About 3,000 Disney research and development employees work on the site. Disney purchased the property in 1997. The site is within Glendale's 750-acre San Fernando Corridor Redevelopment Project Area, which has not seen a great deal of activity since the city created it in 1992, said Philip Lanzafame, assistant director of development services. The project is in the environmental review process, and documents are scheduled to be released this spring. City officials also are negotiating financing packages with Disney, although Lanzafame said he could not disclose the details of those talks. Contacts: John Hunter, Majestic Realty, (562) 692-9581. Hadar Plafkin, Los Angeles Planning Department, (213) 580-5554. Jan Chatten-Brown, Chatten Brown & Associates, (310) 474-7793. Larry Kosmont, Kosmont & Associates, (213) 623-8484. Philip Lanzafame, Glendale Development Services Department, (818) 548-2005.

As a booming economy continues to drive up housing prices, California's top officials are placing a higher priority on housing issues in the year 2000. But with Democrats firmly in charge in Sacramento, the state's efforts appear likely to focus on providing more public assistance for housing, rather than pushing for a dramatic reform on policy issues such as the housing element law. Gov. Gray Davis appears ready to give higher priority to housing issues in his second year in office than he did in his first. Business, Housing, and Transportation Secretary Maria Contreras-Sweet stated last fall that, with water and parks bonds already placed on the March ballot, the administration would focus this year on putting housing and transportation bonds on the November ballot. And in December, Davis received praise from housing advocates across the political spectrum by appointing former Assemblywoman Julie Borenstein as director of the Department of Housing and Community Development. Meanwhile, legislative leaders also are likely to move on housing issues. Senate Housing Committee Chair Richard Alarcon, a Democrat who represents the San Fernando Valley, held a special "housing summit" at UCLA earlier this fall and declared that if the issue of affordable housing for working and middle-class Californians is not solved, "it will undermine our future." New Census Bureau statistics suggest that California's housing construction is not keeping up with either job growth or population growth. The Census reported in December that California had added 854,000 new housing units between 1990 and 1998 — a 7.6% increase and, in actual units, the second-highest total in the nation behind Florida. But the number of new homes was behind the state's increase in new households, which totaled more than 1 million during this period. Furthermore, California's percentage increase in housing construction lagged far behind all neighboring states, including Nevada, which led the nation with a 47.8% rise. Several reports have concluded that the state is now adding approximately three jobs for every housing unit constructed, The ratio is as high as 9:1 in economically booming Santa Clara County, where home prices have doubled in the last three years. And the California Building Industry Association recently reported that 15 of the 25 most "unaffordable" metro areas in the nation are located in California, including several in the Central Valley. Furthermore, even as the economy continues to boom, housing starts actually declined last summer. While there is little question that housing is a problem, it remains to be seen what steps — besides a housing bond — Davis and the Legislature are willing to take to improve the situation. The Legislature approved $22 million in appropriations for housing programs last year — up from virtually nothing under Gov. Pete Wilson — and housing advocates say they will aim for $100 million in the 2000-01 budget. "It wasn't a bad start after 15 years of drought," said Marc Brown, a housing lobbyist for California Rural Legal Assistance. Virtually all parties also hope to increase California's low-income housing tax credit program from $35 million to $50 million per year. As for the housing bond, both advocates and legislative leaders seem to be angling for a bond on the November ballot that would provide somewhere between $750 million and $900 million. Housing bond negotiations bogged down late last year, in part because Davis's office wanted to focus more on providing funding for single-family home ownership opportunities while legislative leaders, such as Alarcon, wanted to concentrate on rental housing instead. But with housing a higher priority, it appears likely that all sides will work harder to put aside their differences and get a bond on the ballot. "Our position is, we support what's going to pass with the voters," said Timothy Coyle, senior vice president for governmental affairs for the California Building Industry Association. "In