Efforts to build a new ballpark for the San Diego Padres hit a snag when historic preservation advocates won a round in San Diego County Superior Court, potentially jeopardizing the project's targeted completion date of February 2002. Superior Court Judge Judith McConnell ordered the City of San Diego and its downtown redevelopment agency to halt eminent domain proceedings, land assembly and the awarding of a $50 million contract for infrastructure improvements until an environmental impact report is complete. A draft EIR is has circulated but City Council adoption of the study is not due until mid-September. The decision stalls a "critical path" item by three to four months, said Deputy City Manager Bruce Herring. Officials are still trying to determine if that time can be made up before February of 2002, he said. An organization called Citizens Advocating Redevelopment Excellence filed a lawsuit because it wants the city and the Padres to move the stadium location by two blocks to avoid an historic warehouse district. In June, the National Trust for Historic Preservation listed the arts and warehouse district as one of the 11 most endangered historical places in the country. City officials argued that the eminent domain, land assembly and public works projects were allowed under a 1992 downtown redevelopment plan. However, the plan does not contemplate a baseball stadium, said Susan Brandt-Hawley, the attorney for CARE. A paper trail made clear the city's actions were in preparation for a ballpark, she said. In her ruling issued in late June, Judge McConnell wrote, "The current activities being pursued by (the city) appear to be inconsistent with the Centre City Redevelopment Plan, and the master environmental impact report. The draft subsequent environmental impact report admits that the development site was intended to comprise primarily residential uses, and the proposed ballpark project is ‘currently not an allowed use within the area.'" Added Brandt-Hawley, "You wonder why they didn't do the EIR a year ago." Last fall, San Diego voters approved the 42,000-seat stadium for the rundown East Village, near the revamped Gaslamp Quarter and the expanding convention center. Funding for the $411 million ballpark is to come from city-issued bonds ($225 million) the redevelopment agency ($50 million) the port district ($21 million) and the Padres ($115 million). The ballpark is supposed to anchor a 26-block redevelopment area, with hotels, restaurants and shops completing the project. Brandt-Hawley said her clients are not trying to halt the ballpark, only to move it a few blocks toward vacant San Diego Gas & Electric property. The East Village is getting a second life as people create live/work units in the brick warehouses built early this century — just as envisioned by the 1992 redevelopment plan. However, Herring, the deputy city manger, said shifting the ballpark site would "change the project dramatically" because it would requiring altering plans for ancillary hotels and other developments around the stadium. Padres majority owner John Moores told the San Diego Union-Tribune that he would not consent to shifting the ballpark's location. He also said McConnell's ruling proves "it's impossibly difficult to get anything done in California." Complicating the stadium controversy further, the 1998-99 San Diego County grand jury charged two-term Mayor Susan Golding with civic misconduct. The grand jury alleged Golding offered to back a $4 million city appropriation to the San Diego County Hotel-Motel Association for tourism promotion in exchange for the association supporting last year's ballpark ballot measure. However, on July 20, District Attorney Paul Pfingst declared Golding had done nothing illegal and he sought dismissal of the charge. Golding denied any wrongdoing. Contacts: Susan Brandt-Hawley, attorney for Citizens Advocating Redevelopment Excellence, (707) 938-3908. Bruce Herring, San Diego deputy city manager, (619) 236-6363.

A proposed lot line adjustment constitutes a development under the Coastal Act of 1976, even though the proposal would not result in more parcels, the Second District Court of Appeals has ruled. The decision means the Coastal Commission has jurisdiction over the proposed lot line adjustment. The unanimous three-judge appellate panel upheld the decision of Los Angeles County Superior Court Judge David Yaffe, who compared a lot line adjustment to a lot split. "In either case, the reconfiguration of the land can facilitate a development in ways that impact upon the interest of the Coastal Commission," wrote Yaffe, who was quoted in the appellate court opinion. The case centers on 16 parcels on 92 acres in the rugged, fire-prone Topanga Canyon. La Fe, Inc. and six individuals — including Robert S. Rein, who served as the proponents' attorney — sought the county's permission to adjust lot lines for the 16 parcels. The county approved the proposal in concept but said the landowners needed a coastal development permit from the Coastal Commission. Prior to the Coastal Commission making a decision, the Los Angeles County Regional Planning Commission rejected a proposal to subdivide one of the 16 parcels into three lots because the lone fire access route — provided by Hillside Drive — was inadequate. The Coastal Commission focused on the same when it denied the proposed lot line adjustment in April of 1997. According to Fire Marshal Jesus Burciaga, the lot line adjustments would move building sites away from street frontage "‘further into an extremely dangerous area without any form of mitigation.'" The commission found the proposal would increase the number of lots in a mesa from five to 15, thus increasing by 10 the number of parcels taking access from Hillside Drive. The commission, therefore, could not make the necessary finding that the proposal would not minimize risks to life and property in a high fire hazard area. Improving Hillside Drive or creating a secondary access would require "excessive landform alteration" contrary to the Coastal Act. The commission also determined the proposal would increase building density in the mesa. The proponents then sued, seeking preemptory writs of mandate ordering the county to record a certificate of compliance for the lot line adjustment and ordering the Coastal Commission to grant a permit waiver. Judge Yaffe refused to issue the former writ of mandate because, he ruled, the Coastal Commission has jurisdiction, not the county. He then ruled that the Coastal Commission could consider the lot line adjustment as a "development." On appeal, the proponents argued only that the lot line adjustment that created no additional lots was not a development within the meaning of the Coastal Act, and, therefore, the Coastal Commission had no jurisdiction. The Second District Court of Appeal, Division Five, rejected that argument. Citing extensively from California Coastal Commission v. Quanta Investment Corp., (1980) 113 Cal.App.3d 579, Presiding Justice Paul Turner wrote that the Coastal Act "by its terms recognizes that a subdivision of land or a lot split can result in changes in the density or intensity of use of property. A lot line adjustment can, as here, have the same effect. More to the point, though, § 30106 explicitly applies to a ‘subdivision … and any other division of land.' A lot line change constitutes a ‘division of land.'" In Quanta, Turner noted, the court ruled that conversion of existing apartment units into a stock cooperative form of ownership qualified as a division of land and, thus, was a development. In Stanson v. San Diego Coast Regional Commission, (1980) 101 Cal.App.3d 38, the court ruled that remodeling a supermarket into 16 small retail shops and a restaurant constituted a development within meaning of the Coastal Act. In an unpublished portion of the opinion, the court rejected the proponents' argument that the Subdivision Map Act exempted lot line adjustments from the discretionary approval process. "The legislative concerns addressed by the Subdivision Map Act and those underlying the (Coastal) Act are not the same," Judge Turner wrote in the unpublished part of the opinion. The Case: La Fe, Inc., v. Los Angeles County, No. B119186, 99 C.D.O.S. 5299, 1999 Daily Journal D.A.R. 6715, Filed June 30, 1999. The Lawyers: For La Fe: Robert S. Rein, Saphier, Rein & Walden, (310) 556-0100. For the Coastal Commission: Jamee Jordan Patterson, deputy attorney general, (619) 645-2001. For Los Angeles County: Thomas Faughnan, deputy county counsel, (213) 974-1811.

