Citizens have no right under the federal constitution to seek a voter referendum of a city's land sale, the Ninth U.S. Circuit Court of Appeals has ruled. In a case from Arizona, the federal appellate court dismissed arguments that the Tenth Amendment establishes the right to a referendum. The state constitution sets the rules for referenda, the court determined. "It is the power of the federal government which is constrained by the Tenth Amendment, not the power of the states," the court wrote. The case arose from an ordinance adopted by the Prescott City Council in October 1995. The measure provided for the sale of the city-owned Hassayampa Lake to Hassayampa Lake Holdings, LLC. The small but deep reservoir about 10 miles outside town was formerly part of the city's water system. The lake had become a popular place for people to swim, kayak and hang out during the summer, prompting complaints from nearby residents and raising liability concerns for city officials. The City Council's ordinance included a declaration of emergency "for the immediate preservation of the public peace, health and safety" and it took effect immediately. Citizens who spent leisure time at the lake opposed the sale, and they began to pursue a referendum. However, the Prescott city clerk refused to issue referendum petitions because the ordinance included the emergency declaration and, therefore, was not subject to referendum under the Arizona constitution. The California constitution has a similar referendum exception. Article II, Section 9(a) excepts "urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the state." In Prescott, opponents of the sale sued in Yavapai County Superior Court. The court said the emergency ordinance was a non-reviewable action whether or not an actual emergency existed. The state appellate court and state Supreme Court declined to hear an appeal. Opponents then took their case to federal court, where U.S. District Judge Stephen M. McNamee granted the city summary judgement. On appeal, opponents of the lake sale argued three things: that they had a Tenth Amendment Right to referendum, that the emergency ordinance exception violated their First Amendment rights to petition the government, and that the federal court should determine whether a true emergency existed. None of the three contentions found favor with the three-judge appellate panel. The opponents "misapprehend the scope and purpose of the Tenth Amendment," Judge Sidney R. Thomas wrote. "Plaintiffs cannot found a Section 1983 claim on the Tenth Amendment because it is neither a source of federal authority nor a fount of individual constitutional rights." As for the first amendment claim, the court agreed that "states may not place overly restrictive conditions on citizens attempting to exercise initiative or referendum rights." The court pointed to the Colorado case of Buckley v. American Constitutional Law Foundation, Inc., (1999) 119 S. Ct. 636, in which the court ruled that a requirement that petition circulators be registered voters and wear name badges was an unjustifiable restriction on First Amendment rights. The appellate panel also pointed to Meyer v. Grant, (1988) 486 U.S. 414, in which a Colorado law that prohibited paying referendum petition circulators was ruled an undue burden on political expression. "However, plaintiffs' claims do not fall within the orbit of Meyer and Buckley," Judge Thomas opined. "Those cases teach that where the people reserve the initiative or referendum power, the exercise of that power is protected by the First Amendment applied to the states through the Fourteenth Amendment." Opponents of the lake sale, Thomas continued, sought to expand the referendum right beyond that contained in the Arizona constitution. That state's constitution does not make laws passed under declaration of emergency subject to referendum. "This is not a restriction, condition or requirement that impermissibly burdens the exercise of the referendum power, thereby invoking protection of the First Amendment. Instead, it is a delegation to the Legislature by the people of a part of their reserved power of referendum. Thus, the emergency declaration by itself does not implicate First Amendment concerns," the court said. The appellate court was not about to decide whether a true emergency existed. " laintiffs' remedy lies in the Arizona state courts, or perhaps at the ballot box, not with a federal jury," the court said. The case: Stone v. City of Prescott, No. 97-17121, 99 C.D.O.S. 2437, 99 Daily Journal D.A.R. 3185, filed April 2, 1999. The lawyers: For Stone: William B. Fortner, (520) 445-3817. For Prescott: Ralph M. Hess, City of Prescott legal department, (520) 776-6302.

As the debate over revenue-neutrality continues at the state Capitol and in local board chambers, something strange is happening. New cities are incorporating anyway. There is no tidal wave of incorporations, but the City of Laguna Woods in Orange County started business March 24, and the Contra Costa County community of Oakley will become a city on July 1. Also, leaders of Elk Grove incorporation appear near an agreement with Sacramento County officials, who bitterly fought the 1997 incorporation of Citrus Heights. Do these developments mean revenue-neutrality — the state requirement that a county be made fiscally whole by a newly incorporated city — still pose a hurdle for would-be cities? Absolutely, say observers. But evidence indicates communities can cross the hurdle, especially if a community is growing. "You can get by it," Paul Hahn, assistant executive officer of the Sacramento Local Agency Formation Commission, said of the revenue neutrality requirement. A would-be city with the ability to increase its tax base stands a better chance of surviving the revenue-neutrality test, he said. Citrus Heights, for example, will not have a great deal of money because it is not growing much. Besides the revenue-neutrality requirement, the property tax shift from counties and cities to school districts is another factor that complicates incorporations, said Alvin D. Sokolow, a University of California, Davis, professor. Also, said Sokolow, "the cities that were primed to incorporate did so in the '80s and early '90s." The remaining would-be cities are more problematic or lack the momentum that other communities had 10 years ago, he said. Although only Citrus Heights and Shasta Lake incorporated from 1993 through 1998, at least 20 California communities are in some stage of the incorporation process. California's Newest Cities Two-month-old Laguna Woods may be the state's most peculiar city. Almost the entire city lies within Leisure World, a giant, gated retirement community. The four-square-mile city contains 18,000 residents, but only 60 businesses, no schools or public parks, and almost no public roads. Opposition to opening a commercial airport at nearby El Toro Marine Corps Base galvanized Laguna Woods' incorporation drive. Although the county backs base conversion, it did not stand in the way of the new city, which voters narrowly approved three weeks before the incorporation's effective date. Revenue-neutrality "was not a huge issue," Orange County LAFCO Executive Officer Dana Smith said, because Laguna Woods' $3 million annual budget is so small. The annexation agreement calls for Laguna Woods to pay the county $400,000 annually for seven years. Rancho Santa Margarita, near Mission Viejo, could be Orange County's next city. Incorporation hearings are likely by early July, Smith said. As in Orange County, Contra Costa County did not fight incorporation of Oakley, a formerly rural hamlet in the midst of the rapidly growing east county. Oakley voters last November approved incorporation of the first new city in Contra Costa County since the mid-1980s, said Annamaria Perrella, Contra Costa County LAFCO executive director. An analysis indicated the proposed incorporation would not harm county coffers, Perrella said. County supervisors did not dispute the finding and did not insist on mitigation payments from the city, she said. Perrella conceded, though, that Oakley is probably an exception. The mostly residential city of about 14,000 people lacks commerce, whose sales and property taxes often provide the basis for county-city squabbles. Peace in Sacramento? The majority of the Sacramento metropolitan area lies in unincorporated Sacramento County, which had not had a new city for 50 years prior to Citrus Heights' incorporation. The protracted battle between Citrus Heights and Sacramento County sent a message statewide, said Professor Sokolow, who was lead author of a guide for communities considering incorporation. The county fought incorporation of the eastern Sacramento suburb for years, and the two sides did battle in court regarding tax transfers from Citrus Heights, which has a great deal of retail development. A 1998 settlement essentially gives property taxes to the county for 25 years and lets the city keep sales tax revenue. (See CP&DR September 1998.) Indications were that Sacramento County might fight the proposed incorporation of Elk Grove, a few miles south of Sacramento, just as aggressively. The county was not friendly to previous Elk Grove incorporation attempts, which voters last rejected in 1994. Acting County Executive Officer Robert Ryan Jr. in March recommended the county insist that Elk Grove and other new cities provide revenue exchanges in perpetuity. The LAFCO board, however, declined to condition Elk Grove's incorporation on revenue transfers without a sunset date. Instead, the conditions require that the suburb surrender some of its property taxes for 25 years, said Hahn, the LAFCO assistant executive. "There is a better trust level between the county and the incorporation proponents this time. There is an amount of property tax that can be secured," Hahn said. Because property taxes are paid directly to the county, the city cannot withhold payments, he noted. Elk Grove incorporation is scheduled to return to the ballot next year. Sacramento County also is the