today's market, you're going to have to provide some public assistance. In either case , you're not going to come close to meeting the need with the bond." And without committing the administration to a particular position, Borenstein indicated that even single-family assistance can aid renters. "If you help people who are renters to buy houses, then you can free up rental units," she said. The question of housing policy reform is much more up in the air. Both the administration and legislative leaders seem relatively uninterested in pursuing a wholesale reform of housing element policy – especially if it might harm the chances of getting a housing bond on the ballot. "That's fairly consistent with the governor's point of view," Borenstein said in an interview. "The housing bond is one of the most direct ways to get citizens involved in the discussion and also to get housing built." Reforms in housing policy, she suggested, are more "indirect" and take longer to have an impact. But administration officials, legislators, and lobbyists are all talking about the possibility of housing policy reforms that promote more housing construction near job centers, thus promoting "jobs-housing balance" or "Smart Growth" principles. Assemblyman Tom Torlakson, D-Martinez, and chairman the Assembly Select Committee on Jobs-Housing Balance, is expected to promote some kind of jobs-housing balance legislation. The issues might get worked into the transportation bond, which is being heavily promoted by Senate President Pro Tem John Burton. Meanwhile, CBIA is aggressively promoting infill housing close to job centers, at least rhetorically. In listing his organization's priorities for 2000, Coyle mentioned construction defect liability reform first, but then added a series of infill — or, as he called them "urban-centric" — policy reforms. These include reform of redevelopment housing law, more work on brownfields cleanup, and limitations on litigation against infill sites under the California Environmental Quality Act. He also said CBIA would strongly support the transportation bond and other infrastructure funding proposals. "What we're trying to do is get to the connection between job growth and housing supply," Coyle said. Meanwhile, Smart Growth advocates such as State Treasurer Phil Angelides continue to promote the idea of requiring state housing and infrastructure funding programs to incorporate "Smart Growth" principles in their criteria. Angelides has already introduced such criteria into the low-income housing tax credit allocation process. He is attempting to do the same for the state's infrastructure bank, though he is running into resistance. Angelides has promised to push for Smart Growth criteria in allocating the housing bond money — and he may have considerable leverage because he is actively raising funds for the housing bond campaign. Angelides and other Smart Growth advocates are also expected to place such criteria on the allocation of money from the transportation bond, though this is likely to meet with considerable resistance. It is difficult to say how much impact all this activity will have if the Davis Administration chooses not to pursue housing element reform. Wholesale changes in housing element policy are always on the legislative agenda, but the interest groups are deeply divided over how to proceed. Housing advocates want the state to play a stronger role in dictating local housing policies, while local governments usually want to weaken the state's leverage over their local planning processes. A great deal is likely to depend on Borenstein, Davis's new housing director. A former law professor, Borenstein represented the Coachella Valley in the Assembly for one term. She was defeated by Republican Jim Battin, who still holds the seat. More recently she worked for State Controller Kathleen Connell as deputy controller for external affairs. Housing advocates were united in their praise of Borenstein "She's got great political skills," said CRLA's Brown. In dealing with local governments, Borenstein may choose to focus on implementing existing housing element law and redevelopment housing law, rather than seeking to reform them in the Legislature. As a legislator, she was involved in the ongoing controversy between Indian Wells and neighboring communities over Indian Wells's desire to turn housing obligations — and redevelopment housing money — over to other, poorer cities. Most recently, the city of Coachella rejected $1 million in low-income housing money that Indian Wells offered. Contacts: Timothy Coyle, California Building Industry Association, (916) 443-7933. Julie Borenstein, Department of Housing and Community Development, (916) 445-4775. Marc Brown, California Rural Legal Assistance, (916) 446-9241. Office of Assemblyman Tom Torlakson, (925) 372-7990. Office of Senator Richard Alarcon, (916) 445-7980.

