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Completing the subdivision application process twice, and having the project rejected both times, does not qualify as an exhaustion of the administrative process, The First District Court of Appeal as ruled. In a case from the Town of Ross, a unanimous three-judge panel said a landowner's taking claim was not ripe because the landowner had not used up all administrative remedies. The court also said the "futility exception" was not available because the landowner had filed only two applications, both for five-lot subdivisions. "The problem in this case lies, as previously stated, in the fact that (the landowner) has not explored either a reduction in size, scope or intensity of the proposed development," Justice Ignazio J. Ruvolo wrote. The landowner's contention that the town would reject any development application "derives from nothing more than ‘speculation, conjecture, imagination or guess work' and is insufficient to raise a triable issue of fact (O'Neil v. Drake (1985) 169 Cal.App.3d 1038, 1044)." The court also ruled the city did not abuse its discretion, and the court rejected the landowner's argument that the city was estopped from denying the application because the landowner lacked any project approval. The California Supreme Court in late February ordered the publishing of the appellate ruling, which was filed October 30, 1998. This was not the first time this controversy has reached the Court of Appeal. Four years ago, the court in an unpublished case also found the city had not abused its discretion in denying a proposed subdivision because the Town Council determined the development was inconsistent with the general plan (Berg v. Town of Ross (Feb. 24, 1995) A057967 ). In February 1989, Susanna Toigo, H. Skip Berg and Brenda Berg (collectively known as Toigo) purchased 36.5 acres of undeveloped property in Ross for $1.75 million. The steeply sloped property has many oak trees, extensive native vegetation and rock outcroppings, and it provides wildlife habitat. The city's general plan designated it as "very low density" and it was zoned residential with 5-acre minimum lot sizes. After losing its first round with the city, Toigo submitted a revised five-lot subdivision application on September 24, 1994. The city said the application and a revision submitted on April 17, 1995 were incomplete. The city deemed the application complete on June 15, 1995. In a staff report, city planners said the new application contained a different lot design and different road access, but planners called the environmental impacts "substantially more severe" than those associated with the subdivision in the 1990 application. The Town Council in August 1995 unanimously denied the project. In a lawsuit, Toigo challenged the denial on numerous grounds, including the estoppel theory, under which the city would be precluded from denying the project because of earlier endorsements from city officials. Toigo filed an administrative mandamus claim alleging the town prejudicially abused its discretion. The city successfully demurred to Toiga's estoppel claim and on March 18, 1997, received summary judgement that disposed of the entire matter. The city won again when the appellate court affirmed the decision of Marin County Superior Court Judge Gary Thomas. Toigo argued that even though the city had not made an absolute final decision on what could be built on the property, the takings claim was ripe under the futility exception. In a declaration, project engineer John Stuber said submitting a revised application was futile because the manner in which the city rejected the latest application made clear the city would not allow any residential development on the site. Judge Thomas granted the city summary judgement on the issue because Stuber offered only speculation. The appellate court agreed. "When closely examined, the critical portions of Stuber's declaration constitute little more than unsupported conclusions and opinions and do not constitute the competent factual proof required to raise an issue of material fact on summary judgement," the court wrote. The town's refusal to permit one use is not a refusal to permit all uses, the court said. Even the town's rezoning of the site in December 1995 — to require 10-acre minimum lot sizes — does not prevent all economically viable use of the property, the court ruled. The city did not abuse it discretion in denying the subdivision application because the Town Council supported its decision with 38 pages of findings, the court wrote. "The findings methodically detail how Toigo's proposal conflicted with distinct provisions of the Ross general plan," the court wrote. "For example, the findings pointed out that the proposed improvements — which would require a cut of 12,500 cubic yards of earth, substantial tree removal, and an extensive network of retaining walls — are inconsistent with the general plan policies requiring the protection of natural resources, the environment, open space and community character." As for the estoppel claim, the court noted "that Toigo faces daunting odds in establishing estoppel against a government entity in a land use case." The landowners said they redesigned the subdivision with clustered building sites because the city had earlier endorsed a clustering alternative. However, the trial judge rejected this argument because the town made "general statements endorsing the concept" of a clustered alternative. Moreover, the latest Toigo proposal was different from the clustered alternative the town discussed. The appellate court again supported the trial judge's ruling and said the landowners needed to be much farther along in the approval process before they could argue estoppel. "Courts have yet to extend the vested rights or estoppel theory to instances where a developer lacks a building permit or the functional equivalent, regardless of the property owner's detrimental reliance on local government actions and regardless of how many other land use and other preliminary approvals have been granted," the court wrote. The Case: Susanna Toigo v. Town of Ross, No. A078486, 99 Daily Journal D.A.R. 1829, 99 C.D.O.S. 1455 (filed October 30, 1998, ordered published February 24, 1999). The Lawyers: For Toigo: Clayton E. Clement, Clement, Fitzpatrick & Kenworthy, (707) 523-1181. For Town of Ross: Fran M. Layton, Shulte, Mihaly & Weinberger, (415) 552-7272.