site of the fledgling movement to incorporate Rancho Cordova, on the Highway 50 corridor. The proposed city contains extensive retail, office and industrial development, the former Mather Air Force Base (which the county owns), and parcels of pasture owned by high-powered developers. Incorporation proponents began collecting petition signatures in April in hopes of getting the issue on the November 2000 ballot. Hahn said he doubted that timeframe. "This one has incredible financial implications for Sacramento County," he warned. More cities may be on the way The largest movement is actually a secession. In March, Los Angeles County officials determined petitions to detach the San Fernando Valley from the City of Los Angeles were valid, setting the stage for a massive study. Who will perform and pay for the study — estimated to cost at least $2 million — remains undecided. Los Angeles officials, led by Mayor Richard Riordon, are vigorously fighting secession, which would create a city of roughly 1.5 million people in the northern half of what is now Los Angeles. An election on San Fernando Valley secession is unlikely before 2002. Among the more unusual incorporation drives is one in the Fresno County industrial area of Malaga, where the Malaga County Water District is leading the charge. The proposed city would encompass seven to eight square miles southeast of Fresno. Malaga has long been a warehouse and manufacturing district, and about 80 percent of the proposed city is zoned commercial or industrial. Only 1,200 people live in the area, said Gerald Forde, water district general manager. Leaders of the district, which provides water, wastewater treatment, solid waste collection and recreation services, are charged with ensuring the financial health of the area, Forde said. Gaining control of land use decisions is the best way to ensure the district develops as needed, he said. "It's part of prudent management by the board, and it's providing for the future financial stability of the district," Forde said. "By going out on our own, we felt we could plan our destiny a little." Fresno County sees Malaga, the majority of which remains undeveloped, as a cash cow, and the county's land use decisions may not be best for the district, Forde contended. For instance, most of the county's sites for adult businesses are in Malaga, he complained. Until coming to the district in December 1996, Forde was in charge of economic development in Vernon, an industrial city with few residents in Los Angeles County. "Malaga can become the Central Valley's City of Vernon or City of Industry," Forde said. Fresno County, however, has sued the district. The county argues the district has no authority to pursue incorporation, and the county seeks an injunction to prevent the district from spending funds on the effort. Back at the Capitol The California State Association of Counties and the League of California Cities are behind competing Assembly bills regarding revenue-neutrality. The CSAC-backed measure, AB 1495 by Assemblyman Dave Cox, R-Sacramento, contains provisions on which the cities and counties agreed last year and builds on some of those provisions, said Hugh Bower, Assembly Local Government Committee consultant. Last year's bill, carried by Assembly Bruce Thompson, R-Fallbrook, did not become law. This year, Thompson had introduced city-backed legislation that dilutes the revenue-neutrality mandate, imposes shorter timelines on the LAFCO process and requires a LAFCO to compare like-sized communities. The legislation requires a LAFCO to take a "balanced approach" and states, "Communities that demonstrate the necessary resources, capacity and desire for self-governance shall not be denied the opportunity to incorporate solely due to the amount of mitigation payments required." Although the two sides appear far apart, CSAC and the League have been negotiating. "I think they both have legitimate concerns. I think until we have a more equitable way of financing municipal services, it seems the county loses every time," Bower said. "It all comes back to local government finance." Contacts: Paul Hahn, Sacramento County Local Agency Formation Commission, (916) 874-6458. Gerald Forde, Malaga County Water District, (559) 485-7353. Hugh Bower, Assembly Local Government Committee, (916) 445-6034. Dana Smith, Orange County Local Agency Formation Commission, (714) 834-2556. Alvin D. Sokolow, University of California, Davis, (530) 752-0979.

The Coastal Act does not allow destruction of a designated environmentally sensitive habitat area simply because the destruction is mitigated off-site, the Fourth District Court of Appeals has ruled. The court also determined that residential development of wetlands and removing a pond to build a road were not permissible under the Coastal Act. The decision stems from the 25-year controversy over Bolsa Chica, a 1,588-acre area of wetlands and coastal mesas near Huntington Beach where developers have sought to build. In reviewing challenges from the environmentalists and developers over the Local Coastal Plan approved by the Coastal Commission, the appellate court sided with the environmentalists in every instance. Paul Horgan, attorney for the Land Trust, called the ruling "the most definitive decision concerning wetlands that I've seen from an appellate court." The case marks the first time an appellate court has tackled the issue of building on a portion of a wetlands under the theory that the rest of the wetlands would be spared and improved, he said. The court said the Coastal Act prohibits the trade-off approved by the Coastal Commission. Justice Patricia Benke quoted the trial court decision: " ‘The Commission's interpretation would open the door to any type of development in a wetland whenever a finding could be made that funds were otherwise unavailable to restore degraded wetlands.'" In 1985, Orange County and the Coastal Commission approved a 5,700-unit residential development, a marina, a 600-foot-wide navigable ocean channel, and oceanfront hotels and shops. After outcry from environmentalists, a public-private coalition worked out an LCP that the Coastal Commission approved in 1996. The LCP eliminated the marina and navigable channel, reduced the number of homes to 3,400, and expanded the open space and wetlands restoration to 1,300 acres. By late 1997, the number of homes was scaled down to 1,235 and homes were eliminated from the wetlands. The Bolsa Chica Land Trust sued over the LCP. The land trust argued that replacement of a eucalyptus grove with nesting poles and other trees in a public park was impermissible. The land trust also argued the Commission could not allow residential development of a lowland as a way to finance wetland restoration, and the Commission could not approve elimination of Warner Pond to accommodate Warner Avenue widening. San Diego County Superior Court Judge Judith D. McConnell sided with the land trust regarding the lowland development and Warner Pond, but approved relocation of the bird habitat. Judge McConnell remanded the entire LPC to the Commission for further proceedings. The land trust appealed the bird habitat portion of the ruling, while the Coastal Commission, Koll Real Estate Group and Signal Bolsa Corp. appealed the rulings regarding lowland development and Warner Pond. The unanimous three-judge panel upheld the decision to prevent houses on the lowland area and to prevent destruction of Warner Pond. The appellate court reversed the trial court regarding the bird habitat. The Commission itself identified the 6 1/2-acre eucalyptus grove as an environmentally sensitive habitat area within meaning of the Public Resources Code § 30107.5. At least 11 species of raptors nest in the trees or use them as lookouts. The Coastal Act provides heightened protection to ESHAs, the court ruled. Justice Benke cited Sierra Club v. California Coastal Commission, (1993) 12 Cal.App.4th 602, known as the Pygmy Forest case. "We have found that under both the Coastal Act and CEQA: ‘ "The courts are enjoined to construe the statute liberally in light of its beneficent purposes. The highest priority must be given to environmental consideration in interpreting the statute,"'"Justice Benke wrote. All sides agree the eucalyptus grove is unhealthy, but that does not mean it receives less protection as an ESHA, the court said. Furthermore, the court rejected the argument that transferring habitat values to a different location is allowed under § 30007.5 in this instance. No one proved why preservation of raptor habitat at the existing location is unworkable, the court wrote. As for the wetlands, the Commission allowed residential building in portions because development would fund needed restoration in other degraded portions of the wetlands. The trial court, in interpreting § 30411, disagreed with the Commission's reasoning, as did the appellate court. If the Legislature had intended to permit residential development in wetlands, it would have said so unambiguously, the court ruled. The appellate court said Warner Pond must be protected because roadway expansions into a wetlands "are permitted only when no other alternative exists and the expansion is necessary to maintain existing traffic capacity." In this case, Warner Avenue was being widened to accommodate future traffic, the court said. The ruling will again slow Bolsa Chica development because the Coastal Commission must revise the LCP. However, because the developers have agreed to sell all the wetlands to the state, the ruling may not significantly affect the most-recent development plans. The Case: Bolsa Chica Land Trust v. Superior Court of San Diego County, Nos. D029461, D030270, 99 C.D.O.S. 2821, 1999 Daily Journal D.A.R. 3619, filed April 16, 1999. The Lawyers: For Bolsa Chica Land Trust: Paul Horgan, (213) 622-2717. For California Coastal Commission: Jamee Jordan Patterson, deputy attorney general, (619) 645-2023. For Koll Real Estate Group and Signal Bolsa Corp., Alvin S. Kaufer, Nossaman, Guthner, Knox & Elliott, (213) 612-7800.