The next big thing in water quality management — measuring specific pollutants in bodies of water and setting limits for those pollutants — is likely to impact land use and planning, but the exact ramifications remain unclear. After years of delay, federal and state agencies are developing definitions to show how much pollution can be allowed in a water body before it becomes polluted. These definitions are known as total maximum daily loads, or TMDLs. Section 303(d) of the federal Clean Water Act mandates the TMDL process, which requires states to identify all water bodies that do not meet water quality standards, and then create TMDLs for them. Although Congress approved the Clean Water Act in 1977, states ignored TMDLs for years while cleaning up obvious sources of pollution, such as sewage treatment plants. But following a series of lawsuits and the progress made cleaning up some pollution, the focus has now shifted to cleaning up pollution from other sources, such as agriculture, forestry operations and stormwater runoff. TMDLs will play a big part in this latest effort. California currently has more than 500 water bodies that fail to meet federal water quality standards. And according to a recent state report on TMDLs by the California State Library's Research Bureau, TMDLs have "a long reach into the realm of land management practices." " he TMDL program is to become a basis for not just NPDES (National Pollutant Discharge Elimination System) permit effluent limits and conditions, but also many other water pollution control efforts that fall outside the traditional realm of water quality regulation," said the report, which pointed to watershed protection efforts. According to the Research Bureau report, "TMDL requirements may prove to be the most important change in environmental law in California since the Endangered Species Act, and the most significant change in water quality control since the Clean Water Act itself." The state government has taken notice. According to a recent California legislative analysis, "TMDL requirements have the potential to greatly expand the scope, impact, and economic cost of water quality regulations, and could change the way that the agriculture, forestry and construction industries do business." Still, it may be many years before the full impact of TMDLs are felt. "It's really at the embryonic stages," said Mark Gold, executive director of Heal the Bay, an environmental group focused on Santa Monica Bay. "It's too early to say," what the impact will be, said Doug Brewer, a water quality specialist with Jones & Stokes, an environmental consulting firm in Sacramento. Efforts to create TMDL standards are under way, driven by litigation from environmental groups as well as direction from the federal EPA. Development of the actual TMDL standards could take several years as scientific data is examined. In a recent lawsuit settlement involving TMDLs for 156 waterways in Los Angeles and Ventura Counties, the EPA was given 13 years to develop 92 TMDLs, although the first TMDLs are due next year, Gold said. Still, TMDLs are an important tool for environmental organizations like Heal the Bay. Gold called TMDLs "a tool to ensure that watershed protection is a high priority in planning decisions." For example, the TMDL program could restrict or prevent the discharging of additional treated wastewater into a river with high pollution levels — thus halting a proposed development. TMDLs, Brewer said, will "hopefully shed some light or understanding on the assimilative capacity of a river to accept waste material." Brewer is currently working on a TMDL project for the San Joaquin River, which catches wastewater from farms and cities in the San Joaquin Valley. TMDLs will focus more attention on agricultural activities, Brewer said, because they will show measurements of pesticides and herbicides in water supplies. If wastewater can't be sent into a river, cities will have to curtail development, or more likely, to reuse and recycle their wastewater. That could bring added costs to development or resistance from citizens who are uncomfortable about reusing wastewater. According to the state report, regulators of many of the state's coastal waterways are either being required to develop TMDLs, or are likely to get hit with lawsuits demanding they set TMDLs. These waterways include 18 north coast watersheds, Newport Bay, portions of Santa Monica Bay, San Francisco Bay and the Sacramento/San Joaquin Delta. California lagged in doing much about TMDLs until this year, when Gov. Gray Davis' budget included $9.9 million for them. Of that figure, $6 million was provided by the federal government. The money will be used by the state's nine regional water quality control boards to develop TMDLs. It is the first time money has been specifically allocated for such work. But based on the number of waterways that need to be studied, "that's a drop in the bucket," said Brewer. The state Legislature also is beginning to deal with TMDLs. AB 982, introduced by Assemblywoman Denise Ducheny, D-National City, was approved by the Assembly and passed the Senate Committee on Environmental Quality before the summer recess. The measure would set up an advisory group to help the State Water Resources Control Board as it develops a more comprehensive TMDL program, and ensure the Legislature is kept up to date on the board's activities. An analysis of AB 982 said that "the regulatory cost of this program ranges from $5 million to $1 billion, excluding the cost to industries and urban areas of pollution controls needed to meet more stringent standards." EPA regulations do not specify the process by which states should develop TMDLs. Furthermore, the state has not adopted guidelines for TMDL development, according to the Research Bureau. The Research Bureau report stated, "The costs of additional pollution controls to meet the load allocations and wasteload allocations could be very high." The report noted that municipal and industrial dischargers are worried that they will get stuck with the costs of cleaning up waters to meet TMDLs. The Sacramento Regional County Sanitation District filed suit against the State Water Resources Control Board in June 1998 over TMDLs, alleging that the state did not consider the economic costs when it adopted its Section 303(d) list of polluted waterways. The California Association of Sanitation Agencies has intervened in the Sacramento district's suit, while the Natural Resources Defense Council, and Santa Monica and San Francisco Baykeepers have joined the state's defense. Contacts: Fran Vitulli, spokesperson, State Water Resources Control Board, (916) 657-0941 Mark Gold, Heal the Bay, (310) 581-4188 Doug Brewer, Jones & Stokes, (916) 737-3000 The report: TMDLs: The Revolution in Water Quality Regulation, www.library.ca.gov/html/statseg2c.cfm

The City of Anaheim's attempts to bar a proposed adult cabaret from an industrial area were unconstitutional and the city must approve the business's permits, the Fourth District Court of Appeals has ruled. According to the unanimous appellate court decision, three city actions failed constitutional muster: an attempt to prevent "secondary effects" of an adult business, a retroactive amendment to the zoning ordinance, and denial of the strip club to protect the city's image. Presiding Justice David Sills ridiculed the amended ordinance that prevented adult businesses within 100 feet of a freeway to protect the image of the city that is home to Disneyland and the Anaheim Angels. " city's image is more a matter for the poets and journalists than the courts," Sills wrote. Badi Abraham Gammoh had proposed opening the Funtease theater on a site visible from the Riverside Freeway. "Signs and outward appearances can, of course, be regulated," Sills wrote. "But ‘visual blight' can easily be prevented by lesser intrusive means than the complete preclusion of an adult business from any major roadway. … No issue of compliance with a city sign ordinance is before us, and the record indicates that Gammoh is not proposing to construct a huge billboard with pictures of scantily-clad woman in tacky pink flashing neon, ‘Come to Gammoh's Flesh Emporium.'" Anaheim has spent much of this decade in court over its attempts to preclude adult businesses. In 1993, a federal district court struck down a provision in the city's zoning ordinance because it gave the Planning Commission so much discretion in granting use permits for adult entertainment businesses that the measure functioned as an illegal prior restraint on free speech. After the decision in that case, Dease v. City of Anaheim (C.D. Cal 1993) 826 F.Supp. 336, the city eliminated the discretionary features from its ordinance and required the Planning Commission to approve an adult cabaret that met the criteria. The new ordinance required adult businesses to be more than 400 feet from any residentially zoned area. In August of 1994, Gammoh submitted an application for business featuring "exotic strip tease dancers" in an industrial section of Anaheim next to the Riverside Freeway. The city responded within days by implementing a 45-day moratorium on adult business permits in an industrial zone. During the moratorium, Gammoh filed a lawsuit for a write of mandate and for damages to his civil rights. On October 10, 1994, the city denied Gammoh's application because his site was within 400 feet of a slender and vacant residentially zoned lot, and because it had inadequate parking. Two weeks later, to satisfy the parking concerns, Gammoh proposed scaling down the operation in what the city treated as a new application. In December of 1994, the city rejected the new application because the site was 150 feet from a residentially zoned property, and because it conflicted with a brand new ordinance that made the area off-limits to sex-oriented businesses and prevented adult entertainment within 100 feet of a freeway. The following month, Orange County Superior Court Judge