Carson's mobile home rent control board acted properly in granting a mobile home park owner a rent increase of only $58 per month rather than the $160-170 that the park owner requested, the Second District Court of Appeal has ruled. The court also ruled that the city's formula for granting rent increases is constitutional even though it is vague. The city board reduced the rent increase by determining that the mobile home park should amortize the cost of remediating contaminated wetlands over three years, rather than just one year. The board also denied the park owners' request to include in the rent increase the cost of attorney fees incurred in seeking to recover the cost of the remediation from oil companies and other parties — including the city itself. The case involved the Carson Harbor Village Mobilehome Park, described by the appellate court as an "upscale" mobile home park with 420 spaces on 70 acres. Of the 420 spaces, 407 are subject to Carson's mobile home rent control laws because they were completed before 1995. As with most mobile home parks, the "owner" is the investment company that owns the land, while the "tenants" are the residents, who own their mobile home "coach" but rent the land underneath it from the landowner. In 1995, Carson Harbor Village Ltd. filed a request for rent increases on the 407 controlled spaces ranging between $163 and $178 per month. Between the time the request was filed and the time the city's rent control board actually heard the case 18 months later, the rent board's staff issued three staff reports. Each one proposed a lower rent increase than the previous one. The first recommended a $99 rent increase, the second proposed a $76 rent increase, and the final one — adopted by the board — recommended a $58 rent increase. These changes came about largely because of the staff's unwillingness to permit the park owner to charge higher rents to cover the cost of the attorney fees. The park owner sued, claiming that the rent board had abused its discretion in granting the lower rent increase. Unlike many mobile home rent control cases, the park owner did not challenge the constitutionality of the rent control ordinance but rather disputed the way it was applied by the board. Los Angeles Superior Court Judge David Yaffe ruled in favor of the rent board and the Second District, Division Seven, affirmed his ruling. On appeal, the Second District did declare that Carson's formula for granting increases is constitutional. The court acknowledged that the ordinance "offers little assistance in clarifying the definition of a ‘just, fair and reasonable' return," which is the legal requirement contained in the ordinance. The court ruled that it must defer to the rent board's interpretation "unless we find its construction lacks substantial evidence to support its findings." On both the wetlands remediation and the attorney fees, the court found that there is indeed substantial evidence to support the board's decision. The wetlands remediation cost the park owners $190,000, which they paid for out of the proceeds of a $300,000 third trust deed loan payable over 28 months. The park owner then submitted the entire $190,000 to the rent board as a 1995 operating expense. The board chose instead to allocate the expense over three years on a pro-rated basis to reflect the 28-month mortgage. The park owner argued in court that this was an abuse of discretion because an expense incurred during 1995 had not been permitted as an expense in that same year. But the court agreed with the rent board's interpretation. "Allocating the cost, paid out of loan proceeds, to a single year, would understate the 1995 gross profit figure and artificially inflate CHV's need for a monthly rental increase," the court wrote. "A permanent, artificially high monthly rent increase would permit CHVB to realize unwarranted profits from increases long after repayment of the loan obligation incurred to remediate the wetlands contamination." The park owner had also claimed the rent board abused its discretion by disallowing $100,000 of the park owner's $208,000 in attorney fees. The park owners had sought to recover the cost of remediation from Unocal, Caltrans, and others, including the City of Carson itself. The board also disallowed fees incurred in seeking to recover cleanup costs from insurers. The board did permit inclusion in the rent increase of attorney fees incurred in obtaining regulatory approval for the remediation plan from the Regional Water Quality Control Board. The city's rent control guidelines cover mostly the question of whether to pass along the cost of attorney fees associated with dealing with the rent board itself. The cost of seeking rent increases is permitted; the cost of challenging the rent control ordinance is not permitted. The ordinance is silent on the question of environmental remediation. Nevertheless, the Second District concluded that the board deliberated carefully and "did not regard suits against other parties to recover legal expenses associated with wetlands remediation project as directly related to regular park operations." The appellate court added: "A court should not substitute its judgment for that of the local mobilehome rent control board even though the court may arrive at different findings of fact after hearing the case on its merits." The Case: Carson Harbor Village Ltd. v. City of Carson Mobilehome Park Rental Review Board, No. B118282, 99 Daily Journal D.A.R. 1797, 99 C.D.O.S. 1461 (filed February 24, 1999). The Lawyers: For Carson Harbor Village: Frank Gooch III, Gilchrist & Rutter, (310) 394-5492. For City of Carson: Glen R. Watson, Richards, Watson & Gershon, (213) 626-8484.

Alternate members of a Local Agency Formation Commission, when not serving in the place of regular members, may participate in public hearings and deliberations, but they may not attend closed sessions, according to a state Attorney General's opinion. The opinion should lead to a standardization of practices for the 57 LAFCOs in California, said Mike Gotch, executive director of the California Association of Local Agency Formation Commissions. In fact, Gotch was the one who raised the issue of participation by LAFCO alternates. Gotch — a former Assemblyman and San Diego LAFCO executive officer — is the alternate public member of the Napa County LAFCO. The Napa County Counsel's office had said alternate members, when not replacing absent regular members, should not participate in public hearings or attend closed sessions. County counsel later modified its stance to allow alternates to participate until the close of the public hearing. Gotch said other jurisdictions where he had worked encouraged alternate members to be at all meetings, whether or not the regular member was present. But, he said, "In my CalLAFCO travels, I've found that there is no consistency." The code is silent on the issue, he said. The attorney general's opinion, No. 98-1011, interprets the Cortese-Knox Local Government Reorganization Act of 1985 (Government Code §§56000-57550), which establishes LAFCOs to encourage orderly growth and development. The attorney general ruled that "A LAFCO, under its statutory rule-making powers and inherent parliamentary powers, has the authority to adopt rules permitting participation of alternate members at public hearings as well as in deliberations on proposals, short of voting." The opinion prepared by Deputy Attorney General Clayton Roche continues, "Undoubtedly, it would be beneficial for alternate members to be present at all the hearings of a LAFCO since proposals are commonly considered at more than one meeting. Attendance by all alternate members would allow them to be fully informed if they must replace the regular members who are absent or disqualified. Moreover, to permit alternate members to participate in the hearings and deliberations to the same extent as regular members (except voting) would enhance a fuller discussion and consideration of each proposal. In short, LAFCOs and the public would benefit by having alternate members present at all public hearings and participate in the deliberations." Closed sessions, which may be conducted to discuss certain personnel matters and litigation, are a different story, according to the AG's opinion. "Unless sitting in place of an absent or disqualified member, an alternate may not attend a closed session without converting the session into an unauthorized ‘semi-closed meeting.' A LAFCO may not enact parliamentary rules that contravene statutory law, in this case, the Ralph M. Brown Act," the opinion says. In quoting the AG's 1994 handbook on the Brown Act (Government Code §§54950-54962), the opinion states, "Persons without an official role in the meeting should not be present." Napa County Counsel Robert Westmeyer requested the opinion, which is found at 99 C.D.O.S. 1734.