When California's first "space-saver" school opens next fall in Santa Ana, it will be an immediate orphan. The program that gave birth to the school no longer exists. Instead, the state and school officials are pursuing different strategies to provide classroom space in growing urban districts, as evidenced by innovative new schools in Pomona and Long Beach. The state space-saver program, launched with great fanfare during the early 1990s, sought to solve the problems of growing urban districts by offering to finance half of new school construction on high density parcels. But only two schools are ever expected to be built in the state under the program: the Mendez Fundamental Intermediate School in Santa Ana and one expected to open near Los Angeles's California Science Center in 2003. Still, urban school districts find themselves in a difficult predicament: growing enrollments dictate the need for more classrooms, but the large parcels needed to construct new schools have disappeared. The ongoing debacle over Belmont Learning Center in Los Angeles — a large downtown school on which the school district spent $170 million before halting construction because of soil contamination and seismic safety concerns — underscores how difficult it is for urban districts to find suitable land for such development. (See CP&DR Deals, April 1998, CP&DR Schools Watch, December 1996.) But a variety of creative efforts are springing up around the state to deal with the classroom shortage. And with bond money from last year's Proposition 1A still available for school construction, districts likely will continue to come up with new ideas for building. The typical suburban school campus is on 10 to 12 acres, most of which is used for playgrounds. Some districts, such as Anaheim Elementary in Orange County, are now considering building completely new schools on those playgrounds, said Duwayne Brooks, director of the school facilities planning division for the California Department of Education. The Los Angeles Unified School District is considering several joint use projects with existing schools. One plan is to build a 1,500-student high school campus on land that is part of East Los Angeles Community College. The high school students would share the college's existing athletic and cultural facilities. Los Angeles Unified is also building smaller schools for kindergarten through third graders because those schools can be built for fewer students and need less real estate. Other districts, such as Lodi Unified in the Central Valley, have built schools next to parks so that parkland becomes the school's play area. Schools reciprocate by opening gymnasiums at night for community use, Brooks said. The hottest concept right now is increasing the use of two-story portables, according to Jim Murdoch, director of the Coalition for Adequate School Housing in Sacramento. Los Angeles Unified and Capistrano Unified in South Orange County are two districts using the newest portables. One of the more unusual projects to find new space for schools is under way in Pomona, where a failing 40-acre shopping center is being converted into a mixed-use educational and commercial center. While definitely not a space saver, the Pomona Educational Center is reusing existing buildings. When it opens next fall, 1,800 kindergarten through sixth-grade students will attend classes in the Pomona Educational Center — next to a drug store, cinema and restaurant — in the Village at Indian Hills shopping center. The school will also contain a conference center, teacher training facilities and adult education facilities, according to Tom Blurock, the project architect. The school could be converted to a high school in the future. With sites limited in urban areas, "you have to be more opportunistic," he said. And distressed commercial areas offer possibilities for elementary schools. "That's kind of the flip side of the space-saver," he said. The school district is converting parking lots behind the buildings into playgrounds and athletic fields. Total development cost is about 80% of normal, according to Blurock. The Mendez space-spacer school, while built on a small parcel of land, is also located in a shopping center in Santa Ana called Bristol Market Place. Blurock said other clients, including the Hawthorne School District, are considering commercial sites for future schools, although in that city, the old mall that is being eyed may have to be torn down before construction can begin. Blurocks' Orange County firm also recently designed a school in downtown Long Beach, that did not get state space-saver money, but exemplifies how to fit a school into a tight space. The 950-student Long Beach International Elementary School sits on 2.5 acres. A concrete deck over classrooms serves as a playing field, and a small site across the street is being renovated into a quarter-acre park. The site was formerly the school district's headquarters and parking lot. The district moved its offices to a more suburban neighborhood in Long Beach to free up the land. The school did receive about half its $14 million funding from Roos funds, another state program (now ended) aimed at helping urban districts develop constrained school sites. When state Senator Leroy Greene of Sacramento first introduced the idea of space-savers in 1991, his idea was to help urban districts such as San Francisco find ways to build new schools without resorting to eminent domain. Greene, who had been a civil engineer, envisioned schools built on top of parking garages at Candlestick Park in San Francisco and Dodger Stadium in Los Angeles, or building a school on a bridge over the Los Angeles River. The cost of the facility could be no more than building a standard school. But districts foresaw a lot of paperwork, and stadium officials did not jump at the notion of converting their empty parking lots into schools. The Los Angeles space-saver project is expected to receive funding next year, according to Lyle Smoot, the state building program coordinator for the LAUSD, and a former employee at the state allocation board when the space-saver program was established. The school will be located at Exposition Park in a renovated building that is currently used by the California Science Center. The three-story building will continue to house some of the Science Center on the top floor when it is completed. The second space-saver school will probably be the last. The authority to make allocations for space-saver projects was deleted by SB 50, passed in 1998 as part of the legislation that led to Proposition 1A. Contacts: Duwayne Brooks, California Department of Education, (916) 445-2144 Tom Blurock, architect, (949) 646-9373 Lyle Smoot, Los Angeles Unified School District (916) 442-2591 Jim Murdoch, Coalition for Adequate School Housing, (916) 441-3300