Donald Smallwood denied Gammoh's request for an injunction. When the matter came up for trial a year later, Orange County Superior Court Judge Tully Seymour ruled that Smallwood had decided the issues and there was nothing left to litigate. Gammoh then appealed for permission to open the Funtease theater in what he described as a "God-forsaken industrial wasteland." The city argued that it was trying to protect surrounding residential areas from an adult business's secondary effects, a concept the U.S. Supreme Court upheld in City of Renton v. Playtime Theaters, Inc., (1986) 475 U.S. 41. But the appellate court said the city's ordinance — as applied — was unconstitutional. The only nearby residential property was "a single wedge-shaped vacant lot next to a freeway on which no one in his or her right mind would ever construct a residence," Sills wrote. Furthermore, since Gammoh filed his initial application, the city had rezoned the parcel for industrial use. "The salient fact in the present case, of course, is that no ‘secondary effects' on real human beings living in a real residential area were ever realistically possible when Gammoh first applied for his permit, and any doubt was later removed when the property was rezoned," Sills wrote. After Gammoh filed his first application, the city announced plans to revitalize the area with "upscale" industry, thus precluding a strip club. The appellate panel did not address whether a city could legitimately bar an adult business in a redevelopment zone, although Sills pointed out in a footnote that "cities cannot, consistent with the First Amendment, use redevelopment zones as a creative way to censor speech about sex." Instead, the court struck at the city's after-the-fact preclusion. "Essentially, it rezoned Gammoh's property to preclude any kind of adult businesses on the ground that they would hinder ‘redevelopment.' If a city can do that, then a city has the de facto discretionary power to deny an otherwise nondiscretionary permit by the simple expedient of saying that an adult business would be inconsistent with some hoped-for ‘upscale' development," Sills wrote. The court called Anaheim's freeway exclusion "unconstitutional on its face." A city may crack down on visual blight, but the mere existence of an adult business does not constitute blight. City officials have since petitioned the court to reverse the ruling, and they vowed to seek a state Supreme Court hearing if the appellate court refused to reconsider. The Case: Badi Abraham Gammoh v. City of Anaheim, No. G020502, 99 C.D.O.S. 5247, filed June 29, 1999. The Lawyers: For Gammoh: Roger Jon Diamond, (310) 399-3259. For Anaheim: Jeffrey A. Goldfarb, Rutan & Tucker, (714) 641-5100.

A city has an obligation to complete an environmental impact report and may not just continually reject an EIR prepared by a developer's consultant, the Fourth District Court of Appeals has ruled. The court also ruled that foot-dragging on an EIR by the City of Redlands gives the developer of a proposed housing complex a right to seek damages under the federal Civil Rights Act, 42 U.S.C. § 1983. The City of Redlands three times rejected a proposed draft EIR prepared by consultants of a housing developer. After the third rejection, the developer, Sunset Drive Corporation, sued. In overturning the decision of San Bernardino Municipal Court Judge W. Robert Fawke, sitting by assignment to the Superior Court, the appellate court said the city was shirking its duty. " imply rejecting a draft EIR proposed by an applicant does not satisfy a lead agency's duty under CEQA. When a project requires an EIR, it is ultimately the responsibility of the lead agency to prepare it," Justice Art McKinster wrote for the unanimous three-judge panel. In what Sunset attorney Gary Garfinkle called the most important part of the ruling, the court decided it can force a city to complete the California Environmental Quality Act process. The EIR's contents remain discretionary. Garfinkle compared the case to Del Monte Dunes v. City of Monterey, 99 C.D.O.S. 3846 (see CP&DR Legal Digest June and July, 1999). In Del Monte, the U.S. Supreme Court upheld a developer's right to a jury trial in a regulatory takings case brought under federal civil rights law, and a $1.45 million award for damages. Monterey had rejected five different housing development applications, each calling for less development than the previous proposal. In both cases, Garfinkle said, the city treated the developer arbitrarily. "The city (Redlands) has gone beyond the line. It's one thing to make a good faith argument against the proposal. It's another thing to jack the party around, which is what the city is doing," he said. Citing Morris v. County of Marin, (1977) 18 Cal.3d 901, Justice McKinster said monetary damages may be available to enforce a procedural requirement, such as the one-year deadline for certifying an EIR in Public Resources Code § 21151.5. Redlands City Attorney Daniel McHugh, however, disputed that any fundamental right had been violated or that the city failed to carry out its duty. He wants the opinion depublished and would like to argue the case before the state Supreme Court if a motion for reconsideration at the appellate level is not granted. The controversy has a long history, as the developer has fought the city over proposals for the property in question since 1988. (A previous case stemming from the controversy, Selinger v. City Council, 216 Cal.App.3d 259, centered on the Permit Streamlining Act.) In November of 1992, Redlands accepted Sunset's application for a housing development. City officials said the project required an EIR, and they identified issues for study in June of 1993. Sunset submitted a proposed draft EIR prepared by its consultants in January 1994. The practice of allowing a developer's consultants to prepare a proposed draft EIR, so long as the local agency independently reviews the document and adopts the study as its own, was upheld in Friends of La Vina v. County of Los Angeles, (1991) 232 Cal.App.3d 1446. After turning in the document, Sunset funded a review of the document by city-hired consultants, who were critical of the EIR. In response, Sunset's consultants revised the proposed draft EIR and submitted a new version in March of 1995. The city's experts again disagreed with the document, so the developer's consultants submitted a third proposal in August of 1995, which the city again declined to certify. In May of 1996, Sunset sought a writ of mandate ordering the city to complete and certify an EIR, and Sunset insisted on payment for damages. Judge Fawke sustained two rounds of demurrers from the city and eventually dismissed the lawsuit. But the appellate court overruled the demurrers, which essentially said that Sunset had no case. The lawsuit now heads back to Superior Court for trial unless the Fourth District, Division Two, ruling is overturned on rehearing or by the Supreme Court. On appeal, the city argued that the court could not order Redlands to take corrective action because the duty to prepare an EIR is discretionary, not ministerial. The city also argued that the one-year limit for certifying an EIR contained in Public Resources Code § 21151.5 is not mandatory, and that the one-year time limit was unenforceable because of delays by Sunset. The city further contended the issue was not ripe because the city had not certified an EIR or made a decision on the land use entitlement. The Fourth District rejected all four contentions. The city is responsible for completing the EIR, the court said. "Sunset is not asking Redlands to approve the draft EIR in its current form, but only to complete a draft EIR in some form," Justice McKinster wrote. "Sunset's focus is on the timing of the completion, not on the contents of the completed document or the nature of the ultimate decision that document is intended to inform." The city could prepare an EIR with its own staff, contract with another entity, or execute a third party contract with the applicant, the court noted. The one-year time limit is directory, rather than mandatory, but may still be enforced by the courts, the panel ruled. State law requires local agencies to establish time limits for completing and certifying EIRs, and Redlands has adopted the maximum of one year from the date an application is made. As for delays, it took the city seven months to identify issues for the EIR, and nine months passed between submission of the third draft EIR and Sunset's filing of the lawsuit, during which the city did not take action, according to the court. Obviously dissatisfied with the ruling, City Attorney McHugh said he will seek amicus support from other cities and counties because the ruling appears to permit lawsuits during the CEQA process. "Does this now allow any concerned party or developer or gadfly, as some people call them, to go in and commence a CEQA lawsuit before there is a decision on the underlying project?" McHugh asked rhetorically. He also questioned how the city is supposed to determine when to take over an EIR that it has allowed the applicant to prepare and still meet the one-year deadline. "The court never addressed the practical implication of this," he said. Sunset is responsible for the lengthy CEQA process in this case, he argued. Fourteen months passed between the application filing and submission of the first proposed draft EIR, and it took another year for the second proposed draft to be completed, he said. Thus, Sunset has effectively waived the one-year time limit, McHugh argued. But Garfinkle, the Sunset attorney, disagreed that the developer had waived the one-year time limit. "The city keeps saying the draft EIR is not good enough. But it's the city's responsibility to prepare the EIR." he said. The Case: Sunset Drive Corporation v. City of Redlands, No. E022234, 99 C.D.O.S. 5304, filed June 30, 1999. The Lawyers: For Sunset: Gary Garfinkle, (925) 932-3737. For Redlands: Daniel McHugh, (909) 798-7595.