Heavens, how did we ever design cities before marketing existed? Sarcasm aside, let us observe that the Main Street movement, despite its harkening of the past, has not necessarily encouraged simplicity. In today's marketing-driven urban-design culture, it does not seem to be enough to bring back housing and commercial uses. We must also bring in giant retail centers and brand-name retailers (usually the same 50 or so names you find in regional malls). Then the city itself must become a "festival." We must decorate the streets with historically false or incongruous street lamps and benches. We must mark important intersections with those strange red bricks that have become so ubiquitous in California that they deserve to be known as redevelopment pavers. We must hang banners that proclaim over and over again: "You're in Sierra Flats, the Stick-To-It-Iveness City!" Some cities do not choose to incorporate these tricks. One such city is Richmond, a working-class community of 70,000 on San Pablo Bay, north of Berkeley. The city has quietly been redeveloping part of its tiny downtown for the past decade. For the most part, this urban-infill project has not made use of the marketing afflatus that now seems part-and-parcel of downtown renaissances. Richmond's downtown intervention is interesting because Richmond is essentially a working-class community with a minimally developed downtown. It is not the classic "Main Street" project anchored by a row of charming historic storefronts. Instead, Richmond is a relic of the industrial era. Like a number of California cities, the city was largely the creation of the World War II-era munitions industry — in this case Kaiser Steel, which created a major shipbuilding plant in the city. Today, Richmond could be described as an old factory town, where frame houses mingle incongruously with warehouses. For much of the post-war period, Richmond has been attempting to shore up a declining industrial base. Accordingly, Richmond City Center has limited goals. It seeks to reintroduce housing, and the stores to support that housing, as well as some open space, into a downtown area that is largely lacking in both multi-family housing and open space (although the city has many parks outside downtown). In other words, Richmond City Center does not seek to reinvent downtown Richmond. Instead, it's an infill project that seeks to create both housing and open space, and perhaps even a sense of "civic focus" in an otherwise regular street grid. In a sense, Richmond City Center had its origins in the city's failure to build a downtown shopping mall two decades ago. The city acquired the site known as the Memorial Park property in the early 1970s, when the city had planned to save downtown with a mall that would either compete with or pre-empt a suburban mall. A suburban mall, however, was built about five miles away from downtown, and continues to thrive, and the city apparently gave up on the idea of developing the site, which lay empty for nearly 30 years. In the early 1990s, however, the city's redevelopment agency put together a dream team of two of the most experienced redevelopment-oriented developers in the Bay Area, BRIDGE Housing Corporation and The Martin Group. In a three-phased plan, BRIDGE converted an old hotel into 72 units of low-income housing, created 64 units of senior housing, and built 34 affordable for-sale townhomes. (The two-bedroom townhomes cost $108,000, compared to the average home price in Richmond of $150,000.) The project features a police substation to make local residents feel confident about security. Martin, a commercial developer, provided a 78,000-square-foot neighborhood shopping center anchored by a FoodCo and a Walgreen's drug store, as well as such prosaic, neighborhood-serving businesses as a dry cleaner, a laundromat, a one-hour photo place, a shoe store, and a beautician. The developer hopes that the 1,200 employees of the Social Security Administration, as well as the employees of the local Kaiser Permanente hospital, will help support the retail center. The greatest strength of the plan is its location in the direct center of downtown, where people are in easy walking distance of both a BART station and a local bus stop. The post office, the local Social Security office, and a hospital are also within walking distance, and they are welcome amenities to a residential project with a high number of older residents. And, of course, the retail is neighborhood-oriented. Another virtue of the plan is that it interrupts the monotony of the street grid with a roundish park, surrounded by a curved street; the townhomes face onto this street. The power of the circle in this plan creates a visual focus in this otherwise uninflected grid. Some purists among the New Urbanists might object to locating the housing slightly out of the way, on a street with a meandering route. But, I think it is a clever way of discouraging non-residential traffic on the street, while optimizing park frontage. I have mixed feelings about the park, however. In general, I dislike parks that are entirely surrounded by streets because they seem less-than-ideally accessible to children. I also think it is unfortunate that the park is a "passive" park, that is, it is more to be seen than to be used (although there is a tiny tot lot to one side). It is good that the city found a way of bringing back the Memorial Park, which is focused on a war memorial; local veterans groups reportedly wanted the park to retain its passive character, presumably to preserve its dignity. I believe that parks near residential areas should be as active as possible. I disagree that active recreational use shows disrespect to war veterans. With or without glitz, Richmond City Center is slowly helping downtown Richmond both look and function better. Last fall, the city gave about $500,000 in loans to local businesses along the west edge of the site, to help pay for façade improvements to commercial buildings. In the future, the city plans further redevelopment on city-owned parcels between Richmond City Center and the BART Station. It was Richmond's blessing in disguise to be stuck with simplicity, and to rebuild its downtown not as a regional mall but as a self-sufficient, urban neighborhood. Maybe if Richmond had more money, it would have made a fancier master plan. But that does not mean it would have necessarily been more successful. I'm just hoping the plan is never quite so successful as to justify the purchase of those red redevelopment pavers. I'll go mad.

North Natomas A lawsuit challenging a habitat conservation plan for Sacramento's North Natomas area has been filed in federal court by a group of environmentalists. A popular tool promoted by the Clinton administration, HCPs are intended to end disputes with landowners over plants and animals covered by the Endangered Species Act. Under the Natomas HCP, an acre of land is to be preserved for every two acres developed in the area, a few miles north of downtown Sacramento along Interstate 80. Habitat is to be protected for the threatened giant garter snake, the Swainson's hawk, and other plants and animals. Much of the land has been used for rice production and serves as winter habitat for waterfowl. The suit was filed by a coalition that includes the National Wildlife Federation, the Environmental Council of Sacramento, Friends of the Swainson's Hawk, the Planning and Conservation League, and the Sierra Club. Environmentalists told the Sacramento Bee that they hoped the lawsuit — only the third filed to challenge a complete HCP — would force higher standards for all HCPs. "There's a lot of endangered species in the Natomas region that are not getting enough protection," John Kostyack, attorney for the National Wildlife Federation, told CP&DR. "It exemplifies all that is going wrong with the HCP process." Kostyack said the plan ignores species' recovery needs. He also contended the land preservation plan is speculative. "There's no real basis for believing funding will be there to do that," he said. The lawsuit is the latest dispute over North Natomas after earlier problems with failed development plans and flood control issues (See CP&DR, September 1994). Current plans call for mixed-use development. The North Natomas HCP covers 53,000 acres in the city of Sacramento, Sacramento County and Sutter County. Only the city of Sacramento has so far approved the HCP for the 7,000 acres within its city limits. Grading has been completed for an initial phase of home construction, according to Gregory Thatch, an attorney who represents developers and landowners in the area. The lawsuit does not seek injunctive relief to stop construction, he said Contacts: Gregory Thatch, attorney, (916) 443-6956. John Kostyack, National Wildlife Federation, (202) 797-6879.

The defendants in an alleged SLAPP suit are entitled to attorneys fees even if the plaintiffs drop the case before the SLAPP motion to strike is heard, the Second District Court of Appeal has ruled. The appellate panel overturned the ruling of Los Angeles Superior Court Judge Carolyn B. Kuhl, saying that Kuhl's ruling "constitutes a nullification of an important part of California's anti-SLAPP legislation" because it denies the defendants monetary relief and relieves the plaintiffs of punishment. The term "SLAPP" suit — the acronym stands for "strategic lawsuits against public participation" — is often used by citizen activists to refer to punitive lawsuits filed by developers and others to discourage citizen activism. (For background, see CP&DR, November 1990.) The law permits a special motion to strike a cause of action that is found by the court to be a SLAPP suit. Though many SLAPP suits have emerged from a land use context, this one did not. Master Hong Alternative Healing — a health-care facility operated by Hong Liu — had been sued by Stefan Ashkenazy, who had alleged that Liu's provision of health care services to him had resulted in personal injuries. Subsequently, Liu filed a third-party cross-complaint against Deborah Moore, who had worked as a processor of medical bills by the medical doctor with whom Liu had shared office space, as well as several other parties. While working for the other doctor, Moore reported to government agencies that Liu was engaged in irregular Medicare billing practices, falsifying and destroying patients' medical records, and holding himself out as a medical doctor even though he had no license. In the Ashkenazy case, Liu's cross-complaint against Moore alleged causes of action for breach of fiduciary duty, intentional and negligent interference with prospective economic advantage, indemnity, apportionment of fault, and asked for declaratory relief. Moore filed a motion to strike the complaint under Code of Civil Procedure §425.16, the anti-SLAPP law. Rather than opposing Moore's motion to strike, Liu asked for — and received — a dismissal of his complaint against Moore only. No hearing on the motion to strike was ever held. Subsequently, Moore sought attorney's fees from Liu under the SLAPP law, but this request was denied by Judge Kuhl, who reasoned that because there had never been a hearing on the motion to strike, Moore could not be considered the prevailing party. On appeal, the Second District panel ruled that Judge Kuhl was wrong to permit dismissal of the underlying claim against Moore rather than conduct a hearing on the motion to strike. "We hold that a defendant who is voluntarily dismissed, with or without prejudice, after she files a section 425.16 motion to strike, is nevertheless entitled to have the merits of such motion heard as a predicate to a determination of the defendant's motion for attorney's fees and costs." To require the anti-SLAPP defendant to go through other channels to seek attorney's fees "would prolong both the defendant's predicament and the plaintiff's outrageous behavior." The appellate court also concluded that Moore is not necessarily entitled to attorneys fees for her anti-SLAPP litigation — including her successful appeal to the appellate court. The reason, the court concluded, was the same as above: Because no hearing had been conducted on the motion to strike, she could not yet be considered a prevailing party. The case was remanded to the Superior Court and a hearing on the motion to strike will probably be conducted. The Case: Moore v. Liu, No. B116425, 99 Daily Journal D.A.R. 1059, 99 C.D.O.S. 871 (filed January 29, 1999). The Lawyers: For Deborah Moore: Mark Allen Kleiman, (310) 393-1771. No lawyer appeared for Hong Liu.