Despite five years of negotiation with state housing officials, the Santa Cruz County Board of Supervisors has rejected a proposed housing element that would permit the county to reach its affordable housing goals largely through the unprecedented use of "granny flat" policies. At its core, the dispute between the notoriously slow-growth county and the state is a stark example of two competing philosophies about affordable housing. Within the context of longstanding growth restrictions, county supervisors seek to use regulations to require that a certain percentage of housing units be affordable. By contrast, the "supply-siders" at the state Department of Housing and Community Development favor increasing housing production by removing the growth restrictions, which they see as barriers to affordable-housing construction. The supervisors voted 3-2 in late October against a staff proposal to approve a new housing element — thus extending the longstanding stalemate between the county and HCD. In recommending approval, the county's staff report proudly stated that the county had "reached a tentative agreement with HCD" and would now be eligible for some $4 million in "much-needed housing and community development funds." But board Chairwoman Mardi Warmout claimed the staff negotiated with the state without sufficient direction from the board and, therefore, brought forward a deal that was unacceptable. In particular, Warmout ridiculed HCD's supply-side strategy, especially in a housing market adjacent to the booming Silicon Valley area. "Nobody who has visited the Central Coast of California in the last 20 years could with a straight face suggest that if you build more housing you're going to get housing affordability," she said. "We have an insatiable demand for housing." She criticized HCD staff members — many of whom are holdovers from the administration of Gov. Pete Wilson — as being too closely connected to the development industry and expressed hope that Democratic Gov. Gray Davis would appoint new top brass at HCD more sympathetic to the county's point of view. She also said that Democratic Assemblyman Fred Keeley, a former member of the Board of Supervisors, had agreed to help with the HCD negotiations. The board majority rejected the housing element over the objections of many housing advocates and elected officials from the southern part of Santa Cruz County, including Supervisor Tony Campos. These officials argued that the county's tough stance on growth is forcing the farming town of Watsonville to accept a disproportionate share of affordable housing in the county. Watsonville is said to be contemplating litigation against the county. The city is already locked in a long-standing dispute with county officials and environmentalists over the proposed annexation of sensitive coastal property near Watsonville. The key to the tentative agreement was HCD's willingness to accept Santa Cruz County's proposed reliance on so-called second units in existing single-family neighborhoods to meet affordable housing goals in unincorporated areas. The draft housing element called for half of the county's goal of 30,000 units to be "second" units — including some 9,000 units in areas designated as rural. HCD approved the second-unit strategy "in spite of the fact that we really don't think the strategy has any chance of being successful," said Cathy Creswell, HCD's policy chief. But this concession was not good enough for the majority of the Board of Supervisors, which objected to HCD's insistence that regulations designed to ensure the affordability of second units be removed. "The board members raised the question of whether these units are really going to be affordable" in the absence of such regulations, said Alvin James, the county's planning director. For its part, HCD questioned whether, in the face of such regulations, second units would actually be built. For example, the county's proposed regulations would have required homeowners seeking to build accessory units to select their tenants from a list provided by the county housing authority. As part of the negotiation over the housing element, HCD demanded that this requirement be removed. "Our position was, who's going to do that?" Creswell said. In fact, one homeowner has already sued the county over the second-unit regulations, claiming the rules are too onerous. Stanley and Sonya Sokolow of Santa Cruz claim that the county's second-unit rules constitute a taking of property and violate the state's second-unit and rent control laws. The Santa Cruz County Board of Supervisors approved a housing element in 1994, but HCD never certified it for compliance with the state housing element law. The 1994 housing element called for the construction of almost 31,000 units in unincorporated areas, including 12,000 on vacant land, 15,600 as second units, and the rest a combination of mixed-use projects and density-bonus units. Approximately 5,000 of those units would be for low- and moderate-income residents. Creswell said HCD at first resisted accepting the second-unit strategy, but "we decided to let them try it. … They don't have much land zoned for multi-family." However, the state agency first demanded changes in the second-unit regulations. In a 1997 letter to the county, HCD asked the county to, among other things, streamline the screening of prospective tenants (in addition to removing the county housing authority requirement) and eliminate a requirement for deed restrictions requiring that rents be kept at specified levels in perpetuity. HCD suggested cutting the deed restrictions to no more than 10 years. In the deal brought to the Board of Supervisors in October, the county staff lowered the overall housing target from 31,000 to 28,600 units. The proposal also shifted some housing production from the second-unit program into areas available for mixed-use development, creating a target of 2,200 mixed-use units. However, the overall production based on second units remained at approximately 13,000 units, or close to half of the county's overall housing obligation. In addition, the staff asked the board to agree to a series of changes to placate HCD, including: o Exempting main units from the county's housing permit allocation process when a second unit is proposed. o Permitting the use of mobile homes as second units. o Providing priority processing for residential projects that are mixed-use or have second units. Priority processing for larger projects is already available. o Providing incentives for mixed-use development and second units. The deal also included a proposed pilot program for second-unit development in unincorporated territory around Watsonville. Warmout minced no words in criticizing both HCD and her own staff. "This has been a real debacle," she said. She added that she believes the state should be able to set housing targets but that local governments should be given more flexibility in how to achieve them. "This is an issue here about people having control over their own planning destiny," she said. Contacts: Mardi Warmout, Santa Cruz County Board of Supervisors chairwoman, (831) 454-2200. Alvin James, Santa Cruz County planning director, (831) 454-2180. Cathy Creswell, deputy director for policy development, Department of Housing and Community Development, (916) 323-3183.