The Ninth U.S. Circuit Court of Appeals has ruled the City of San Diego’s method for suspending and revoking nude dancing licenses is unconstitutional because it allows an adult business to be closed down while the business appeals the city’s action. The Ninth Circuit said adult businesses have the right to prompt judicial review of suspensions and revocations. The court also ruled businesses that engage in protected speech, such as nude dancing clubs, must be allowed to stay open until a judge rules on the suspension or revocation. The court expanded on its 1998 ruling in Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097, in which the court held that a business had a right to prompt judicial review when a city denied a permit application. "We conclude that we must extend Baby Tam’s requirement of an opportunity for a prompt hearing and decision by a judicial officer in license denial cases to license suspensions or revocations as well," Chief Judge Procter Hug Jr. wrote for the unanimous three-judge panel. San Diego’s ordinance and California statutes do not contain "express time limits or guarantee of a prompt hearing or decision, and are therefore similar to the Nevada statute found to be inadequate in Baby Tam," Hug wrote. Moreover, under California law, the granting of a stay of the revocation or suspension pending a judicial decision is discretionary, not mandatory. Thus, San Diego’s scheme lacks sufficient judicial safeguards and could result in an unconstitutional suppression of free speech, the court ruled. Courts have consistently ruled that strip clubs, although they are often unpopular land uses, must be allowed to locate somewhere within a city. The San Diego case is another in which the courts scrutinized a method for a city to shutter a business with live adult entertainment. The case came about when San Diego cited 4805 Convoy, Inc., for violating two rules of its 1987 nude entertainment license. An inspector found that during an amateur night, unlicensed women danced topless within six feet of patrons. Under San Diego municipal code, nude dancers must be licensed by the city and they must remain at least six feet from patrons. On October 3, 1995, the city suspended Convoy’s license for 14 days. Convoy then proceeded through the city’s administrative appeal process — during which the 14-day suspension was held in abeyance — and it filed a lawsuit in federal district court. After the city reduced the license suspension to seven days, Convoy sued in San Diego County Superior Court. On April 7, 1997, the trial court ruled for the city, although the judge stayed the license suspension pending the outcome of the federal court lawsuit. In federal court, Convoy argued that San Diego’s provisions for the issuance, suspension and revocation of nude entertainment permit licenses were unconstitutional. Convoy argued that San Diego failed to provide adequate procedural safeguards to prevent suppression of protected speech. Southern District of California Judge Napoleon Jones disagreed and granted the city summary judgement on October 22, 1996. In reversing Judge Jones, the Ninth Circuit considered challenges to San Diego’s revocation and suspension procedures, but not its licensing provisions because Convoy was not subject to getting a new license. Hug cited the U.S. Supreme Court’s decision in FW/PBS v. City of Dallas, 493, U.S. 215 (1990). The ruling, on which the Ninth Circuit based its Baby Tam decision, mandated at least two procedure safeguards. "First ‘the licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained.’ … Second, ‘there must be the possibility of prompt judicial review in the event that the license in erroneously denied.’" Cities may get around the prompt review mandate so long as the status quo is maintained indefinitely because then there is no risk of suppressing protected speech, Hug reasoned. However, the San Diego municipal code and state law do not guarantee the status quo will be maintained. The Ninth Circuit enjoined San Diego from enforcing license suspension or revocations during the 90-day period for filing suit, or from enforcing a suspension or revocation until a lawsuit has been decided. "This injunction will remain in place so long as the city’s ordinance and the California statutory scheme fail to provide for a prompt hearing and decision by a judicial officer, or for the maintenance of the status quo pending a judicial decision on the merit," Hug wrote. The Case: 4805 Convoy, Inc., v. City of San Diego, No. 97-55295, 99 C.D.O.S. 5594, 1999 Daily Journal D.A.R. 7159, filed July 14, 1999. The Lawyers: For Convoy: A. Dale Manicom, (619) 232-3255. For San Diego: Grant Richard Telfer, deputy city attorney, (619) 533-5800.