The lack of precise engineering plans in an environmental impact report's project description of a proposed gravel mine expansion did not violate the California Environmental Quality Act, the Fifth District Court of Appeal has ruled. "CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive," Justice James F. Thaxter wrote in the unanimous decision for the three-judge panel. When considering an EIR, the court must determine if an agency favored a project proponent, constituting a prejudicial abuse of discretion. The court does not decide whether the EIR's environmental conclusions are correct, Thaxter wrote. "The absence of information in an EIR does not per se constitute a prejudicial abuse of discretion. A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decision making and informed public participation, thereby thwarting the statutory goals of the EIR process." The case centers on Tulare County's review of a proposal Artesia Ready Mix Concrete Inc. submitted in 1994. Artesia asked to expand an existing gravel mine in the Dry Creek floodplain, on the eastern edge of the San Joaquin Valley. Artesia wanted to increase its mining and processing area from 33.5 acres to 162 acres, and excavate up to 70 feet. As part of its reclamation of the site, Artesia would create a 45-acre lake surrounded by wooded areas. At the request of Kaweah and St. Johns Rivers Association, a private organization with jurisdiction over the allocated surface water rights, Artesia altered its proposal to include a bypass channel and diversion structures. The channel was intended to carry water flows of 300 cubic feet per second or less around the mine pit to mitigate downstream water loss during dry months. Artesia signed a memorandum of understanding with the association. The county Planning Commission in November 1996 certified the final EIR and approved the surface mining permit, subject to 85 conditions. The Planning Commission found no impacts that could not be mitigated. The Dry Creek Citizens Coalition, plus the national and Tulare County Audubon Societies and the California Native Plant Society, appealed the decision to the Board of Supervisors. After the Board of Supervisors denied the appeal, the organizations sued the county. Dry Creek Citizens Coalition contended it was improper for the county to certify the EIR while using only conceptual descriptions of the diversion channel and related in-stream structures. Furthermore, the organizations said, the EIR simply assumed the structures would function as intended. And the EIR defers approval of the final engineering designs until after project approval, preventing the public from commenting upon the designs, the coalition complained. Tulare County Superior Court Judge Kenneth E. Conn rejected those arguments and upheld the EIR's validity. The appellate court affirmed Conn's ruling. The court determined that the EIR contained adequate detail for decision-makers to decide on the proposal. "In fact, engineered drawings may well supply ‘extensive detail beyond that needed for evaluation and review of the environmental impact' in violation of Guidelines §15124," Thaxter wrote. Thaxter noted that a downstream property owner, John Dofflemyer, had argued that greater design detail would enable him to determine how the proposed diversion channel would affect his water supply. At the same time, Dofflemyer challenged the EIR's conclusion that the impact would be insignificant. "Appellants do not point out how additional detail regarding the diversion structure would enhance environmental review in this regard," the court wrote. "Dofflemyer's contrary opinion regarding the significance of this project impact does not render the project description inadequate." The court said the county had a reasonable basis to assume in-stream structures would function as designed. As for the county's deferral of the final channel design until after approving the project, Dry Creek Citizens Coalition likened the situation to Stanislaus Natural Heritage Project v. County of Stanislaus (1996), 48 Cal. App.4th 182, 194-195 (See CP&DR Legal Digest, September 1996). In that case, the county deferred an analysis of water supply for a 5,000-home subdivision and resort until after approving the development. The appellate court in that case ruled the county had circumvented CEQA by not informing the public and officials about environmental consequences of approving the project until after a decision was made. But the appellate court said the gravel mine case is different. "The ‘conceptual' description of the diversion structures for the mining project in this case is not comparable to the failure to identify a water source in Stanislaus Natural Heritage. Here, the technical and environmental characteristics of the structures are described and illustrated in general terms in compliance with Guidelines § 15124, subdivision C. Further, there are well established design criteria for each," Thaxter wrote. The citizens coalition also contended the county violated California's Surface Mining and Reclamation Act. However, the court ruled "any violation of SMARA was not prejudicial." The Case: Dry Creek Citizens Coalition v. County of Tulare, No. F030405, 99 Daily Journal, XXXX, 99 C.D.O.S. 1332 (filed February 19, 1999). The Lawyers: For Dry Creek Citizens Coalition: J. William Yeates, (916) 446-5475. For County of Tulare: Robin Cochran and Penelope Alexander-Kelley, Gresham, Savage, Nolan & Tilden, (909) 884-2171.