The Quino Checkerspot Butterfly is the latest endangered species to cause confusion and controversy in Southern California, joining such famed animals as the Stephens kangaroo rat, the California gnatcatcher and the Delhi sands flower loving fly. The butterfly was at first thought to live only in a few regions of Riverside and San Diego counties, where colonies have been found. But the U.S. Fish & Wildlife Service issued a map in January showing potential Quino Checkerspot habitat in parts of six counties in Southern California — San Diego, Orange, Riverside, San Bernardino, Los Angeles and Ventura. As part of the California Environmental Quality Act process, a botanist must determine whether a potential building site is home to endangered species. With the listing, the Quino Checkerspot is one more species that botanists must look for. But the Fish & Wildlife map has been attacked, with scientists and developers wondering why such an extensive survey must be done for an insect that has not been spotted in some of the areas for more than 70 years. Further complicating matters is the fact that the adult butterflies only appear for periods of four to eight weeks a year, which makes surveying difficult. The butterfly and its larvae are found around several plants, including plantago and owl's clover. The orange, black and white spotted butterflies are several inches long. Decades ago, the Quino Checkerspot was one of the most common butterflies in Southern California. Historical records show that the butterflies lived in the Santa Clarita Valley's Mint Canyon area in northern Los Angeles County during the 1920s and in coastal Orange County during the 1930s. "I'm thrilled that it was listed," said University of Nevada-Reno biology professor Dennis Murphy, who first petitioned for the listing in 1988. But Murphy, who has conducted butterfly surveys for landowners, criticized the behavior of the U.S. Fish & Wildlife Service for what he termed "draconian measures" for surveying private property. He said property owners in Riverside County have been treated poorly by the service, and the surveys are expensive. Builders immediately criticized the map showing potential butterfly habitat in parts of six counties. But Jim Bartel, an assistant field supervisor for the Fish & Wildlife Service, said the map merely showed graphically what the service's 1997 protocol on the listing had said in writing. He said the building industry requested the map. "Now of course, they wished they hadn't asked for a map," he said. Animosity against the listing first surfaced last year in Riverside County, where the Board of Supervisors tried to exempt individual homebuilders from complying with federal endangered species regulations related to it. But a judge ruled against the Board of Supervisors. (See CP&DR, December 1998.) In February 1998, the county's planning director reported to the Board of Supervisors that the butterflies had not held up any of the 300 projects reviewed since its listing, according to The Press-Enterprise of Riverside. In 1998, several hundred surveys were conducted, Bartel said. Less than 10 were rejected, he said. More recently, however, surveys have found butterflies in the Temecula and Murrietta areas of the county, as well as in Southern San Diego County. The findings are affecting several projects. For example, the developer of the 1,923-unit Rancho Bella Vista near Temecula must receive an "incidental take" permit to proceed with the project, according to Bartel. Another developer has planned mitigation banking to preserve habitat for the butterfly. Many developers see the mitigation bank as a way to avoid future gridlock. The fuss about the butterfly has raised questions about the effectiveness of Habitat Conservation Plans, which the Clinton administration has pushed as a way to avoid fights over a single species. Bartel said Riverside County does not yet have a regional multi-species habitat conservation plan. The plan to save habitat for the Stephens kangaroo rat in the county, for example, was only for a single species. Murphy criticized Riverside County for refusing to plan several years ago for future listings. Any multi-species plan in Riverside County is three to five years away, he said. "Riverside County itself has set the stage for an economic train wreck by not getting involved in the multi-species planning that was available to them," he said. The Western Riverside County Multi-Species Plan should be done within two years, if not sooner, said Corky Larson, executive director of the Coachella Valley Association of Governments, the organization that is preparing the plan for Riverside County. "I think we're on a fast track," she said. "The Stephens kangaroo rat was a very bad experience for Riverside County. Some resource agencies were difficult to deal with. There were a lot of bad feelings left over from that," Larson said. In Orange County, the Orange Central Coast Natural Communities Conservation Plan lists the Quino Checkerspot butterfly as a conditionally covered species, Bartel explained. If a minor population of the butterflies is found, developers can take the species. If a major population is found, the issue would have to be addressed through the Endangered Species Act. No surveys from Orange County on the butterfly have been submitted yet, Bartel said. "It's 100% guaranteed that no one will find the butterfly in Orange, Los Angeles or Ventura Counties," said Murphy, the UNR biologist. If any Quino Checkerspots existed there, avid butterfly collectors would have found them by now, he said. In San Diego County, which adopted a Multiple Species Conservation Program in 1997, Murphy said the structure of the MSCP should make it "relatively easy" to create a plan to save the butterfly there. Some of the fiercest criticism of the Fish & Wildlife Service has come from the Building Industry Association. Borre Winckel of the BIA of Southern California in Riverside wrote a recent column in an industry newsletter about the surveys. "Our local jurisdictions are not and should not act as agents for the Fish & Wildlife Service and be made to enforce the Endangered Species Act," he wrote. "It is the builder/developer who runs the risk of the consequences of an illegal take." Winckel also wrote: " his latest episode proves once again that the Service stops at nothing and is perfectly willing to risk the completion of the proposed Multi-Species Habitat Conservation Plan by alienating at least half the people at the policy table..." The Quino Checkerspot has a Northern California relative, the Bay Checkerspot, which proved controversial during the early 1980s. The Bay Checkerspot butterfly is found only in San Mateo and Santa Clara Counties and is listed as a federal threatened species. When the city of San Jose wanted to open a landfill at the time, the city worked with Waste Management Inc. to save land for the butterfly, Murphy said. Contacts: Jim Bartel, U.S. Fish and Wildlife Service, (760)431-9440 Dennis Murphy, University of Nevada, (775) 784-1303

FRUITVALE: THE DIFFICULT BIRTH OF THE TRANSIT VILLAGE One of the ongoing issues of modern architecture � and one of the story lines that keeps modern architecture interesting after so many false starts and blind alleys � has been the struggle to arrive at a consensus on what exactly is the "right" form for new types of buildings. Imagine the situation of architect and urban planner a century ago. They had never dreamed of a gas station, a drive-in restaurant or a multiplex theater. Here is Henry van Brunt, writing in 1886 (as quoted in A History of Building Types by Nikolaus Pevsner): "The architect, in the course of his career, is called upon to erect buildings for every conceivable purpose, most of them adapted to requirements which have never before arisen in history." He goes on to list some of the then-still-formative building types facing architects during the late 19th Century: "skating-rinks, theatres, exhibition buildings of vast extent, casinos, jails, prisons, municipal buildings, music halls, apartment houses � ." His conclusion is that the design of these newfangled building types, "if they are honestly composed, can have no precedent in architectural history." The difficult process of creating an unprecedented type of building can be witnessed in present-day California in the form of "transit-oriented developments." To make profitable use of land surrounding rail stations, and to bolster transit ridership, transit districts are pushing to develop areas immediately surrounding stations. The design of these places should encourage use of the train. The urban design, therefore, is to be pedestrian-oriented, and this goal dovetails neatly with a primary agenda of the New Urbanism. In the Bay Area, the Metropolitan Transportation Commission calls these projects "transit villages," a name which resonates with both nostalgia and utopia � a wedding of community and technology. The Fruitvale BART Transit Village in Oakland is perhaps the most ambitious such project yet. The plan fairly bristles with progressive thinking. In June, construction will start on a 10.5-acre site where the developers plan 200 apartments, 35,000 square feet of neighborhood-serving retail, a senior center, a new Oakland Public Library branch, a child-care facility with a Headstart program, a day-care facility and an adult health care facility that provides day care for the elderly. The developer is a community-based nonprofit group, the Spanish-Speaking Unity Council, while the MTC provides some funding. As it turns out, it is difficult to design residential communities around train stations. The stations do not want villages built near them, at least not at first. Stations are generally very large pieces of infrastructure that disrupt the regular pattern of streets. Often treated as necessary evils, the stations are located in out-of-the-way places, or in poor