The complex financial relationships among taxpayers, local governments and the state is receiving more study than at any time since the 1978 passage of Proposition 13. But "fixing" local government finance is turning out to be exceedingly complex and may require the approval of voters. Lawmakers threw a couple hundred million dollars worth of bones to local government with the $81 billion 1999-2000 state budget. But many people have their eyes focused on a state constitutional amendment that could appear on a 2000 ballot. The measure might cap a 1993 property tax shift, make structural changes to local government finance, and possibly even alter the existing method of allocating sales tax revenue. However, no one knows for sure because drafting the constitutional amendment had not begun as of late June, said Debbie Beltram, an aide to Senate Budget Committee Chairman Steve Peace (D-El Cajon), who has taken the leading role. Peace, who conducted local government finance hearings around the state earlier this year, and others were awaiting Gov. Gray Davis's action on the local government portion of the state budget. "We have to wait and see what the local government pieces look like. Then it will be a leadership discussion on who's going to carry it and what's going to be included," Beltram said of the constitutional amendment. Peace has assured Davis that he will not move forward with a constitutional amendment that Davis opposes, she added. While city and county officials continue to howl about getting shortchanged, the state budget adopted by lawmakers did slow the protest. The budget earmarks $220 million for cities, counties and special districts, but it makes no structural reforms. Most importantly, the Educational Revenue Augmentation Fund (ERAF) — which shifted property taxes from counties and cities to schools — remains unchanged. "It's certainly not everything we dreamed it would be, but it's a first step," David Jones, a lobbyist for the League of California Cities, said of the budget. "Our real hope in this budget is the promise of real reforms and real protections of our revenues in the future. … Having us live under the threat of a future property tax shift does not make sense. We're desperately seeking protection from future lawmakers." The California State Association of Counties also tried to put a happy face on the budget. For the first time, the budget contains local relief partially based on ERAF losses, CSAC noted. "CSAC is encouraged by the Legislature's action to move local government finance to the forefront," Executive Director Steven Szalay wrote after the budget passed. The budget approved by lawmakers provides one-time subventions to local government in the following forms: $75 million to cities and counties based on population; $75 million to cities, counties and special districts in proportion to ERAF losses; $50 million for jail booking fees cities are forced to pay counties; and $20 million for libraries. However, counties annually lose $1 billion because of ERAF, even with backfills such as Proposition 172 money for public safety. Cities lose $427 million a year and special districts are out $284 million. Thus, the one-time subventions amount to about 10% of what local government would have received without ERAF and subsequent backfills. For example, the Bay Area city of San Carlos will receive about $79,000 in property tax subventions and $30,000 for booking fees, Assistant City Manager Brian Moura said. However, ERAF costs the city about $750,000 annually. Shopping malls and big boxes (SUBHED) The advent of ERAF in 1993 only exacerbated what some observers call the "fiscalization of land use." When Proposition 13 eliminated the ability of City Councils and Boards of Supervisors to raise property tax by fixing tax rates statewide, local entities started aggressively pursuing sales tax generators at the expense of other development. Local government also began issuing bonds — some riskier than others — to help developers of desirable projects, jacked up impact fees and created various assessment districts. With ERAF cutting further into the property tax base, sales tax became even more important Land-use decision-makers need a different set of rewards than now exists, said Jones, of the League of California Cities. "Give local government the incentives to do the right things for the long-term health of this state," he said. The emphasis should be on high-paying jobs, not retail outlets, he said. But, Jones noted, the pursuit of sales tax is not always reduced to approving a Wal-Mart on the edge of town to the dismay of downtown's mom and pop merchants. Business to business sales can generate big amount of sales tax, as it does in Silicon Valley, he said. Among the entities considering state and local fiscal reform is the Commission on Local Governance for the 21st Century. The governor and Legislature appointed the commission late last year to examine the Cortese-Knox Local Government Reorganization Act of 1985, which guides Local Agency Formation Commissions. But the 21st Century commission has learned that dividing up the money may be the biggest factor in drawing jurisdictional lines. According to Ben Williams, the commission's executive director, several themes have emerged from testimony during hearings around the state, among them, the obstacle posed by revenue-neutrality. The 1992 revenue-neutrality law requires new cities to make counties fiscally whole. Revenue-neutrality, which arose because of county's fiscal plight, means communities that would like to incorporate would have to give property and/or sales tax revenue to the county for things like public health, welfare, elections and jails — thus decreasing the would-be city's funding for local law enforcement, parks and community planning that likely forced the incorporation effort. "The cities feel the counties are trying to hold them up to save money. But the counties make a valid point — most of a county's costs continue after an area incorporates," Williams said. Another common sentiment heard at commission hearings regards the missing connection between responsibility to provide a service and the ability to raise revenue for the service, Williams said. Also, local government leaders complain that the state has replaced discretionary property tax revenues with money that has strings, such as Proposition 172 sales taxes for public safety. Top Of The Agenda SUBHED Theories vary as to why local government finance has become a hot topic, but most people agree rapidly rising state revenues, and vocal campaigns from cities and counties have are factors. "We hear about it at every meeting either directly or indirectly," Williams said. It is not much of an exaggeration to say that everyone has a committee or task force examining local government finance. About 10 major efforts are underway, and various reports and recommendations are due during the last half of the year. Among the major groups in action are Williams' 21st Century commission, the State Municipal Reform Advisory Team appointed by Controller Kathleen Connell, Assembly Speaker Antonio Villaraigosa's Commission on State and Local Government, and the California Governance Consensus Project. The Legislative Analyst's Office focused attention on the issues when it issued a report in February called "Shifting Gears: Rethinking Property Tax Shift Relief." More than anything, the LAO report emphasized the complexity of the problem and the need for an overhaul. The Legislature appears to have ignored, at least for now, the LAO's bottom line. "We recommend the Legislature reject the notion of mitigating each local government's losses," the report stated. "Instead, we recommend the Legislature use any relief funds to help transform California's system of local government finance into one that reflects modern needs and preferences of local communities." A broad structural change appears likely to take the form of the constitutional amendment on next year's ballot. But packaging the amendment for voters will be "very difficult," Williams warned. "It's not clear that the voters think that there is a problem." Jones, from the League of California Cities, said support from the business community — and some sort of tax reduction — will be necessary to interest voters in this arcane subject. Contacts: Ben Williams, Commission on Local Governance in the 21st Century, (916) 322-9906. David Jones, League of California Cities, (916) 658-8200. Debbie Beltram, Sen. Steve Peace's office, (916) 445-6767. Brian Moura, City of San Carlos, (650) 802-4210.

Sewer connection fees and capacity charges are not the same as development fees imposed as a condition of project approval, meaning they are not subject to the conditions of the Mitigation Fee Act, The Fourth District Court of Appeal has ruled. The court decided that a hotel builder was not entitled to a refund of unspent sewer connection fees, as the developer might be to unspent development fees. The unanimous three-judge panel ruled that the Government Code (§ 66013) specifically excludes sewer connection fees and capacity charges from refund provisions of the Mitigation Fee Act, frequently known as AB 1600. In 1989, Taj Development Corp. and Chandulal Patel requested a sewer connection permit from Capistrano Beach Sanitary District for the Dana Point Hilton. Taj paid $393,000 to connect the hotel to the sewer system. Five years later, Taj sought a refund of the unexpended portions of the fee. The district rejected Taj's claim, and the two sides then sued each other. Taj argued it spent $750,000 to construct sewer and water lines and the $393,000 connection fee was "governmental greed." The district at first did not argue the Mitigation Fee Act did not apply to the connection fees. Later, the district did contend the connection fee was not a development fee and, therefore, Taj had no right of refund. Orange County Superior Court Judge C. Robert Jameson sided with the district, and, on appeal, so did the Fourth District, Division Three. The appellate panel noted two statutory schemes were in effect at the time Taj paid its fees. The Mitigation Fee Act (§§ 66000 — 66008) set rules for imposing development fees and includes a section that allows for the refund of the unspent portion of fees under certain circumstances. Also in effect in 1989 was a section of the Government Code addressing local agency service fees and charges (then § 54991, now § 66013). "This section did not authorize a refund for connection fees," wrote Presiding Justice David Sills. "Instead, it provided for a reduction of future connection fees if earlier fees created ‘revenues in excess of actual cost.'" In 1998, the California Building Industry Association sponsored legislation in response to the Taj case. As introduced, SB 1760 would have placed sewer and water connection fees in the same category as other development fees. However, the Assembly amended the bill to delete language requiring that water and sewer fees be treated similarly to development fees. Justice Sills quoted an Assembly Local Government Committee bill analysis which said, "‘This bill requires only that capacity charges be accounted for. It does not increase any restrictions regarding the imposition, use, or reporting of a connection fee, the type of fee at issue in Taj. This bill contains no provisions for the refund of either connection fees or capacity charges.'" The Legislature further amended and eventually passed SB 1760, which became Chapter 644 of the Statutes of 1998. "Although it provides for stricter accounting of capacity charges (but not water or sewer connection fees), it does not provide a refund remedy," Sills wrote. Taj argued that the sanitary district imposed the fee on the project as part of the development approval process to defray costs of public facilities related to the project. "Taj's argument," Sills wrote, "completely ignores the existence of former § 54991 (now § 66013) which specifically addresses the fee it paid. And Taj ignores the key language defining a ‘fee' subject to the refund provisions under the Act: The fee must be charged by the local agency in connection with approval of a development project. … No evidence in the record shows the District conditioned the approval of the hotel project on payment of the fee or in any way imposed the fee in connection with issuing or approving a permit for development." Sills continued, "The language in the Fee Mitigation Act is clear. The repetition of the phrase ‘as a condition of approval of a proposed development' throughout the chapter strongly suggests the refund provisions of the Act apply to ‘development fees.' Taj's fee is governed by § 54991 (now § 66013) which dealt with the rates imposed to connect the hotel to the public sewer system." The Case: Capistrano Beach Water District v. Taj Development Corp., No. G021735, 99 C.D.O.S. 3952, 1999 Daily Journal D.A.R. 5011, filed May 25, 1999. The Lawyers: For Capistrano: Gary Lee Gebler, (949) 833-3715. For Taj: Stephen M. McNamara, McNamara, Van Blarcom, McClendon & Leibold, (714), 639-6700.