Alameda County City of Livermore Voters rejected the Citizens Alliance for Public Planning (CAPP) initiative that would have required an election for a development of more than 20 units. Measure B: No, 61.5% City of Pleasanton Voters defeated the CAPP initiative that would have mandated an election for a development with at least 10 units. Measure D: No, 56.4% City of Newark Voters defeated an initiative that would have changed the general plan designation of 560 acres of mostly vacant property in the southwest part of town from residential to open space and agriculture. Developers have proposed 1,100 high-end homes and a golf course on land currently zoned for 2,700 homes. Measure C: No, 61.3% Contra Costa County City of San Ramon In the closest CAPP election, voters defeated an initiative that would have required an election for a development of at least 10 units. Measure F: No, 52.5% Voters narrowly approved the City Council's alternative to CAPP. This measure places a two-year moratorium on zoning changes and mandates a general plan update. Measure G: Yes, 51.1% Fresno County City of Clovis Voters approved a three-tenths of a cent sales tax to fund police and fire stations. Measure A: Yes, 68.8% Los Angeles County City of Agoura Hills Voters backed an initiative that requires a two-thirds vote of the electorate before land currently zoned as open space may be developed. Measure B: Yes, 85.7% City of Arcadia An $8 million bond to build a new police station in this San Gabriel Valley city received wide support. Measure C: Yes, 78.3% Napa County City of American Canyon Voters in this seven-year-old city between Napa and Vallejo approved a measure that rezones a former cement plant in the city's sphere of influence to allow for construction of a "town center." Retail shops, parks, gardens, vineyards and a small lake are planned. Measure C: Yes, 83.1% Orange County Rancho Santa Margarita Voters in this southern Orange County community of 44,000 approved incorporation. Rancho Santa Margarita becomes the county's 33rd incorporated city on January 1. Incorporation, 83.4% San Bernardino County City of Apple Valley A measure that locks in existing residential densities for 20 years and requires voters to approve zoning changes and general plan amendments passed easily. Measure N: Yes, 83.7% A competing measure placed on the ballot by the City Council that would have permitted the council to make zoning changes failed by a similar margin. Measure O: No, 82.6% City of Chino Hills Voters approved an initiative that requires voters to decide on proposals to increase residential zoning densities, or to convert commercially zoned property to residential. Measure U: Yes, 75.7% City of Redlands An initiative that would have limited residential development to 400 units annually, encouraged citrus preservation and altered traffic patterns was rejected. Measure V: No, 54.6% An initiative that would have placed strict limits on San Timoteo Canyon development also lost. Measure W: No, 57.3% San Diego County City of Santee In a November 9 special election, voters rejected a 3,000-unit subdivision proposed for the Fanita Ranch, the last large piece of undeveloped land in this San Diego suburb. They voted against the general plan amendment (Measure A) and the specific plan (Measure B), both of which were subjected to referenda. Interestingly, voters also rejected a proposal (Measure C) that called for the city to buy the land as open space. Measure A: No, 64.9% Measure B: No, 64.9% Measure C: No, 86.3% San Francisco City and County Voters approved an advisory measure that calls for extending CalTrain lines to a proposed regional transit station downtown. The measure