neighborhoods. More to the point, train stations are essentially thoroughfares that usher people on and off of trains as efficiently as possible. If stations could talk, they would bellow, undoubtedly in basso profundo voices, things like, "Minimize wasted space! Keep traffic flowing! No soliciting! Step lively!" In other words, talking train stations would sound very much like, well, transportation planners. Residential communities, on the other hand, are destinations. So a tension necessarily arises when building a project that is both a gateway into regional transit, and a quiet, pedestrian-oriented neighborhood built along (some) New Urbanist lines. The need to separate transit-related uses from residential areas informs the Fruitvale site plan, designed by the Orange County architectural firm of McLarand, Vasquez & Partners. Essentially, all the transit and retail is relegated to the west of 35th Avenue, while the residential and retail mixed-use, together with a day-care center and a tot lot, are on the east. South of the residential complex, a shallow sward of green provides a buffer between the apartment buildings and surface parking for BART. This little park is probably a welcome amenity for local residents, even though I am always suspicious of landscaping used as a buffer, rather than a positive space or "outdoor room" unto itself. The most questionable part of the plan, functionally, is the location of the senior center on the far west side, separated from the transit area by another surface parking lot. No doubt, space considerations forced planners to locate the center far from the senior housing area where it would ideally stand. As a composition, the site plan does not seem to jell. Perhaps the master planners have done too good a job of separating housing from commuting. The station area and the apartment buildings seem like a pair of angry spouses, lying in bed, facing away from each other. Somehow, unity and elegance are missing. The major organizing device is a giant, circular plaza that reconciles the skewed angles of surrounding streets. Again, perhaps the job has been done too thoroughly � at least the energy of all those different angles may have contributed to a more exciting plaza. Instead, the giant circle has neutralized all the energy of odd-shaped spaces resulting from non-parallel streets. The retail development that frames the plaza is a letdown as well. The anodyne scheme by this Orange County-based architect wants to bring a bit of Irvine into Oakland, and no doubt the city and the transit agency are happy to have these images of upscale shopping in a working-class neighborhood. The image of a slightly over-designed suburban shopping mall, however, does not accord with my utopian fantasies for Fruitvale. Rather than a large plaza, I would suggest a more urbane design with storefront-lined sidewalks. A row of vertical storefronts would be more in keeping with Oakland than the planned horizontal, slab-like buildings. Still, we must give points to the master planners for solving as many problems as they did in a still-undetermined building type. Like a number of the projects we have discussed in these pages, the Fruitvale Transit Village is interesting or admirable not because it is a masterpiece of architecture or urban planning � it is not � but rather because it wrestles with a difficult problem. We are watching the invention of a new type of urban development, and the birth may not be smooth or forthcoming. For the time being, the transit village is a building type that has not yet fully arrived. Fruitvale is a whistle stop along the way.

Concerned about an apparent increase in interest from apartment developers, the Antelope Valley cities of Lancaster and Palmdale are both moving toward moratoria on multi-family units. Their moves appear to be part of a growing trend among exurban communities to reassess their policies on multi-family construction. In Lancaster, where the City Council adopted a moratorium in January, officials say they will use the moratorium period to examine whether Lancaster has an over-supply of apartment units or an over-concentration of them in low-income neighborhoods. In Palmdale, the City Council adopted a temporary 45-day moratorium in late February and extended the apartment ban by 10 months and 15 days on April 21. However, the state Department of Housing and Community Development appears likely to examine the Lancaster situation — just as it did in a similar situation in Brentwood, a fast-growing city in eastern Contra Costa County. HCD is charged with reviewing and monitoring local housing policy around the state. HCD may examine the Palmdale situation as well. Under state law (Government Code §65858), temporary moratoria are permitted for a period of up to two years with a four-fifths vote of the City Council. Lancaster followed the procedure in the last by adopting a 45-day urgency moratorium in January, followed by a second ordinance extending the moratorium for 10 months and 15 days. The moratorium does not cover projects for senior citizens. Palmdale's initial moratorium followed the same procedure. Brian Ludicke, Lancaster's deputy director of community development, said that no particular apartment proposal had stimulated the moratorium. But he added that apartment construction had been an issue in a recent City Council campaign, which resulted in the election of two new council members. He said that in addition to supply and concentration, the city will examine whether absentee apartment management has created problems for the city. "There are real problems with triplex and four-plex units," he said. "Typically, these used to be managed by an owner living in one of the units. Now we have a lot of absentee landlords." The Lancaster council approved the moratorium over the objections of the Independent Living Center of Southern California, an advocacy group for the disabled. Independent Living Center representatives argued that Lancaster should not limit apartment housing for relatively low-paid workers when, at the same time, the city has provided financial incentives for Michael's and Rite-Aid to build warehouses there. The warehouses are expected to employ more than 1,000 people, many of them in relatively low-wage jobs. Lancaster officials argued that the moratorium is needed because the city is accommodating more apartment construction than either surrounding or comparable cities. In Palmdale, the City Council began to consider a moratorium in late January, when a group of homeowners protested the city's approval of a 200-unit apartment complex for low-income residents. Palmdale Planning Director Laurie Lile said that in imposing the temporary moratorium, the council asked the city staff to examine three issues: the cost of providing services to multi-family projects; the location of vacant multi-family units within the city, and the supply of senior housing in the city. In preparing a report to the council for the April 21 meeting, the staff did not provide a recommendation on whether to extend the moratorium. When extending the ban, the city council exempted the 200-unit project that spurred the initial moratorium. According to the latest figures from the California Department of Finance, 24.3% of all housing units in Lancaster are multi-family units. That figure compares to 16.6% in neighboring Palmdale and 21.1% in the comparable community of Victorville, to the east. However, it's much lower than the figure for the state as a whole (approximately 33%) and for the six-county Southern California Association of Governments region (36%). Since 1990, Lancaster's multi-family stock has risen 17%, while Palmdale's has gone up only 5%. Cathy Creswell, HCD's deputy director for policy, said she knew little about the Lancaster situation but expected that HCD would look into it. However, she compared Lancaster to Brentwood, which imposed an apartment moratorium in 1996 but then worked with HCD to devise a new policy intended to accommodate affordable housing without creating an over-concentration of low-income residents. HCD intervened in Brentwood based on its determination that the moratorium violated the government code, which permits moratoria to protect public health and welfare. Specifically, HCD's lawyers concluded that the Legislature "could not have intended that the existence of an overconcentration of multi-family units, in residential zones where such use is permitted, in and of itself would constitute a threat to the public health, safety, and welfare." Creswell said that if the Lancaster moratorium is based on similar criteria, HCD would probably intervene there as well. The moratorium in Brentwood was stimulated by two apartment proposals by nonprofit developers engaged in low-income housing tax credit deals, according to Winston Rhoades, a planner for the city. Both were in the same part of town, Rhoades said, and the City Council became concerned about an over-concentration of multi-family units. The Brentwood situation quickly attracted the attention of HCD, which reviews and monitors local housing policy throughout the state. In recent years, HCD has encouraged local governments to accommodate affordable housing by "upzoning" properties for apartment development. HCD has also discouraged multi-family moratoria. In Brentwood, the city eventually adopted a "voluntary inclusionary housing" policy encouraging all housing developers to set aside some of their units for families of modest means. The ordinance also encourages a mix of densities by encouraging developers to provide duplexes, similar in appearance, at the entrances to single-family neighborhoods. Rhoades said that since the ordinance went into effect one project has been approved in which the developer agreed to a 10% voluntary setaside. He said the inclusionary requirement could become mandatory in the future. "We're going to be monitoring the issue," he said. Creswell said she was pleased with the Brentwood process. "Where they got to eventually was a good place," she said. According to state figures, only 13.5% of Brentwood's housing units are multi-family units. Contacts: Cathy Creswell, Department of Housing and Community Development, (916) 323-3183. Laurie Lile, City of Palmdale, (661) 267-5211 Brian Ludicke, City of Lancaster, (661) 723-6100. Winston Rhoades, City of Brentwood, (925) 634-6905