The lengthy story of a proposal to bury Los Angeles County trash in San Bernardino County took a surprising turn when San Bernardino County's long-time planning director was indicted on charges of allegedly hiding, altering or destroying public records and lying about it in a sworn statement. Land Use Services Director Valery Pilmer pleaded not guilty after being indicted in late January by a special San Bernardino County grand jury investigating the Rail-Cycle landfill project. She has since been placed on administrative leave. Planners and local government experts in California and around the country could not recall a similar criminal indictment of a county planning director. Dr. Jim Mulvihill, a California State University, San Bernardino planning professor, said he was shocked by the indictment of Pilmer. "She is about as prim as could be. It's almost like the school librarian was indicted," said Mulvihill, who has known Pilmer for years. Other municipal planners were also surprised at the indictment of their respected colleague and wondered about the incident's effect on how they do business. "I think it's unfortunate in a way," said Leonard Garoupa, president of the California County Planning Directors Association. "I think this kind of thing has a chilling effect on how the public perceives how we do our job and how we interact with project applicants." Pilmer's lawyer, Dennis Kottmeier, contended the planner is a victim of a district attorney's office that has exceeded it bounds. "I think to a certain extent the DA's office manipulated the grand jury to get the results it wanted," charged Kottmeier, the San Bernardino County district attorney from 1981 to 1995. Ironically, the indictment stems from an investigation of a development that never advanced beyond the proposal stage. Waste Management Inc. of Irvine and Santa Fe Railroad in the early-1990s proposed Rail-Cycle — a giant landfill at an abandoned railroad depot between Amboy and Cadiz in the Mojave Desert about 100 miles east of San Bernardino. The plan called for rail cars to deliver up to 21,000 tons of trash a day to the landfill. Despite opposition from desert residents and environmentalists, county officials approved the project. But voters in 1996 defeated a business license tax that was essential for Rail-Cycle to go forward. Project proponents pressed their case with the county, but the landfill stalled. Now, three years later, Rail-Cycle is alive only in a grand jury investigation and in criminal court proceedings. The county pursued the Rail-Cycle project to help fill government coffers, explained Professor Mulvihill. At the time, the county budget was suffering and county administrators were laying off employees. Importing garbage from Los Angeles County seemed like a sure money-maker, he said. At some point, law enforcement authorities acquired interest in the garbage-on-rails proposal. On March 7, 1997, the San Bernardino County Sheriff's Office executed search warrants for the Land Use Services Department, which includes the planning department, Waste Management offices in Irvine, and the homes of Waste Management executives. Deputies carted away more than 100,000 documents from the Waste Management office, according to a report in the San Bernardino Sun. A group of eight to ten law enforcement officers spent seven hours in the planning department rounding up Rail-Cycle documents, according to Kottmeier. However, investigators apparently did not get what they wanted from the planning department, so the district attorney's office sent the planning department a request for the rest of the information. Pilmer assembled more documents and on June 17, 1998 signed an affidavit – prepared by the county counsel – stating that there were no further related documents in a conference room. In fact, there were files remaining in the conference room. Kottmeier said the incorrect affidavit resulted from a miscommunication between Pilmer and the county counsel. A planning department employee told the grand jury that she and a co-worker saw Pilmer carry a file marked "Rail-Cycle" out of the planning department after Pilmer had been advised not to remove such documents because of the investigation, said Dan Lough, San Bernardino County assistant district attorney. He contended Pilmer concealed public records and logs of who removed documents. Kottmeier said Pilmer did nothing improper and the co-worker's testimony put Pilmer in the difficult position of trying, nearly two years later, to reconstruct in her mind what file she took home that night and what she did with it. "We don't know what file it is or whether it was ultimately turned over to the DA's office," Kottmeier said. The group of officers armed with search warrants had seven hours to locate and remove any documents it wanted from the office, he added. Pilmer's carrying home a file after officers departed is not suspicious because she regularly took home files to review, he said. Garoupa said planning directors often take home files and they frequently alter staff reports on development proposals because such diligence is necessary to handle complicated issues and projects. Members of the planning directors association discussed Pilmer's case shortly after her indictment and will closely monitor the outcome. "We've all known her for a while. She's a highly respected and professional person," Garoupa said. Pilmer's indictment was not the first in the Rail-Cycle case, and it may not be the last. On Oct. 1, 1998, the grand jury indicted Waste Management, the Rail-Cycle limited partnership and five Waste Management employees for alleged fraud, wire tapping, receiving and concealing stolen property, illegal use of trade secrets and other illegal acts. The company and employees have not entered pleas, but they deny wrong-doing and contend part of the indictment is not supported by grand jury testimony. A San Bernardino Sun columnist, Cassie MacDuff, recently suggested the whole conspiratorial plot may have been fabricated by a Rail-Cycle consultant who is looking for leniency in an unrelated drug case. According to the grand jury's indictment, Waste Management tried to destroy Cadiz Land Co., which was Rail-Cycle's largest opponent. Cadiz owns 1,700 acres of grape and citrus fields about two miles from the proposed landfill site and wants to sell underground water from the area to municipal and agricultural users. Cadiz feared the landfill would foul the groundwater. Waste Management operatives manipulated well readings by turning on pumps that were supposed to be inactive during a test period, according to the grand jury indictment. Waste Management executives then spread false rumors about reduction of the aquifer and Cadiz business practices in hopes to harming Cadiz's stock price, in addition to tapping Cadiz telephones, stealing a computer disk and forging signatures, according to prosecutors. A few criminal counts against the project proponents have been dismissed, but a trial remains a long way off, said Lough, the assistant district attorney. Two months after the Waste Management indictments, the grand jury indicted former Planning Commissioner Michael Dombrowski and his wife, Susan, for allegedly soliciting bribes, perjury, filing a false tax return and state income tax evasion. Michael Dombrowski was additionally charged with receiving bribes and grand theft. They have pleaded innocent. Although the charges against the Dombrowskis sprang from the Rail-Cycle investigation, the alleged wrongdoings are not related to Rail-Cycle, said Lough, the assistant district attorney. Mulvihill said the Dombrowskis' indictment is as surprising as Pilmer's. He described Michael Dombrowski as a "boy scout." "I know these people. They are just honest and upright," Mulvihill said. "(The investigation) can't stop with them. Obviously, there are people further along. If they did something wrong, it was because they were taking orders from above." Added Lough, "The grand jury is still active. Whether that is the end of problems for these people remains to be seen." Kottmeier said every planning department employee has already testified before the grand jury. "I'm astounded that the deputy DA's in this case would have been as mean and antagonistic to the employees of the planning department as they were," he said. The indictment has had "a devastating impact" on Pilmer, the planning director for more than 10 years and a San Bernardino County employee since the early 1970s, Kottmeier said. "Going through an experience like this really changes your perspective on whether you want to work for the county," he said. Contacts: Dennis Kottmeier, attorney, (909) 889-6100. Dr. Jim Mulvihill, California State University, San Bernardino planning professor, (909) 880-5522. Dan Lough, San Bernardino County assistant district attorney, (909) 387-6601. Leonard Garoupa, president, California County Planning Directors Association, (559) 675-7821