Community empowerment appears to have been the overriding theme during June's local elections. Los Angeles voters approved a new city charter that calls for area planning commissions, Pleasanton and Scotts Valley voters rejected separate city council-approved subdivisions, and Ventura voters defeated a redevelopment area backed by the City Council. Meanwhile, school bond proposals had mixed results, with bonds in Northern California generally doing better than those in Southern California. Passage of the new Los Angeles City Charter is the most significant local government development of the year anywhere in the country, said Raphael Sonenshein, executive director of the Los Angeles Appointed Charter Reform Commission and a political scientist at California State University, Fullerton. Voters approved the new charter by a 60-to-40 ratio after both the appointed commission and the separate Elected Charter Reform Commission (the two had been rivals) backed the document. The new charter calls for creation of at least five area planning commissions and establishment of neighborhood councils. Supporters said the local bodies would allow citizens more input on development and other community issues. "I think it will have a dramatic impact on people's feelings about the land use process," Sonenshein said. "People won't have to go to as much trouble in order to be heard." Indeed, traveling across town and waiting through a giant agenda to provide testimony on a proposed variance discouraged average citizens, said David Diaz, policy analyst for the elected commission and an environmental planner at CSU, Northridge. "The meetings are going to be much more accessible," he said. The revised charter appears to give the five area commissions, which the mayor and City Council will appoint, authority over only minor land use issues, such as variances, conditional use permits and similar quasi-judicial matters. That is fine with Sonenshein. "It will not affect major projects that have citywide implications," he said. "It is not a regionalization of the Planning Commission. It is really a regionalization of the Board of Zoning Appeals." Besides the local planning commissions, the charter requires Mayor Richard Riordan to create the Office of Neighborhood Empowerment, name a general manager and select a seven-member commission, Sonenshein said. The goal is to complete criteria for appointments to neighborhood councils by July 1, 2000, the effective date for most provisions in the new charter. The neighborhood councils will be advisory only. However, Diaz noted, the new charter lets the City Council expand the mandatory powers of the area planning commissions and the neighborhood councils. "I view this as a major, historic victory for neighborhood groups, homeowner groups and environmental groups," Diaz said. Interestingly, proposals to expand the 15-member City Council to 21 or 25 members failed overwhelmingly at the polls. Each councilmember new represents about 235,000 constituents. The new charter's impact on the San Fernando Valley secession movement is unclear. The Los Angeles County Local Agency Formation Commission has begun preliminary steps for a massive study on the proposed break up of the City of Los Angeles. The vote for charter reform confirms secessionists are headed in the right direction, contended Jeff Brain, president of Valley Voters Organized Toward Empowerment. But, he added, "We feel the charter didn't go nearly far enough to satisfy the hunger in the Valley for change." Valley VOTE advocates self-governing boroughs, elected neighborhood councils and changes to the tax structure to help business, Brain said. He predicted additional charter revisions may arise as city leaders attempt to stave off Valley secession, as well as fledgling secession movements in Wilmington, San Pedro, Westchester and Playa Del Rey. Diaz, however, called the charter reform a defeat for Valley VOTE. If voters rejected the new charter, it would have given secession a green light. Instead, the election proved the city can come together to do something meaningful, Diaz insisted. Sonenshein predicted implementation of the new charter will focus attention away from secession for a while. "We've never billed this as the answer to secession," Sonenshein said. "We asked a different question: Can the city be better governed?" Participants and observers agree implementation of the new charter is key, especially because the majority of city councilmembers openly opposed or were ambivalent about the new charter. Riordan, however, championed charter reform, partly because it expanded his authority. Growth opponents win In Pleasanton, in Alameda County, 60% of voters rejected an 89-unit subdivision. The election was a referendum on a rezoning and planned unit development agreement for 46 acres that the City Council approved early this year. The developer, the DeSilva Group, poured $350,000 into a campaign to approve the referendum, or about $10 per registered voter. The DeSilva Group sent every voter a 100-page packet with aerial photos and numerous reports. However, anti-growth sentiment runs strong in Pleasanton these days. Pleasanton's vote on Measure P might be a precursor to balloting in several East Bay cities this November and in March of 2000 on a broad growth-control initiative backed by the Citizens Alliance for Public Planning. The measure would require a public vote for any general plan amendment, rezoning, specific plan or development agreement involving 10 or more dwelling units. Backers have submitted signed initiatives in Pleasanton, Livermore, Danville and San Ramon. A larger subdivision in Scotts Valley fared no better during June balloting when 61% of voters in the Santa Cruz County town rejected referendums on a general plan amendment and specific plan amendment that would have allowed 145 houses on a portion of 180 acres. Voters defeated the subdivision for three reasons, according to Stephany Aguilar, a councilwoman who opposed the project. The Glenwood development, proposed by Keenan Land Co. of Palo Alto, would have harmed rare plant and animal species, impacted a groundwater recharge area and added more vehicles to an already congested road intersection, she charged. While voter turnout in most jurisdictions was in the 20% to 30% range, 60% of Scotts Valley voters participated in the June referendum. Community Development Director Laura Kuhn said a different project elsewhere in town — by Kaufman & Broad — has stirred public interest because it contains lots of 3,200 to 6,000 square. "People seem to be opposed to projects that have lots with less than 10,000 square feet," she said. That opposition evinced itself in the vote on the Glenwood project, which proposed lots of 6,000 to 20,000 square feet. Interestingly, the city had originally approved a 276-unit development and golf course on the Glenwood site. But the recession of the early 90s caused the project to fall apart, Kuhn said. Scotts Valley voters may face another referendum in the fall, this time regarding a 70-unit apartment complex. Redevelopment loses Voters in Ventura defeated a referendum on midtown redevelopment by a 57-43 ratio. The $53 million project would have focused on two aging boulevards lined with retail shops and offices, and a shopping mall that is undergoing a city-subsidized renovation. Redevelopment opponents raised fears about eminent domain, increased taxes and public debt. While the city countered those arguments, voters at the very least indicated they did not like the way the city handled the proposed redevelopment district. Allen St. James, a midtown Ventura merchant and member of Ventura Citizens Against Redevelopment Excess, said the vote was partly a reaction to corporate welfare. An existing downtown Ventura redevelopment district has subsidized a Century Theater and a Ben & Jerry's Ice Cream shop, he said. "It (redevelopment) is a perfect thing to use for slums or