General obligations bonds to rehabilitate California's crumbling infrastructure and build new public facilities are rising toward the top of the state Legislature's agenda now that Gov. Davis' education reform package is complete. The bonds, which could start hitting the ballot as soon as next March, would pay for everything from roads and water systems, to parks, libraries and homes. Lawmakers have introduced $30 billion worth of general obligation bond proposals. Some of the proposals compete with one another, and analysts do not expect all bond packages to reach the ballot. However, several of the proposals, including a $16 billion transportation bond, are advancing through committees. New Democratic Treasurer Phil Angelides intends to release a special edition of the annual debt affordability report in mid-May, according to spokeswoman Cathy Calfo. "He will evaluate bond proposals in the context of that report," she said. Rather than set a dollar limit on borrowing, as past debt affordability reports have, the special report will review investment strategies and consider sustainable development patterns, Calfo said. While there is no shortage of people who see the need to "do something" about infrastructure, consensus on financing is absent. The California Business Roundtable recently projected a $33 billion deficit in infrastructure funding during the next 10 years, but that organization and the California Manufacturers Association favor a pay-as-you-go approach embodied in SCA9, by Steve Peace, D-El Cajon. The constitutional amendment would dedicate one-quarter cent of the existing sales tax, or about $1 billion annually, to a new State Infrastructure Fund. The account would finance highways, libraries, schools, water systems, parks and other public structures. The $16 billion transportation infrastructure package, SB 315, by Senate President Pro Tem John Burton, D-San Francisco, would go to voters in $4 billion increments every two years starting in November 2000. The money would rehabilitate highways, help local agencies fix roads and repair storm damage, and provide capital for public transit projects. The money also would go toward "completion of high-priority capital projects of statewide significance." Burton has not yet spelled out these projects and must decide whether to allocate the money for new highways backed by developers and suburban politicians, or public transit projects that are popular with environmentalists and big city leaders. California ranks 48th nationally in highway spending, according to Burton's office. Other bond proposals Behind the transportation package, the second-largest bond is the $4.1 billion proposal for prisons and jails. The bond, which would go to voters in March 2000, would build six new state prisons and provide matching funds for construction and rehabilitation of local jails and juvenile halls. The California State Association of Counties is among the supporters of AB 326, by Assemblyman Bill Leonard, R-Rancho Cucamonga. Of interest to planners and housing advocates are two housing bonds — a $980 million package that would go to voters in four increments, and a separate $750 million proposal. The first proposal, SB 510, by Sen. Richard Alarcon, D-Los Angeles, breaks down this way: $260 million for first-time homebuyer down payment assistance, $200 million for senior and disabled rental housing, $200 million for housing rehabilitation, preservation and code enforcement, and the remainder for rentals, farmworker housing, welfare-to-work housing and sweat-equity projects. The latter measure, AB 398 by Assemblywoman Carole Migden, D-S.F., earmarks the bulk of funds, $550 million, for rental housing construction and rehabilitation. The rest would go for home purchase assistance and farmworker housing. California voters have not approved a housing bond since 1991, and that money was spent by the end of 1996, said Howard Yee, a consultant to the Senate Housing and Land Use Committee. At the same time, the state has become even more of a last-resort for housing programs. "With federal funding shrinking and local agencies having limited money, there is nowhere else to go," Yee said. Environmentalists have cheered three proposals to issue bonds for parkland purchases and natural resource protection. The $2 billion plan from Sen. Tom Hayden, D-Santa Monica, would provide $500 million for state parks, $500 million for local and regional parks, $460 million for open space and habitat, $440 million for fish and wildlife, and coastal projects, and $100 million for zoos, aquariums and environmental education. Six state land conservancies, some of which hurt for money (see CP&DR April 1999), would get about $390 million from Hayden's plan, SB 57. A November 2000 election is proposed. Assembly Speaker Antonio Villaraigosa, D-Los Angeles, introduced a $1.5 billion bond for the March 2000. The measure, AB 18, targets parkland as well as natural, cultural and historical resources. It contains about $300 million for state land conservancies. Senate Bill 2, by Wesley Chesbro, D-Arcata, is an $854 million park and resource improvement bond. Other legislation Because of term limits, the Legislature is full of new members, many of whom were recently city councilmembers or county supervisors. Because of their local government experience, many of them have introduced bills related to land use issues, said Sande George, lobbyist for the California Chapter of the American Planning Association. "They all had a pet peeve when they were sitting in the council meetings or the board chambers, and now they want to do something about it," George said. The CCAPA's list of the top 10 planning bills actually contains 100 measures. Among the planning proposals receiving attention is a trio of bills that would more closely link water supply with development decisions. After meeting stiff resistance from developers and the real estate community, the authors have put their legislation on hold until next year. The biggest change is embodied in AB 1219, by Assemblywoman Sheila Kuehl, D-Santa Monica. It would require a city or county to reject a proposed development if the local water agency said it could not serve the development. The CCAPA supports the water supply-land use link, but this provision "constitutes a major shift in land use planning law from the city and county to the water agency," CCAPA Vice President Ted Commerdinger wrote to Kuehl. "A no-growth water agency could cause havoc in a quickly growing jurisdiction on a project-by-project basis." East Bay Municipal Utility District sponsored AB 1219 and two related bills, SB 1130, by Sen. Jim Costa, D-Fresno, and AB 1277, by Assemblyman Helen Thomson, D-Davis. The Costa bill would close loopholes in his 1995 legislation (SB 901) by requiring the Department of Water Resources to prepare a water supply assessment for large developments if the local agency refused or if an environmental impact report does not identify a water system. The Thomson bill would require a Local Agency Formation Commission to determine whether water supplies are adequate before approving an annexation. According to East Bay MUD lobbyist Randele Kanouse, only 4 of 57 environmental impact reports for projects of 500 homes or more have complied with SB 901's mandate to link water sources and land use planning. However, a fifth consecutive wet year made for a tough sell, he said. "This isn't about slowing down growth, this is about developers paying their own way," Kanouse said. The California Association of Realtors, California Building Industry Association and California Chamber of Commerce opposed the water and land use bills. "It comes down to not wanting to give the water agency, who isn't elected for this purpose, authority over local land use," said Eileen Reynolds, a lobbyist for the Association of Realtors. "We don't want developments to go on line if there is no water to go to them." Proposed CEQA changes A bill that would make significant changes to CEQA is SB 755 by Hayden, who contends a portion of the bill simply codifies recent court decisions and administrative guidelines. The bill would preclude a city or county from considering an increase in revenues when approving a development in spite of significant environmental impacts, according to a Senate Committee on Environmental Quality analysis. The bill also would require a city or county to approve a master EIR prior to, or concurrent with, approval of any phase of a project. The master EIR could be used for five years. Environmental justice advocates have reintroduced legislation similar to measures Pete Wilson vetoed. Among this year's bills is SB 115, by Sen. Hilda Solis, D-El Monte, It would place a number of requirements on the Office of Planning and Development, which would have to identify communities disproportionately affected by high and adverse environmental effects, according to an analysis. The bill also calls for changes to CEQA guidelines so that cities and counties mitigate disproportionate environmental impacts in poor or minority neighborhoods. Contacts: Howard Yee, Senate Housing and Land Use Committee, (916) 445-8740. Randele Kanouse, East Bay Municipal Utility District, (916) 443-6948. Eileen Reynolds, California Association of Realtors, (916) 444-2045. Sande George, California Chapter of the American Planning Association, (916) 443-5301. CCAPA, www.calapa.org. Randy Pestor, Senate Committee on Environmental Quality, (916) 324-0894.