The City of Los Angeles is once again considering a reorganization of its redevelopment functions that would dismantle the once-powerful Community Redevelopment Agency and place it under the control of the City Council. But some council members are still balking at the idea of taking over the CRA themselves. At a meeting in early February, the council ordered city officials to move forward with the reorganization plan, which would give the council direct control over redevelopment functions and create a new Community Development Commission to advise the council. The proposal would create a new Economic Development Department to handle all of the city's economic development-related activities and place the city Housing Department in charge of the CRA's housing activities. The implementation plan will be drawn up by Ronald Deaton, the city's chief legislative analyst. "This is closer than we've ever gotten before," said Councilman Mark Ridley-Thomas, an advocate of the reorganization whose district covers most of South-Central Los Angeles. Ridley-Thomas and other advocates say Los Angeles has not been competitive in economic development because of a sprawling and inefficient bureaucracy that encompasses several departments, including the CRA. Some council members oppose a CRA takeover, saying they already have enough to do. Mayor Richard Riordan supports a reorganizations in concept but has called for more study. The proposed reorganization is important because the CRA has traditionally been the most powerful and autonomous redevelopment agency in the state. Unlike almost all other cities in the state, in Los Angeles the City Council does not double as the redevelopment agency board. Rather, the CRA board is appointed by Los Angeles's mayor, who has traditionally exerted considerable control over the agency. During the administration of Mayor Tom Bradley, who left office in 1993, the redevelopment agency focused on downtown redevelopment projects and was rich with incremental property tax revenues. However, the redevelopment reform bill of 1993 — along with declining property values and a CRA-financed bailout of the Los Angeles city budget during the recession — have turned the agency's once-abundant surplus into a deficit. The agency's annual tax-increment flow has dropped from $130 million in the early 1990s to only $80 million today, according to CRA officials,. As a result, the CRA currently faces a $40 million shortfall over the next five years. Recent high-profile projects — such as the Staples Center arena in downtown L.A. and a major retail/entertainment complex in Hollywood — "have not been funded out of traditional CRA revenue sources," said health-care entrepreneur Keith Richmond, a CRA commissioner appointed by Riordan. The Staples Arena, which will be home to the Lakers and Clippers basketball teams and the Kings hockey team, was financed largely with private funds, though this city did contribute $70 million in up-front financing. The city's contribution to the Hollywood project, which will include the new venue for the Academy Award ceremonies, will be paid back largely out of incremental sales-tax revenues from the project's retail component. Indeed, the CRA appears little involved in the highest-profile redevelopment project currently pending in the city — the proposal to renovate the Los Angeles Coliseum for a new National Football League team. Rather, the stadium will be financed largely with private funds raised by developer Ed Roski, who also served as developer of the Staples Center. Heavy-hitting Los Angeles fundraiser Eli Broad was recently added to the Coliseum team to try to "close the deal" with the NFL. The Coliseum is owned and operated jointly by the City of Los Angeles, L.A. County, and the state government. CRA reorganization proposals have been floating around ever since the Los Angeles riots of 1992, which undermined the credibility of Mayor Bradley's downtown-oriented redevelopment approach. In recent years, the CRA has created several new project areas in the San Fernando Valley and South Central, both of which were hit hard by the 1994 Northridge earthquake. Also, in the wake of the riots, many City Council members demanded a more targeted, team-oriented approach to neighborhood revitalization. In response four city departments — planning, housing, community development, and the CRA — put forth a plan to work together at the neighborhood level. But critics such as Ridley-Thomas say the coordinated effort has not worked well enough. "It takes too long to get a project done," Ridley-Thomas said in an interview. The proposal tentatively approved by the council includes four components: First, it calls for a direct council takeover of the CRA's functions, thus abolishing the separate CRA board appointed by the mayor. The city must declare either the council or another body as the redevelopment agency in order to take advantage of the provisions of the redevelopment law. Second, the city's proposal calls for the creation of an advisory body, called the Community Development Commission, to oversee economic development functions and make recommendations to the council on economic development matters. Third, the proposal calls for the creation of a new Economic Development Department that consolidates all economic development functions. These functions include not just the CRA, but also activities of the L.A. Community Development Bank and the administration of such state and federal programs as Economic Development Administration grants, block grants, and enterprise and empowerment zones. Fourth, the proposal calls for the transfer of all CRA housing functions to the city Housing Department. Because CRA has traditionally allocated more than the required 20% revenue "setaside" for housing, it is one of the most important sources of revenue for low- and moderate-income housing development in the entire city. Several longtime council members oppose direct council takeover of CRA functions. On the Los Angeles public radio program "Which Way L.A.," Councilman Nate Holden said he believed that Ridley-Thomas and other simply wanted to use the CRA to promote "pet projects." Other council members say they don't want the city's economic development effort to be burdened by the CRA's financial problems. Mayor Riordan has remained silent on the specifics of the reorganization while supporting it in concept. During his six years as mayor he has sought to coordinate economic development efforts from his office. But he has placed emphasis on fast-track permitting and broad-based assistance to the business community rather than targeted redevelopment efforts in distressed neighborhoods. These efforts — known as "L.A.'s Business Team" — would be unaffected by the economic development reorganization, at least at first, according to the plan being devised by Deaton's office. Contacts: John Molloy, Administrator, L.A. CRA, (213) 977-1600. Mark Ridley-Thomas, Councilmember, L.A. City Council, (213) 485-7616. Ronald Deaton, Chief Legislative Analyst, City of Los Angeles, (213) 485-6622.