also calls for electrifying CalTrain lines between San Francisco and San Jose. Proposition H: Yes, 69.1% Voters said they like the idea of making Octavia Boulevard a thoroughfare instead of rebuilding the Central Freeway, a raised structure that was damaged by the 1989 Loma Prieta earthquake. The measure, placed on the ballot by supervisors, also calls for construction of housing and mixed-uses on former freeway right-of-way. Proposition I: Yes, 54.1% A competing initiative that would have authorized Caltrans to rebuild the Central Freeway failed. This was the second time in three elections that city voters have rejected freeway reconstruction. Proposition J: No, 52.5% San Mateo County City of Half Moon Bay Voters tightened an existing annual growth cap from 3% to 1%. The measure contains an exception for additional development in the downtown core. Measure D: Yes, 63% Santa Barbara County City of Santa Barbara An initiative to allow a 225-room hotel along the waterfront failed. Developer Fess Parker forced the measure on the ballot after the City Council limited his proposed hotel to 150 rooms. Measure S: No, 65.2% Santa Clara County City of Morgan Hill Voters extended the life of the city's redevelopment program, which will collect an estimated $147 million during the next 10 years. Planned projects include a library, senior and youth centers, athletic fields, flood control, street improvements, historic preservation and new housing. Measure D: Yes, 67.3% Solano County City of Fairfield A developer-backed "greenbelt" initiative that would have extended the city's urban growth boundary in areas eyed by builders received very little support. Measure I: No, 89.5% Ventura County City of Ventura Voters approved rezoning of 25 acres of farmland to permit construction of a church and recreational facilities. This was the first project to go to the ballot since city voters approved the Save Our Agricultural Resources initiative in 1995. Measure C: Yes, 54.6% School Bonds Approved (16): Alisal Elementary (Monterey County), $25 million. Berryessa (Santa Clara County), $48 million. Briggs (Ventura County) $2.5 million. Campbell High (Santa Clara County), $95 million. Capistrano (Orange County), $65 million. El Monte City Elementary (Los Angeles County), $40 million. Nicasio (Marin County), $2.5 million. Pacific Grove (Monterey County), $12 million. Perris High (Riverside County), $16 million. Round Valley Joint Elementary (Inyo County), $1.2 million. San Miguel Joint Elementary (Monterey County), $3.9 million. Santa Ana (Orange County), $145 million. Twin Hills (Sonoma County), $4 million. Washington (Yolo County), $17.5 million. Woodland Joint (Yolo County), $40 million. Yuba City (Sutter County), $36 million. Defeated (12): Antelope Valley High (Los Angeles County), $91 million. Barstow (San Bernardino County), $20 million. Cabrillo (San Mateo County), $125 million. Grant Joint High (Sacramento County), $67.5 million. Lindsay (Tulare County), $4.9 million. Peninsula (Humboldt County), $1.8 million. Southern Kern (Kern County), $13.3 million. Thermalito Elementary (Butte County), $2.3 million. Wasco Elementary (Kern County), $3.6 million. William S. Hart High (Los Angeles County), $17.5 million. Paso Robles (San Luis Obispo County), $65 million. Poway (San Diego County), $149 million. Approved October 19: Sacramento City (Sacramento County), $195 million. Approved November 16: Placer High, (Placer County), $41.5 million School Parcel Taxes Approved: Davis Joint (Yolo County), $57 to $114 annually. Lafayette Elementary (Contra Costa County), $132 annually. Moraga Elementary (Contra Costa County), $129 annually. Defeated: Irvine (Orange County), $95 annually.