They raise the ire of homeowners and merchants, councilmembers and supervisors, police chiefs and chamber of commerce leaders. They are seen as blights on a town, attractions for the wrong element. They should be run out of town, is the common sentiment. But they — adult theaters, video shops and bookstores — engage in constitutionally protected free speech, and local governments regulate these 18-and-over businesses at their own peril. In fact, the practice of determining where adult-oriented busines... They raise the ire of homeowners and merchants, councilmembers and supervisors, police chiefs and chamber of commerce leaders. They are seen as blights on a town, attractions for the wrong element. They should be run out of town, is the common sentiment. But they — adult theaters, video shops and bookstores — engage in constitutionally protected free speech, and local governments regulate these 18-and-over businesses at their own peril. In fact, the practice of determining where adult-oriented businesses locate, and how they operate, seems to get trickier all the time. Case law continues to evolve, but not in the most consistent manner, say attorneys who follow the issues. "Under current interpretations of the law, every city has to have areas for these businesses," said Robert Hargreaves, of Best, Best & Krieger in Rancho Mirage. "For a small, primarily residential city, that can really be a problem." According to Joseph DiMento, a planning and law professor at the University of California, Irvine, cities regulate adult businesses for two reasons: to control the potential secondary effects of such businesses (namely, prostitution) and to maintain a community's morality. The first reason is a proper use of the government's police power, while the second reason probably is improper, DiMento said. But citizens and elected officials often link the two reasons when pressing to shutter an adult theater or to prevent one from opening. Furthermore, members of the general public who disapprove of adult businesses often do not understand that these businesses engage in a form of speech that courts have continually protected, DiMento said. A line of court cases — many stemming from U.S. Supreme Court rulings in Young v. American Mini Theatres Inc. (1976) 427 U.S. 50, City of Renton v. Playtime Theatres Inc., (1986) 475 U.S. 41, and Barnes v. Glen Theatre, (1991) 501, U.S. 560 — addresses how and why cities may regulate adult businesses. Much recent litigation can be divided into three areas: regulation of where adult businesses may locate, cities foot-dragging when dealing with adult business applications, and regulation of activities in live theaters. Where To Go? Courts have made clear that if a city wants to regulate protected speech, including non-obscene topless dancing, the city must provide for "alternative avenues of communication." In other words, a city must zone some sites for adult businesses and cannot prohibit all activities inside theaters. But there is no magic formula to determine if planners have set aside enough sites for adult businesses, said Jeff Goldfarb, a lawyer with Rutan & Tucker who successfully defended Newport Beach's adult business ordinances. (See CP&DR February 1999.) "From a theoretical standpoint, it would seem you only have to provide one space if you have one business that wants to come in," Goldfarb said. "But in reality, it's unclear where the courts are going in this area, and I advise my clients that the city should zone a number of sites for adult business use." Hargreaves, a municipal lawyer with Best, Best & Krieger, agreed "there is no formula you can plug in." In general, adult businesses must have the same opportunity as any other business to locate in a city, he said. Designating as your adult business zone a piece of unimproved property where the nearest street is half a mile away raises the question of whether the property is truly "available," he said. In Levi v. Ontario, CV 96-7559 SVW, a case from the U.S. District Court's Central District of California, Judge Stephan V. Wilson wrote, "Property is not part of the relevant market if it lacks a proper infrastructure, such as roads, lighting, water or sewer service. Nor does the relevant market include property that is physically incompatible with commercial enterprise, such as a warehouse, a sewage treatment plant, a swamp, a shipyard or an airport runway." Ontario restricted adult businesses to parcels of at least one acre, in an industrial zone, off major arterial roads, and certain distances from schools, homes and other adult businesses. The city argued that it had 25 sites available. Under the 1992 law, the city's two adult businesses had to relocate to one of these sites. Judge Wilson threw out Ontario's law because he determined only one site was truly available. He disregarded seven sites because they needed to be subdivided, and four contiguous parcels because they were "partially developed in a manner inconsistent with commercial use." For various reasons, he disregarded 13 other sites, including some large, unimproved parcels. "At a minimum, there must be more sites available than existing businesses with a demand for them," Wilson wrote. Through their zoning codes, many cities regulate adults businesses by requiring those merchants to locate in certain zones (often industrial) and by mandating distance buffers from sensitive uses, such as schools, churches and homes. This practice often places topless "juice bars" and the like in warehouse districts. The City of Santa Rosa is employing a different tactic. City planners have crafted an ordinance that would require an adult business to locate in one of the town's three main shopping malls. "The managers of those shopping centers have said they wouldn't rent to any of those businesses," Community Development Director Wayne Goldberg said. "They all said it would not be in their best business interest." This is exactly what city officials wanted to hear. The proposed ordinance places the onus for blocking adult businesses on the private marketplace. The proposal would also allow adult businesses in one semi-industrial district far from homes or other retail stores, Goldberg said. But even typical zoning and distance restrictions can prove difficult to defend in court. In a recent unpublished case, People v. Manta Management Corp., No. E019635, from the Fourth District Court of Appeal, Division Two, the court upheld a Superior Court ruling that the City of San Bernardino's adult business regulations were too restrictive. "The court reasoned that the combined effect of limiting adult cabarets to industrial areas while at the same time requiring that adult businesses be separated by at least 2,000 feet unreasonably restricted the number of alternative sites," Justice Art McKinster wrote for the unanimous three-judge panel. "The court also determined that the restriction of a commercial enterprise such as a nightclub solely to industrial areas was an unreasonable restriction." The appellate court found no reason to disagree. It also affirmed the trial court judge's ruling that the city failed to prove its ordinance furthered a substantial government interest. San Bernardino in March asked the California Supreme Court to take the case. Roger Jon Diamond, the Santa Monica attorney who won both Levi and Manta, predicted the U.S. Supreme Court at some point will take a case that deals with the number and availability of sites for adult businesses. "There is no definite answer on how much is enough and what is too little," Diamond said. Fast Answers Are Mandatory The issue of municipalities providing quick resolution to adult business applications has become important in recent litigation. U.S. District Judge William B. Shubb in December threw out Citrus Height's ordinance requiring a special adult business permit because the law contained no provisions for prompt judicial review if the city rejected an application. The City Council in February adopted an urgency ordinance, under which adult entertainment applicants receive a temporary license until the city decides on the application. If the city denies the application, the temporary license remains in effect until a judge rules, said City Attorney Ruthann Ziegler, of Kronick, Moskovitz, Tiedemann & Girard. In Baby Tam & Co. v. City of Las Vegas, (1998) 154 F.2d 1097, the Ninth District Court of Appeals said rapid judicial review and determination are necessary in adult entertainment cases. The decision diminished some cities' strategy of dragging adult business license applications through a convoluted, and sometimes changing, process. In response to Baby Tam, several attorneys working with the League of California Cities crafted SB 1165. The legislation, introduced by Sen. Byron Sher, D-Palo Alto, would require judges to decide within 60 days on challenges to issuance, denial or revocation of an adult business permit. Controlling The Action Regulating exactly what happens in an adult theater is yet another area where some jurisdictions have struggled. Newport Beach prohibits touching and nude dancing. The city's "pasties and g-string ordinance" was upheld in the recent cases of Tily B. Inc. v. City of Newport Beach, Nos. G016950 and G109250, and City of Newport Beach v. An Nguyen, No. G022132, 99 C.D.O.S. 62. The city relied heavily on the U.S. Supreme Court's ruling in Barnes, explained Goldfarb, the city's lawyer. Three separate opinions made up the Barnes majority. One said a city may restrict nudity to protect public morals, one said the restriction is allowable because nudity is not speech, and one said the restriction is permissible because it relates to secondary effects, Goldfarb explained. The opinion regarding secondary effects provides the precedent, he said. The city was able to prove that prostitution-type activity — a secondary effect — was occurring at a club the city wanted closed, he said. Contacts: Jeff Goldfarb, attorney, Rutan & Tucker, (714) 641-3488. Robert Hargreaves, attorney, Best, Best & Krieger, (760) 568-2611. Ruthann Ziegler, attorney, Kronick, Moskovitz, Tiedemann & Girard, (916) 321-4500. Wayne Goldberg, director, Santa Rosa Community Development Department, (707) 543-3222. Roger Jon Diamond, attorney, (310) 399-3259.