A Superior Court ruling invalidating the environmental impact report for El Dorado County's general plan is likely to reopen debate over the amount of growth allowed in the county and puts into question the future of several large developments. In a 142-page ruling, Sacramento Superior Court Judge Cecily Bond determined that the EIR violated the California Environmental Quality Act in 23 different ways. The judge found the county did not adequately address, among other things, impacts on water sources or traffic congestion. Furthermore, the EIR "failed to serve as an ‘environmental alarm bell' or a ‘document of accountability,' which the Supreme Court has stated are two of the essential functions of CEQA," Bond wrote. The ruling means the county will not approve discretionary projects during the near future, County Counsel Lou Green said. In a few months, the county hopes to receive a court order outlining how to deal with pending projects while completing the EIR work and adopting another general plan, he said. "In the meantime, there is no prohibition against issuing building permits because there is no finding of consistency (with the general plan) required for that," Green added. Revising the EIR to satisfy the ruling will take six to nine months, Planning Director Conrad Montgomery estimated. However, with two new members taking seats in January, the Board of Supervisors appears to have a slower-growth attitude, which could mean a much longer debate over development in general lies ahead. Attorney Stephan Volker — who represented a group of 18 homeowner groups, environmental organizations and government agencies — contended the county implemented a bait-and-switch scheme by not revising a 1993 EIR after making major changes to the proposed general plan in 1995. "The public was fundamentally misled into thinking this document (the general plan) would reduce environmental impacts and result in moderate or slow population growth," Volker said. "Now it's obvious the plan is void and the county will have to go back to the drawing board." County officials contended the 1996 general plan allowed less construction than the previous general plan, even though the new plan projected population growth from 150,000 to 370,000 by 2015. Judge Bond said the EIR should have considered the impacts of not revising the general plan and of a realistic slow-growth alternative. The judge, however, rejected challenges to policies in the general plan and denied a claim that the document violated "the public trust." Still, the decision requires El Dorado County to set aside the general plan, said Jim Moose, a Sacramento CEQA attorney for the county. "It's a very tough decision. It's a very strict interpretation of CEQA," Moose said. Volker vowed to continue fighting developments that would "prejudice future planning options." Large projects should go on hold until the county adopts an adequate general plan, he said. Planning Director Montgomery seemed to agree. "What we are looking at is a very wide-ranging moratorium on discretionary projects,'' he said. The judge's decision placed in limbo for an unknown period five large western county projects totaling about 5,200 homes, plus retail, office, and industrial development, according to Montgomery. Beginning in 1989, the county spent 6 1/2 years and $4 million revising its general plan. A consultant, Sedway Cooke Associates, finished a draft plan in 1992, but the Board of Supervisors then assigned county planners to work on the plan. The staff completed another draft plan in 1994, only to have a new, pro-growth board further alter the document before adopting it in 1996. The coalition represented by Volker then filed suit. Meanwhile, an initiative that growth-wary El Dorado voters approved last November has received a legal challenge. Measure Y was intended to force builders to pay for roads serving new subdivisions. The developers' lawsuit, filed January 29 in El Dorado Superior Court, takes issue with portions of Measure Y but does not contest the underlying theme that developers should pay for their traffic impacts, said attorney Michael Zischke, of San Francisco. Instead, builders contend the initiative fails to provide required exceptions for affordable housing projects, illegally removes road-spending from the Board of Supervisors' purview, and calls for a new election in 10 years with no authority to do so, Zischke said. Also, the measure conflicts with El Dorado County general plan policies regarding road funding and acceptable levels of service, Zischke said. Judge Bond did not throw out the general plan nor order the county to amend it, he noted. Green, the county counsel, intends to put the Measure Y lawsuit on the back burner because the initiative deals with standards for approving projects under the general plan — whose status now is uncertain. Contacts: Stephan Volker, attorney, Brecher & Volker, (510) 496-0600. Conrad Montgomery, El Dorado County planning director, (530) 621-5355. Lou Green, El Dorado County counsel, (530) 621-5770. Michael Zischke, attorney, Landels Ripley & Diamond, (415) 512-8700.

In a split decision, the California Supreme Court has once again expanded the scope of the anti-SLAPP law. This time, the court concluded that an allegation of racism in small-claims court and a complaint to the federal government does constitute the type of "issue of public significance" described in the law. In overturning a ruling by the First District Court of Appeal, the five-member Supreme Court majority rejected the argument that a nonprofit organization's tenant counseling activities were private in nature and neither promoted free speech nor informed the public about possible wrongdoing. The court also found that a defendant using the anti-SLAPP law need not make a separate showing that an issue of public significance was involved. In a separate opinion that concurred with part of the opinion, Justice Marvin Baxter -— joined by Justice Janice Brown — warned that the majority is "holding that EVERY lawsuit based on ANY actionable word uttered or written in connection with ANY legislative, executive, judicial, or other "official" proceeding in the state of California will henceforth, as a matter of law, be deemed a retaliatory SLAPP suit." The term "SLAPP" suit - the acronym stands for "strategic lawsuits against public participation" - is often used by citizen activists to refer to punitive lawsuits filed by developers and others to discourage citizen activism. (For background, see CP&DR, November 1990.) The law permits a special motion to strike a cause of action that is found by the court to be a SLAPP suit. Appellate courts have issued a dozen or so rulings on the SLAPP law, most of which have emerged from land-use disputes. However, the Briggs v. Eden case is the Supreme Court's first ruling on the issue. The Briggs case lingered on the Supreme Court's docket for several years, and the Legislature changed the law in 1997, partly in response to the Court of Appeal's ruling in the Briggs case. The majority relied heavily on the 1997 legislative changes in reaching its ruling. The Supreme Court's ruling clarifies an issue that has been the subject of disagreement even among different panels within the First District Court of Appeal. The case began when the Eden Council for Hope and Opportunity, a nonprofit organization in Hayward, began counseling several tenants who rent residential property from the plaintiffs in the case, Dan and Judy Briggs. In 1990, tenant Pamela Ford, an African-American, complained to ECHO that the Briggses were treating her differently than a white tenant. With ECHO's assistance, she filed a complaint with the federal Department of Housing and Community Development and filed a small-claims action in court. The Briggses were exonerated by HUD but Ford prevailed in the small claims court. Meanwhile, in an unrelated action, the Briggses sued ECHO and obtained a court order for the organization to produce its files. The Briggses alleged that ECHO employees had called them racists and specifically said Dan Briggs is "a redneck and doesn't like women." In 1991, Briggs called ECHO, seeking the names and addresses of ECHO board members so he could complain to them about the fact that ECHO had not produced the documents he had requested. Subsequently, Briggs had a telephone conversation with Caroline Peattie, ECHO's assistant executive director. According to the files, while talking with Briggs, Peattie wrote "KKK" on her message pad. In later meetings, ECHO staff members discussed whether Briggs was mentally unbalanced and made notes suggesting that the Briggses were on a "witchhunt." The Briggses later filed a lawsuit seeking damages for defamation and intentional and negligent infliction of emotional distress. In response, ECHO filed a motion to strike the complaint under the anti-SLAPP statute. The law requires that the anti-SLAPP law be applied only in cases where the statements in question are made in connection with issues "pending before or under consideration by executive and judicial bodies." Otherwise, the law can be applied only if the matter at hand involves an "issue of public significance." The Briggses argued that ECHO's alleged activities did not involve matters of "public significance," meaning they were not covered by the law. Alameda County Superior Court Judge Bonnie Lewman ruled in favor of ECHO's motion to strike the complaint and awarded ECHO attorney fees. The Briggses appealed both. The First District Court of Appeal, Division One, consolidated the two appeals and reversed Judge Lewman on both counts. The court held that ECHO had not made a prima facie argument that the lawsuit arose from an act by ECHO in furtherance of its constitutional petition or speech rights in