places that need renewing, but it's not what is needed in midtown Ventura," St. James said. Mixed bag for schools. Voters backed six school bond measures and defeated four others. The winners were: Union School District in San Jose ($92 million), Morgan Hill Unified School District ($72.5 million), Golden Valley Unified School District in Madera ($30 million), Orcutt Unified School District ($15 million), and Cloverdale School District ($4 million). The losers were: Vista Unified School District ($96 million), La Mesa-Spring Valley School District ($33 million), Santa Maria-Bonita School District ($33 million) and Folsom-Cordova Unified School District ($18 million). Voters in the Albany Unified School District approved a $120 annual parcel tax to fund additional school programs. Contacts: Raphael Sonenshein, Los Angeles Appointed Charter Reform Commission, (714) 278-3521. David Diaz, Los Angeles Elected Charter Reform Commission, (818) 677-2904. Jeff Brain, Valley VOTE, (818) 501-5862. Laura Kuhn, Scotts Valley Community Development Department, (831) 438-2324. Allen St. James, Ventura Citizens Against Redevelopment Excess, (805) 643-8454. Citizens Alliance for Public Planning: http://home.att.net/~alliance

Dairy expansions in the southern San Joaquin Valley have slowed after Attorney General Bill Lockyer submitted legal challenges and an environmental group filed lawsuits. Lockyer and environmentalists have forced local planning departments to examine their practices in approving dairies, and to begin preparing environmental impact reports. "The issue seems to be focussing on cumulative impact," said Leonard Garoupa, Madera County's planning director. Prior to Lockyer's involvement and lawsuits filed by the Center on Race, Poverty and the Environment, counties throughout the region approved giant dairies with mitigated negative declarations, instead of mandating EIRs. But now several dairy developers have begun EIRs, and some counties are pursuing program EIRs related to dairy expansion. A program EIR could focus on the cumulative impacts of dairy growth and suggest broad policy alternatives, and it could reduce the need for extensive environmental review of each new dairy. The reason for all the concern: cow manure from dairies is a major polluter of water supplies. The studies now underway are expected to consider how additional dairies will affect native grasslands and wetlands, and the impacts of cow manure on water quality. The dairy issue appears ready-made for the newly elected Lockyer, whose environmentalist supporters had encouraged him to allow his office to comment on the adequacy of local CEQA reviews. His predecessor, Dan Lungren, stopped this practice. (See CP&DR, March 1999.) In April and May, the AG's office filed two petitions for writs of mandate in Tulare County, asking that special use permits be revoked and that there be full compliance with CEQA. No court action has been taken yet on the petitions, but the filing sent a strong signal that Lockyer intends to play a bigger role in land use and environmental issues than Lungren. "We've asked that CEQA be followed," said Lockyer spokeswoman Sandra Michioku. "The review of environmental impacts should be looked at." The San Joaquin Valley is home to many of the state's dairies, many of which are factory farms containing thousands of cows. Dairies have moved to the Valley because of urbanization in San Bernardino County's Chino Basin, a dairy producing area for decades. Despite environmentalists' concerns regarding habitat for endangered species and traffic congestion, the City of Ontario is moving ahead with plans to annex 13 square miles of what has been farmland. Early development plans call for 31,000 houses and apartments on the land proposed for annexation. "The dairy farmers are getting pushed out of the Chino basin both by rising land prices and also by increased environmental scrutiny," said attorney Luke Cole of the Center on Race, Poverty and the Environment. "They're coming over to the wild, wild west, which is Kern County, Kings County, Tulare County, and they're really taking advantage of lax environmental enforcement and planning departments that don't really have the capacity to oversee major dairies." Cole's organization sued Kings County in April over four of the five dairies it had approved for the J.G. Boswell Co., an international agricultural company based in Pasadena. Boswell officials then asked the county to rescind its approval of conditional use permits and said it would do an EIR instead. Boswell planned to build dairies for 55,000 cows on 7,000 acres in Kings County, according to the Fresno Bee. The reason for the change, Boswell's general counsel Edward Giermann said in a letter to the county, was "because of the California Attorney General's recent expressions regarding the need for Environmental Impact Reports in Tulare County. We think it is entirely possible such expressions could affect Kings County dairy activities too." In Kern County, a similar lawsuit was settled when Borba Dairies agreed to prepare an EIR, according to Planning Director Ted James. Ironically, the two proposed dairies in Kern County are for an area that had previously been designated for urban use. In Madera County, the situation caused that county's planning commission to delay a dairy approval recently, Garoupa said. In Tulare County, the attorney general's actions threaten plans for the Costa and Airosa dairies. Each dairy would be located on more than 500 acres, with most of the land used to spread cow waste. The Costa facility, for example, would use 577 acres, but only 164 acres would be for the dairy. Tulare County is the leading dairy county in the nation, with nearly 300 dairies in operation. There are 20 applications for new and expanded dairies pending, according to George Finney, assistant director of the county's resource management agency. Finney said a program EIR for dairies should be completed by the fall, which ought to help the county process applications faster. Most of the applications for dairies, he said, are in the remote parts of the county where there are few residences, a low water table and farmland is considered marginal. "There's nothing to harm by putting it there," he said. At the state level, the dairy industry is hoping that a proposed $1.8 billion state water bond will include money to help Central Valley counties grapple with the clean water issues raised by dairies' growth. The industry is asking for $20 million to help counties cover the costs of preparing program EIRs, and for help setting up a revolving fund for dairy and other animal farmers to improve pollution control activities on their properties, according to Gary Conover, a lobbyist for the Western Dairymen's Association. Money from the revolving fund would pay for such things as tailwater recycling systems, larger holding lagoons and better manure control systems. An earlier water bond failed to make it onto the November 1998 ballot. At that time, dairy groups were only asking for $10 million. But in light of the increased pressure placed on them to get their manure together — including recent inspections of farms by the federal EPA — that money request has doubled. As of mid-June, none of the money had been included in the water bond measure. Dairy operators "are beginning to have difficulty with banks funding new or expansion dairies ... due to the heightened environmental publicity," Conover said in a recent memo. Contacts: Gary Conover, lobbyist, Western Dairymen's Association, (916) 447-0700. Leonard Garoupa, planning director, Madera County, (559) 675-7821. George Finney, assistant director for long range planning, Tulare County Resource Management Agency, (559)733-6291. Ted James, planning director, Kern County, (805) 862-8616. Luke Cole, lawyer, Center on Race, Poverty and the Environment, (415) 495-8990. Bill Zumwalt, planning director, Kings County, (559) 582-3211.