We have grown suspicious of simplicity. We late 20th Century folk have come to equate complexity with competence. We tend to give the benefit of the doubt to things that have been over-intellectualized, over-wrought and over-papered. We want massive documents with hundreds of appendices that only consultants can read and interpret for us. The trend has given rise to a kind of info-snobbery: If a non-expert offers us an opinion, we tend to give it less weight than if a specialist weighs in on the same matter. Often, however, our suspicion of simplicity may not be well founded, nor is it fair to assume that simplicity necessarily means a lack of sophistication. It would be wrong to characterize the agreement between the Southern California International Airport Authority and Orange County-based Stirling Enterprises LLC as simple. It's hardly an IOU scrawled on the back of a napkin. At the same time, this very straightforward agreement can be read, and understood, by non-experts in about half an hour. That is impressive when you realize this document is essentially the working agreement between a public joint-powers authority and a private developer guiding the 20-year redevelopment of a 4,000-acre airport. In comparison, a typical lease in a big-city office building is usually a document that can be several inches thick. And then you have to pay somebody $300 an hour to read this thing and explain it to you. The comparison to the office lease, of course, is inappropriate in at least one way: the relationship between landlord and tenant is adversarial, while the developer and the Victor Valley communities seem to have a common goal. The desire to get something going at the former George Air Force Base is probably foremost in the minds of the municipalities that make up the Southern California International Airport Authority — the County of San Bernardino, the Town of Apple Valley, and the cities of Victorville and Hesperia. The airport authority is an alter ego of the Victor Valley Economic Development Authority, the official local agency for base closure. When the base closed in 1992, the region lost 6,000 jobs. Located in the desert about one-third of the way from Los Angeles to Las Vegas, the former military base may not look like a hot property (except in solar terms). But both the local officials and the developers are convinced that the area could become the next important air-cargo hub of Southern California. They make a good sales pitch: the region is already well-served by infrastructure, including Interstate 15 and the Burlington Northern and Southern Pacific rail lines; an eastward extension of the Alameda Corridor, a partially below-surface rail line to the harbor area of Los Angeles-Long Beach that is now under construction, would create a crucial link to the ports. The capacity for cargo at Los Angeles International Airport is fast filling up. Based on a rule of thumb that says truckers need to be within 18 hours of a destination, the area now known as Southern California International Airport could deliver goods to all western states and Mexico. Optimistically, but not unreasonably, local officials think the cargo airfield could more than replace the lost military base jobs. Both the developer and local authorities seem eager to start as soon as possible and signed the agreement in January. In a nutshell, here are the basic deal points: The public airport authority agrees to pay $40 million in infrastructure costs, which will be funded by bonds (which kind are not specified in the document). Tax-increment revenues on the base will pay off the bonds. (Special legislation granted military bases redevelopment powers.) Stirling agrees to provide the remainder of the infrastructure; the cost is not stated in the document but is estimated to be $70 million. The developer also agrees to buy a set of parcels, totaling 325 acres, for $28 million. These are the so-called Economic Development Conveyance parcels, which the Air Force has agreed to sell to the local reuse authority. Half of the income that the developer receives from property sales or leases on the base will automatically go into a "Land Pay Down Fund" until the obligation is met. The developer also has the right to lease the so-called Public Benefit Transfer parcels, which the military is not selling at this time. Additionally, both sides are to contribute $3.5 million to pay off a $7 million bond issue from 1996 that financed initial redevelopment costs at the base. Presumably, this goal will be accomplished through a refinance. After all other obligations and operating expenses are met, the two sides share income from projects on a 50-50 basis. The developer has the responsibility of marketing, managing and developing the property, but the airport authority also has the right to bring in potential tenants or investors, with the approval of the other party. The agreement is for 10 years, although either party can cancel the agreement at any time during the first year. The agreement can be renewed for two additional five-year terms. The framers of the agreement acknowledge its directness. Lawyer Andre de Bortnowsky, a partner in the Calabasas office of Sabo & Green, whom the airport authority retained to draft the agreement, said he reviewed several different master-developer agreements used by other former bases but chose to "essentially start from scratch." He characterized the agreement as flexible: "Philosophically, we are trying to accommodate or foresee changes. The agreement outlines the relationship and general obligations between the parties, and, at the same time, it also contemplates a need for additional agreements and fine tuning as the project goes along." Developer Dougall Agan, a principal in the land development firm of Stirling, put it more simply. "It's the KISS principle," he said, referring to the familiar acronym for Keep It Simple, Stupid. What was most notable was the balance of both responsibility and profit on the part of both parties. "It's the same thing as a good marriage," he said. "It has to be 50-50." Since the arrangement between the airport authority and the developer is in its infancy, it is obviously too soon to determine whether the agreement is a success or not. Still, it seems to represent an intriguing approach in framing a document that the general public can understand and comment on. The late jazz musician Dizzy Gillespie once said the quality of music depends on knowing which notes not to play. In other words, true sophistication consists in not saying everything. It would be interesting to see if such a straightforward agreement turns out to be workable. In an age of overkill, it is refreshing to see a document that knows when to shut up.

Loretta Lynch, a San Francisco lawyer with solid Democratic credentials, is the new Office of Planning and Research director. Gov. Gray Davis in mid-March named Lynch to the top job at OPR, which provides technical assistance to local planners and runs the State Clearinghouse for project review. The 37-year-old Lynch has been a partner in Keker & Van Nest since 1991, where she represented small and large companies in securities trading matters. Lynch is a graduate of University of Southern California and earned her juris doctor from Yale. She clerked for U.S. Court of Appeals Judge Dorothy Wright Nelson. Prior to attending law school, Lynch was a legislative aid to Assemblyman Johan Klehs. Lynch "developed research strategies, policy and issue positions" for the campaigns of President Clinton, Sen. Dianne Feinstein and Superintendent of Public Instruction Delaine Eastin, according to the governor's office. While the top post at OPR is now filled, the governor has not replaced Terry Rivasplata, who has joined Jones & Stokes Associates of Sacramento as a senior environmental planner. Rivasplata for 14 years managed the Planning and State Clearinghouse Unit and worked closely with local governments. Senior Planner Terry Roberts, who came to OPR in February from the West Sacramento Community Development Department, is in charge of the understaffed unit on an interim basis. "Everybody who was here before is gone, with the exception of one clerk who is handling the State Clearinghouse paperwork," Roberts said in mid-March. In his new position with Jones & Stokes, Rivasplata will provide technical expertise regarding the California Environmental Quality Act, general plans, environmental analyses, and local and regional planning to local government and private-sector clients.