connection with a public issue. Therefore, the appellate court concluded, it would not be covered by the anti-SLAPP law unless it dealt with an issue of public significance. "We remain committed to our earlier position that a lawsuit qualifies as a SLAPP suit only if it challenges a statement on a PUBLIC issue made in an official proceeding or a statement made in connection with a PUBLIC issue under review in an official proceeding." Division One's presiding justice, Gary Strankman, dissented from part of the ruling, concluding that the HUD and small-claims proceedings did not involve a public issue. He did, however, agree with the conclusion that a public issue showing is separately required. In 1997, after the California Supreme Court had agreed to hear the case, the Legislature amended the anti-SLAPP law and directed the courts to construe it as broadly as possible. In her opinion for the Supreme Court majority, Justice Kathryn Werdegar stated that the Supreme Court would have reversed the Court of Appeal ruling in any event but that the 1997 legislative amendments buttressed the argument to do so. The legislative amendments were but one of four arguments she used in reversing the appellate court. First, Justice Werdegar argued that the "plain language" of the anti-SLAPP statute argued in favor of ECHO's position that no separate finding of a "public issue" was required. All of ECHO's actions, she stated, were in connection with official proceedings. But, she added: "Even assuming, for the purposes of argument, that plaintiffs accurately have characterized ECHO's activities as constituting neither self-interested nor general political speech, we cannot conclude such activities thereby necessarily fall outside the protection of the anti-SLAPP statute." Indeed, she added, "the statute does not require that a defendant … demonstrate that its protected statements or writings were made ON ITS OWN BEHALF (rather than, for example, on behalf of its clients or the general public)." Werdegar also concluded that ECHO's arguments were valid under legal "principles of statutory construction," where different words or phrases are used in the same connection in different parts of the statute. In this case, she was referring to the various ways in which the statute deals with the question of "public interest" or "public issues." Under principles of statutory construction, she concluded, the law imposes no requirement to make a separate finding that the statements were made in connection with a public issue. Finally, Werdegar concluded that broad construction of the anti-SLAPP statute makes sense "from the standpoint of judicial efficiency." "In effectively deeming statements and writings made before and connected with issues being considered by any official proceeding to have public significance PER SE, the Legislature afforded trial courts a reasonable, bright line test applicable to a large class of potential section 425.16 motions." This last line of reasoning was a direct counter-argument to Justice Baxter's concurring and dissenting opinion, which argued that a broad construction would open the floodgates to anti-SLAPP motions to strike. In his lengthy separate opinion, Baxter agreed that ECHO had been acting in connection with a public issue. However, he disagreed with the majority's conclusion that a separate showing regarding a public issue was not necessary. Acknowledging that the anti-SLAPP law is a "powerful tool," he noted that it is not "generally available to the parties to any civil action." "The majority's holding in this case belies that carefully delineated legislative purpose and will authorize use of the extraordinary anti-SLAPP remedy in a great number of cases to which it was never intended to apply," he wrote. The Case: Briggs v. Eden Council for Hope and Opportunity, No. S062156, 99 Daily Journal D.A.R. 687, 99 C.D.O.S. 554 (filed January 21, 1999). The Lawyers: For Briggs: Kevin Anderson, Anderson & Blake, (408) 993-8493. For ECHO: Mark Goldowitz, Brancart & Brancart, (510) 835-0850.

In a split decision, the Fourth District Court of Appeal has ruled that the City of Riverside's requirement that poolrooms be closed from 2 a.m. to 6 a.m. is unconstitutional because it denies poolroom owners equal protection under the law. Noting that the ordinance dates back to 1909, Acting Presiding Justice Thomas Hollenhorst wrote for the majority: "Unfortunately, times are different today, and there are many establishments that cater to idleness and are open all night. The City cannot rationally claim that it is fighting crime merely by closing down poolrooms for four hours each morning." In dissent, Justice James Ward concluded that the city's decision to single out poolrooms is a legislative prerogative that the court should not overturn. "The majority's opinion essentially takes the City of Riverside to task for passing an ordinance without a rational basis," he wrote. "There was a rational basis for the City's decision and it is not for us to second guess the legislative body." The case emerged from Riverside's attempt to regulate poolrooms more strictly after several new ones opened in the city in the early 1990s. Having regulated poolrooms in some form since 1909, the city has required a special zoning permit for poolrooms since 1972. After two decades of little poolroom activity, however, four new poolrooms applied for permits in 1991. At the time, the permit process simply required a city investigation of the applicants and their backgrounds. Seeking more stringent regulations, the City Council imposed a moratorium on new poolroom permits and ordered the city attorney and the police department to draft a new poolroom ordinance. In 1992, the police department presented a draft ordinance to the Riverside City Council land use committee that called for closing poolrooms between 2 a.m. and 6 a.m. However, the police department did not conduct any analysis of crime at poolrooms during the nighttime or in comparison to any other public amusements that are open all night. After some changes by the city attorney, the new ordinance — with the hours restrictions — was adopted by the City Council. Poolrooms were expected to abide by it by March of 1993. Subsequently, the City Council amended the poolroom ordinance to state that public safety concerns required the restriction of hours. Jim Estavanovich, owner of Mr. Cue's Family Billiards, sued, claiming his constitutional rights had been violated. After a trial, a Riverside County Superior Court judge ruled in favor of Estavanovich. The city was enjoined from enforcing the hours, and Estavanovich was awarded inverse condemnation damages of $17,800. The city appealed, claiming that Estavanovich failed to establish that the ordinance is unconstitutional on its face. On appeal, Justice Hollenhorst placed great emphasis on the fact that the ordinance singled out poolrooms rather than all places of public amusement. "It is clear that the regulation of crime is a legitimate use of the police power," he wrote. "Further, since places of amusement and poolrooms are not suspect classes, a city can regulate either places of amusement or poolrooms for public safety reasons. On the other hand, it is an entirely different question whether a law that separates poolrooms from all other places of amusement, and all other places open late at night, creates a rational classification — and not an arbitrary distinction." Hollenhorst went on to criticize the city for singling out poolrooms. "A darts parlor or bowling alley would be allowed to remain open all night, but a poolroom would not. It is irrational to believe that the closing of the poolroom in a bowling alley at 2 a.m. will discourage criminal activity when the persons playing pool can remain in the bowling alley." Hollenhorst also concluded that "it is not even clear that there is any significant crime to regulate at poolrooms" because the few statistics the city police provided on this topic addressed only police calls to poolrooms and did not compare them to other public amusements. Among other things, the police statistics showed that almost all of the poolroom police calls between 2 a.m. and 6 a.m. originated from one pool hall and most of them dealt with activity at a nearby drug house. "In the absence of any reason to associate crime with poolrooms as opposed to other places of amusement," Hollenhorst concluded, "it is irrational for the City to single them out from other establishments and shut them down during certain hours. This classification scheme is arbitrary, discriminatory, and unconstitutional." In his dissent, Justice Ward argued that the city was entitled to a presumption of constitutionality and that Estavanovich had failed to establish that his equal protection rights had been violated. Ward was especially critical of the majority for "reading into" the text of the ordinance and seeking to overturn a legislative decision. "The question before this court is not whether we agree with the City's decision to close poolrooms between 2 a.m. and 6 a.m.," he wrote. "It is not our job to make that judgment call. This is a legislative prerogative. We merely have to find it debatable whether restricting the operating hours of pool halls will accomplish the stated goals of the legislative body. I find it debatable. The plaintiffs' burden is to convince us that it was irrational for the City to believe the regulation of hours of operation would achieve its goals. They have not convinced me." The Case: Estavanovich v. City of Riverside, No. E018016, 99 Daily Journal D.A.R. 845, 99 C.D.O.S. 713 (issued January 25, 1999). The Lawyers: For Estavanovich: Harry H. Histen, (909) 682-4121. For City of Riverside: Gregory P. Priamos, Supervising Deputy City Attorney, (909) 782-5567.