A city may not use an interim ordinance to suspend the processing of development applications during a general plan update, the Fourth District Court of Appeals has ruled. The appellate panel threw out a City of San Juan Capistrano interim ordinance that stopped the processing of applications for certain large parcels. The ordinance, first adopted in June 1998, stalled Concorde Development's application for the 356-unit Whispering Hills subdivision and golf course on the eastern edge of the south coast city. The city can use an interim ordinance to deny subdivisions, use permits, variances, building permits and other entitlements if the public health, safety and welfare is at risk, the unanimous appellate panel said. However, Government Code § 65858, which authorizes interim ordinances, does not permit the city to stop the processing of applications. "A tentative subdivision map is by definition tentative," Presiding Judge David Sills wrote for the unanimous court. "Formal submission of the application to the city's planning department merely starts the wheels rolling and allows the city, the developer and the public to begin the environmental review process. It does not guarantee the landowner any right to an approval of the proposed project. As always, the city retains the power to deny it. (Govt. Code § 66474.)" Concorde in 1997 submitted its application for Whispering Hills, a development of $500,000 to $850,000 houses on 156 acres, with a golf course on the remaining 200 acres. Although the project fit with San Juan Capistrano's general plan, residents quickly complained about grading that the construction would necessitate, as well as traffic and density once houses were built. The City Council responded on April 21, 1998 by telling the planning department to begin studying possible amendments to the general plan's land use element. Two months later, the City Council adopted an interim, 45-day ordinance to suspend processing of certain development applications pending a comprehensive review and update of the general plan. The measure allowed special studies and environmental impact reports to go forward on effected projects, but it barred public hearings. The interim ordinance exempted developments with vested rights, subdivisions of 50 or fewer lots, senior citizen developments, commercial projects of less than 10 net acres, institutional projects, and agricultural operations permitted by underlying zoning. "While the city denies it," Judge Sills wrote, "Concorde argues the effect of the exemptions was to exclude every parcel within the city except a small handful that have no present development plans — and, of course, the Whispering Hills project." In July 1998, the City Council extended the ordinance for 10 months and 45 days. (In May of this year the city extended the ordinance for another year.) Concorde filed a complaint for declaratory relief and a petition for writ of mandate and prohibition. But Orange County Superior Court Judge Barbara Tam Nomoto Schumann denied the petition. The Building Industry Legal Defense Foundation then filed a petition for writ of mandate in the Fourth District Court of Appeal, Division Three. The appellate court set aside Schumann's ruling and issued a preemptory writ of mandate declaring the city's ordinance invalid. At the appellate court level, the city argued that processing specific proposals during the general plan update was pointless. The city also contended Government Code § 65858 authorizes the city to stop formal processing of development applications. Not so, said the appellate court. The statute providing for "temporary interim zoning ordinances" has been around for decades with only minor amendments. "Although the Legislature could have tied adoption of an interim ordinance to the submission or processing of a development application, it chose to set the bar higher, restricting its application to situations where an approval of an entitlement of use was imminent," Sills wrote. The opinion continued: "Interim ordinances, often referred to as ‘stop-gap' or ‘incubation period' ordinances, prohibit a property owner from using his or her property for a specified use for a limited period of time. (CEEED v. California Coastal Zone Conservation Commission (1974) 43 Cal.App.3d 306, 314.) They protect and promote the planning by, among other things, prohibiting the introduction of potentially nonconforming land uses that could defeat a later adopted general plan or zoning ordinance. (216 Sutter Bay Associates v. County of Sutter (1997) 58 Cal.App4th 860, 869.)" The Subdivision Map Act establishes the procedure for processing development applications and "a city cannot use an interim ordinance as a backdoor method to modify the rules," the court said. The Case: Building Industry Legal Defense Foundation v. Superior Court of Orange County, No. G024456, 99 C.D.O.S. 4776, 1999 Daily Journal D.A.R. 6133, filed June 17, 1999. The Lawyers: For BILT: Robert I. McMurry, Nossaman, Guthner, Knox & Elliott, (949) 833-7800. For City of San Juan Capistrano: John R. Shaw, Woodruff, Spradlin & Smart, (714) 564-2603.

RICHMOND RE-INVENTS A FORD PLANT AS HOUSING Thirty years after the start of the historic preservation movement, a debate has arisen in the preservation community on how best to save old buildings. Two camps have emerged: let's call them the Authenticizers and the Pragmatists. The Authenticizers are purists in preservation matters, and believe that buildings should be maintained, or returned, as closely as possible to their original condition and use. The Pragmatists, for their part, see the old building as a point of departure for adaptive reuse. Pragmatists see nothing wrong in making alterations here and there, although such projects, in their most extreme form, risk remodeling the building so dramatically that its historic form may be obliterated. Extreme examples of adaptive reuse cited in Stewart Brand's excellent book, How Buildings Learn, include the group of Quaker Oats grain silos in Akron, Ohio, that were converted into a hotel, and an Italianate house on the East Coast that became a McDonalds. Another example of extremity here in California is the proposed Ford Point in the waterfront area of the City of Richmond. In this extraordinary project, a mothballed Ford factory dating from 1931 is to be converted into 213 units of live-work housing, with some extra space left over for office space and a museum of the building's earlier career as an automobile assembly plant. The building is the last remaining structure on the West Coast designed by Albert Kahn, a prolific Detroit architect who provided both fancy-dress corporate buildings — including the immense, former General Motors headquarters building in Detroit — as well as countless factories that are notable for unpretentious elegance. Beyond its interest as adaptive reuse, Ford Point might symbolize another ongoing phenomenon of recent years: the gentrification of California's industrial waterfronts. Richmond is among a number of cities, including Long Beach, Suisun City and Monterey, that have put a great deal of energy into redesigning their outdated waterfronts into places of recreation, tourism and up-scale housing. We're not going to spend much time on Richmond's waterfront site plan. The plan is admirable in its intent to create a stimulating community on and near the waterfront with an array of uses, including a commercial/industrial park, a shopping center, a mixed-use residential community with 2,200 housing units, the Regatta Center for Research and Development, laboratories for the state Department of Health Services, and a UC Berkeley research field station. The bad news is the physical planning itself is improvised and casual. Here, history has been both a villain and a hero. It was probably difficult or impossible to superimpose a more regular pattern of streets onto the large, irregularly shaped waterfront parcels that are the vestiges of Richmond's industrial past. Still, there is something suburbanizing about some of the parcels, with inward-looking circulation systems, that are regrettable, if not entirely avoidable. There is little cause for regret, however, at Ford Point. Although the proposal may seem improbable at first glance, the actual diagram of the project is convincing as housing. The design is notable for finding new possibilities in the building's existing shape. Particularly ingenious is the way in which designers have fit the units inside the former Ford plant. The live-work units are arranged like rowhouses inside the immense shell of the automobile factory, with pedestrian alleys in front and behind. Each unit is located directly under one of the "teeth" atop the saw-tooth roof of the Ford building, which originally provided natural light to the factory. The added ceiling height provided by the old vertical skylights allows the designers to give each live-work unit a bottom floor, a mezzanine level up half a flight of stairs, and an upper loft space up another half flight of stairs. To provide light and air, the designers have removed part of the roof while leaving the structural skeleton intact. This concept makes the pedestrian alleys into open-air spaces without changing the façade or the basic shape of the building. These alleys form the public or semi-public circulation system inside the immense building. On the exterior, architects have marked these pedestrian entrances with tower-like "way-finding beacons" that stand forward from the historic façade. These are the most conspicuous changes to the original building. The plan also calls for 129,000 square feet of office space, 13,000 square of "specialty retail," the museum and leasing offices. Johnson Fain Partners is the managing architect for Ford Point, and has assistance from Michael Willis & Associates, David Baker Associates Architects (loft design) and Carey and Co., Inc (restoration architecture.) The developer is Forest City Enteprises of Cleveland, Ohio. Despite the creativity of the reuse, Ford Point is one of those rare projects that succeeds as both historic preservation and adaptive reuse. Here, perhaps, is one place where the Authenticizer and the Pragmatist camps in the preservation movement are reconciled. Admittedly, it is easier to build new uses inside the immense shell of a former factory or warehouse than it would be inside a Victorian house. Still, there is more to admire in Ford Point than ingenuity. The scheme has created, at least on paper, a place that looks like a good place to live and start a business. It has found a manner to use the existing spaces and profile of the building in ways that were never imagined by the original architect. And if the housing is successful commercially, the building will be safe for decades. The "extreme" solutions of adaptive reuse don't always work well with the original structure. In the case of Ford Point, however, the extreme solution is also the best fit.