L.A. may have multiple planning commissions An overhaul of the Los Angeles City Charter, which will go before voters June 13, calls for creation of at least five area planning commissions. But those area commissions would have limited powers, and the citywide Planning Commission would remain in place, under the proposal. "The citywide Planning Commission is seen as a body that's not very closely related to the people," Jackie DuPont-Walker, chairwoman of the Elected Charter Reform Commission said. "I think the area planning commissions provide an opportunity for decisions to be made closer to home by people who are stakeholders." DuPont-Walker made those comments to the Commission on Local Governance for the 21st Century during a recent hearing in Los Angeles. She and George Kieffer, chairman of the Appointed Charter Reform Commission, explained the proposed charter during the hearing. The two charter reform commissions, which were not always friendly, in February settled on one recommendation. Kieffer said multiple planning commissions make sense because of Los Angeles's size — nearly 4 million people spread over 465 square miles. No one from San Pedro can understand the community of Chatsworth, 50 miles north but still within the L.A. city limits, he said. However, the area planning commissions, which the City Council and mayor would appoint, have limited authority, under the proposed charter. Area commissions would have jurisdiction over conditional use permits, variances and zoning administrator appeals. The citywide Planning Commission would decide on projects that require both quasi-judicial and legislative actions. The proposed charter allows the City Council, planning director and citywide Planning Commission — but not area commissions — to initiate zoning changes and general plan amendments. Area commissions could comment on proposed zoning changes and general plan amendments only at the citywide Planning Commission's request. The charter does allow the citywide Planning Commission, with City Council approval, to delegate authority over "projects determined not to have citywide impact" to an area commission. The City Council would pick the number on area commissions, but there must be at least five. The council would draw area commission boundaries for the whole city, and members of the five-person panels must live within those boundaries. The proposed charter also creates a Department of Neighborhood Empowerment, which ought to give residents and business owners more input regarding development and other neighborhood matters, Kieffer said. The proposed charter may be downloaded from www.lacharter.com.

A county considering the environmental impact of a proposal to expand a mine may use full-capacity operation of the existing facility as the environmental "baseline" even if the facility is operating at less than full capacity, the Second District Court of Appeal has ruled. The court found that in preparing an environmental impact report, Ventura County could assume that a mining operation outside Moorpark is generating 810 truck trips per day — the maximum number of truck trips that would be generate... A county considering the environmental impact of a proposal to expand a mine may use full-capacity operation of the existing facility as the environmental "baseline" even if the facility is operating at less than full capacity, the Second District Court of Appeal has ruled. The court found that in preparing an environmental impact report, Ventura County could assume that a mining operation outside Moorpark is generating 810 truck trips per day — the maximum number of truck trips that would be generated by the existing mine's peak operations. Environmentalists who challenged the expansion project argued that the county should use a lower number, because the 1976 EIR for the original mining operation assumed only 120 truck trips per day and actual operations have averaged approximately 400 truck trips per day in recent years. The court further concluded that because the project under consideration was merely the expansion of an existing use, it probably did not even require a full new EIR but rather merely a supplemental or tiered EIR. The appellate court also concluded that EIR's requirement for future analysis does not violate the so-called Sunstrom rule if the county determines that the project will create significant unmitigable impacts even after the future mitigation is determined, the appellate court ruled. The case began when Transit Mixed Concrete Co. applied for a conditional use permit to expand an existing sand mining operation in a rural area near Moorpark. The mine provides construction materials for use within the county. A previous CUP permitted Transit to operate the mine at a production level that correlates to the creation of 810 truck trips per day — though the CUP imposed no limit on the number of truck trips and the original EIR assumed that only about 120 truck trips per day would be generated. Although the site already contains plants to make concrete batch, road base, and mortar, Transit sought approval to construct an asphalt batch plant on site as well. The county issued a draft EIR in 1991 and spent the next five years circulating and revising it before certifying the EIR and approving the project, including the asphalt batch plant, in 1996. The EIR certification included a statement of overriding consideration because air, noise, and biological impacts were deemed significant and unmitigable. After approving the project, the county was sued by a citizen group, Fairview Neighbors, which contended that the asphalt batch plant was inconsistent with the county general plan and that the EIR was inadequate. Ventura County Superior Court Judge Roland N. Purnell denied Fairview's petition for a writ of mandate, and Fairview appealed to the Second District, Division Six. Fairview challenged the EIR by arguing, among other things, that the document should have been based on an existing setting reflecting the actual number of truck trips, not the theoretical maximum of 810. In the appellate panel's opinion, Justice Stephen Stone, who recently retired as presiding justice of Division Two, disagreed. Stone concluded that a new EIR probably was not even needed because this was the expansion of an existing facility. He also said it was arguable that the project was categorically exempt from CEQA for the same reason. He noted that, in one peak year, the mine had generated an average of 837 truck trips per day. Fairview argued that the document improperly subjected Transit to additional mitigation measures to be determined by a future study. Such requirements were struck down in the well-known case of Sunstrom v. County of Mendocino, 202 Cal.App.3d 296 (1988). The Sunstrom rule prohibits lead agencies from requiring unspecified mitigation based on future studies. The appellate court rejected Fairview's argument. The court ruled that a county may properly issue a statement of overriding considerations if there is no way to mitigate the impacts below a level of significance. The Second District also ruled that the construction of an asphalt batch plant in a rural area where the Ventura County general plan permits mining does not violate the general plan. And the appellate court affirmed a lower court ruling upholding the county's EIR against several other lines of attack. In the appellate panel's ruling, Stone distinguished the Transit situation from Sunstrom. In Sunstrom, the county had "deferred environmental assessment to a future date after approval of the project," Stone wrote. "That is not what occurred here. Here the EIR explains what the environmental impacts would be, and it concludes that the impacts would be significant and unmitigable regardless of the proposed mitigation measures or future studies. Under such circumstances, the board may adopt a statement of overriding considerations and approve the project." Fairview also challenged the EIR on the grounds that the air quality impacts were based on "illusory" traffic estimates and that the Board of Supervisors should have required mitigation for air quality impacts. Regarding the air quality impacts, the appellate court concluded that the county acted properly. Fairview argued that Transit should have been required to participate in any future assessment district designed to alleviate air pollution from truck traffic in the area. The appellate court accepted the county's conclusion that air quality impacts would have been significant and unmitigable even if such a requirement had been imposed. The court also concluded that the EIR adequately examined cumulative impacts. Fairview claimed that the cumulative impact section of the EIR simply stated the obvious point that more development will destroy resources, and argued that the EIR should have been more comprehensive and specific regarding cumulative impacts. The court ruled that the county had adequately analyzed cumulative impacts by writing "a separate, lengthy section of the EIR" supported by an eight-page appendix describing related projects and their impacts. Fairview contended that both the asphalt and cement manufacturing plants are inconsistent with the site's general plan designation. Under the general plan, most of the property is designated for open space with a mineral resource protection overlay that permits mining and "incidental" uses, such as crushing, batching, and recycling of concrete and asphalt. Fairview argued that under the county's general plan, manufacturing is permitted only in light or heavy industrial zones. But the Second District disagreed. The county general plan "provides some examples of permitted uses, including concrete manufacturing," Stone wrote. "On its face permits batching and concrete products manufacturing, provided on-site materials are used in the process." Stone noted that sand mined on-site constitutes 90% of the weight of the materials manufactured. The Case: Fairview Neighbors, v. County of Ventura, No. B120456, 99 Daily Journal D.A.R. 1805, 99 C.D.O.S. 1465 (issued January 28, 1999, with modifications ordered February 24, 1999). The Lawyers: For Fairview Neighbors: Kate Neiswender, (805) 639-0035. For Ventura County: Steven W. Weston, McClintock, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, (213) 623-2322.