An environmental group that sued a company over alleged violations of the Clean Air Act has been denied attorneys' fees by the Ninth Circuit U.S. Court of Appeals. The unanimous three-judge panel — which included retired U.S. Supreme Court Justice Byron White, sitting by assignment — said that in cases where the government eventually does take action, such as this one, a private party is not entitled to receive its court costs. In November 1995, The Montana Coalition for Health, Environmental and Economic Rights (CHEER) filed a notice of its intent to sue Stone Container Corporation. CHEER alleged Stone violated the Clean Air Act, Clean Water Act and Emergency Planning and Community Right to Know Act. Sixty days later, the Environmental Protection Agency filed a suit against Stone alleging three violations of the Clean Air Act. The EPA's suit was followed one week later by CHEER's suit against Stone alleging 21 violations of the Clean Air Act, including the three violations listed in the EPA's suit. Over the next two years, Stone, CHEER and the federal government negotiated separate consent decrees. The CHEER-Stone consent decree settled all of the environmental organization's claims, and the group agreed to drop its three duplicative claims. Furthermore, Stone agreed to pay CHEER $129,000 in attorneys' fees. After this consent decree was finalized, CHEER filed an unopposed motion to intervene in the EPA lawsuit. This suit also ended in a consent decree. However, Stone opposed CHEER's request for attorneys' fees, and a federal district court sided with Stone. The court ruled that §304(b)(1)(B) of the Clean Air Act precluded CHEER's duplicative claims because the federal government was already prosecuting Stone on the same grounds. On appeal, CHEER cited United States (EPA) v. Environmental Waste Control, Inc., 710 F.Supp. 1172 (N.D. Ind. 1989), known as EWC I. In that instance, both the federal government and a citizen group sued EWC for violating the Resource Conservation and Recovery Act. The citizen group, much like CHEER, presented more claims and sought more relief than did the EPA. The court in EWC I awarded attorneys' fees to the environmentalists because, "Congress intended for citizen groups intervening as a matter of right to be able to recover their costs and attorney fees." But EWC I "is neither persuasive nor controlling," Circuit Judge M. Margaret McKeown wrote. "To the extent the court ignored the language of the statute and veered off into an analysis of congressional intent, we disagree. The plain language of the CAA , including the absence of a fee provision for intervenors, controls our decision and trumps the congressional intent analysis in EWC I." CHEER, noted McKeown, had already received attorneys' fees for prosecuting its nonduplicative claims. McKeown continued, "As the Supreme Court has emphasized, Congress's intent was to encourage citizen suits only ‘if the Federal, State and local agencies fail to exercise their enforcement responsibility,' Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Fund, Inc., 484 U.S. 49, 60 (1987). Where the government does take action, as the EPA did in this case, the need to provide incentives for private party participation diminishes." "Although we realize that awarding attorneys' fees to intervenor-plaintiffs could operate as an additional incentive designed to further citizen participation, this is a decision left to Congress, not the courts," McKeown concluded. The Case: United States of America v. Stone Container Corporation v. Montana Coalition for Health, Environmental and Economic Rights, Inc., No. 98-36175, 99 C.D.O.S. 9145, filed November 19, 1999. The Lawyers: For CHEER: Charles Tebbutt, Western Environmental Law Center, (541) 485-2471. For Stone: Russell Frye, Chadbourne & Parke, (202) 974-5600.

Less than a week after voters decided nearly 20 growth-related ballot measures, an attorney for a developer who lost an election last January made its case to the Second District Court of Appeal. The lawyer for Costa Mesa-based Messenger Development argued that a referendum over a 3,200-home development in the City of Moorpark was illegal. During a January special election, Moorpark voters overturned their City Council's approval of Hidden Creek Ranch, a subdivision proposed inside Moorpark's sphere of influence. Voters also approved an initiative that requires an election before development may occur on land zoned for agriculture or open space. The latter was part of the Save Open-space and Agricultural Resources (SOAR) campaign that has swept across Ventura County. The special election appeared to deal two fatal blows to Messenger, which had worked nearly a decade on the Hidden Creek Ranch project. But Messenger went to court, challenging both the referendum that overturned approval of the project and the Moorpark version of SOAR. The builder lost the challenge of the referendum at the trial court level, but the case was argued before the Second District Court of Appeal on November 8. (The lawsuit over the SOAR initiative is on hold pending outcome of the referendum lawsuit.) One of Messenger's primary arguments is that voters did not receive complete information. The referendum was over the development agreement between the city and Messenger, but other legislation, including a general plan amendment, was contingent upon the development agreement, Messenger argued. Voters could not decide on the development agreement without seeing the entire package, according to the developer. Messenger further contended that the form of the petition that qualified the referendum for the ballot was improper because the petition shrunk an 83-page development agreement down to 19 pages of microscopic type that was nearly illegible. Besides the technical quarrels, the developer also argued that the referendum severely hampered Moorpark's ability to provide necessary affordable housing, and that the vote left Messenger with zoning that conflicts with the general plan. Attorneys for SOAR, who are defending the city, argued that the voters have spoken on two perfectly legal ballot measures. They contend that Messenger was only complaining about having to play by new rules that directly insert the electorate into land-use decisions. A decision in the case is due by early February. The Case: Hidden Creek Ranch v. City of Moorpark, No. B127901. The Lawyers: For Hidden Creek Ranch, Wendy Lascher, Lascher & Lascher, (805) 648-3228. For Moorpark: Richard Francis, (805) 486-5898.