Auto racetracks and rock concert venues are often seen as noisy land uses with the potential to generate monster traffic jams. Rare is the homeowner who wants a speedway or concert amphitheater in his back yard. Thus, the lack of opposition to plans to build a speedway and amphitheater in southern Yuba County is extraordinary — but no more extraordinary than the fact that this $90 million development is pegged for one of California's poorest counties. Preliminary grading and road work has commenced for the Yuba County Motorplex, a 900-acre development among the rice fields between Highways 65 and 70 about 10 miles south of Marysville and, more importantly, 30 miles north of Sacramento. Developers Frank Arciero Sr. of Orange County and Gerald R. Forsythe of Illinois plan a 1.3-mile oval track, a drag strip and several road courses. At the far end of the site, San Francisco's Bill Graham Presents plans a 20,000-seat amphitheater, which is scheduled to open in spring of 2000. The projects were approved when 84 percent of Yuba County voters backed a 1998 initiative that created a sports and entertainment zoning district, said James Manning, Yuba County community development director. The new zoning specifically allows a racetrack and concert venue. The county had been processing a zoning amendment and conditional use permit, and it had circulated a draft environmental impact report. However, a few opponents were slowing the process, so county supervisors put the initiative on the ballot, Manning said. Arciero paid for election costs. All the developers need now are building permits, because "all the regular review processes stopped" upon approval of the initiative, Manning said. Both the racetrack and the amphitheater ended up in Yuba County (population 61,000) after communities in the Sacramento metropolitan region showed ambivalence, if not outright hostility, toward earlier proposals. "Frank Arciero had done a lot of searching before he chose this site," said Norm Richards, construction manager for the motorplex. "He had found a more desirable site, but it happened to be in Sutter County. Sutter County wouldn't hardly even talk to him about it." That site along Highway 99 sits just north of the Sacramento County line, near Sacramento International Airport. Arciero also searched near the northeastern Sacramento suburbs in Placer County, but he got nowhere, Richards said. Sutter County Planning Division Director Tom Last said Arciero spoke with county officials but never filed an application. South Sutter County's 10,500-acre commercial and industrial reserve probably could have accommodated the speedway, he said. "County staff clearly would have supported it. It would have been a matter of them mitigating all the impacts and getting approval from the Board of Supervisors," Last said. Bill Graham Presents spent five years searching for a site to construct a replacement for its now-closed facility at Cal Expo in Sacramento, said Tim O'Brien, BGP's project manager. Sacramento, Roseville, Folsom, Elk Grove and Woodland all had potential amphitheater sites. But it was Yuba County that cooperated. "We didn't find that anywhere else," O'Brien said. "We ran into a lot of different issues — noise and traffic. When you're dealing with a facility like an amphitheater, you're dealing with a lot of perception versus reality." The facility's site — a 35-minute drive from downtown — is not a problem, O'Brien contended. "People are going to go where the talent is playing," he said. Early stages of motorplex construction have slowed because even small amounts of rain turn the former rice fields into equipment-sucking bogs. Still, developers intend to have the drag strip and seating for 10,000 fans complete this year. Construction of the oval track and seating for another 40,000 spectators probably will begin in spring of 2000, with racing likely in 2001, Richards said. The significance of the speedway and amphitheater for Yuba County is difficult to overestimate. Incomes are modest in Yuba County, where and the February unemployment rate of 14.7 percent was nearly 2 1/2 times greater than the state average. The motorplex will employ 50 to 75 people full-time and 120 to 150 people during races. Major events should provide work for up to 500 vendors. Bill Graham Presents plans 25 to 40 shows a year between April and October at a facility modeled on BGP's Shoreline Amphitheater in Mountain View. The amphitheater, on about 90 acres BGP purchased from Arciero, will employ up to 650 people on the day of shows and have a small year-round staff, O'Brien said. Additionally, about 70 acres are designated for industrial development and could provide up to 1,500 jobs. All 900 acres lie within the Yuba-Sutter Enterprise Zone, which gives businesses tax credits for hiring employees and buying equipment, said Mary Hansen, enterprise zone manager. Contacts: Norm Richards, Yuba County Motorplex construction manager, (530) 741-3100. Tim O'Brien, Bill Graham Presents project manager, (415) 541-0800. James Manning, Yuba County community development director, (530) 741-6419.

Failure of a county to send a copy of a mitigated negative declaration to the state Department of Fish & Game is a big enough oversight to require setting aside the mitigated negative declaration and a subsequent rezoning, the Third District Court of Appeal has ruled. In interpreting Public Resources Code §21005, the unanimous three-judge panel ruled that the lack of notice given to a trustee agency "deprived the county of information necessary to informed decision making and informed public participation," and improperly prejudiced Shasta County's decision on a proposed rezoning and residential development. Shasta County in 1987 approved an application from Fall River Ranches to develop 14 residential sites along Fall River. After acquiring an additional 150 acres, Fall River Ranches applied for another rezoning and more residential units. The county solicited comments from interested and affected agencies in 1995, and published a public hearing notice on Dec. 19, 1996. The county, however, did not send a copy of the mitigated negative declaration to DFG. The Board of Supervisors in January 1997 approved the mitigated negative declaration and amended the zoning ordinance. Fall River Wild Trout Foundation sued, alleging the county violated the California Environmental Quality Act by not sending the mitigated negative declaration to DFG and to the State Clearinghouse. Shasta County Superior Court Judge Bradley L. Boeckman initially accepted the county's defense, which was that the trout foundation had failed to exhaust its administrative remedies by not appearing at public hearings conducted by the Planning Commission and Board of Supervisors. But Boeckman vacated his initial order after a hearing for reconsideration. He then set aside the mitigated negative declaration and zoning amendment because of the county's failure to notify DFG. The county appealed the ruling regarding the CEQA process and Boeckman's setting aside of the mitigated negative declaration. The appellate court said it was unsure whether a person must appear at an administrative proceeding to exhaust an administrative remedy. But even if a person or agency must appear, the county's failure to notify DFG excuses the trout foundation from this requirement in Public Resources Code §21177. The county argued that §21177 mandates that a lead agency notify the public — but not trustee agencies — of the lead agency's intent to adopt a mitigated negative declaration. The court rejected this argument. CEQA guidelines prepared by the Resources Agency require the lead agency to notify public, responsible and trustee agencies of the lead agency's intent to adopt a mitigated negative declaration, the court said. "Our broad reading of the statutory language encourages public action to ensure relevant information is considered by local agencies at all stages in the CEQA review process," Justice Connie M. Callahan wrote for the court. As for setting aside the mitigated negative declaration and the zoning amendment, the appellate court agreed with the trial court's ruling that the county abused its discretion by failing to notify a trustee agency. Not notifying DFG amounted to more than a harmless error, the court said. Citing Rural Landowners Association v. City Council, 143 Cal.App.3d 1023 (1983), the court ruled "that the error is prejudicial ‘where that failure to comply with the law results in a subversion of the purposes of CEQA by omitting information from the environmental review process.'" The Case: Fall River Wild Trout Foundation v. County of Shasta, No. C028650, 99 Daily Journal D.A.R. 1989, 99 C.D.O.S. 1565 (filed February 26, 1999). The Lawyers: For Fall River Wild Trout Foundation: William D. McHugh and Cammie W. Chen, McHugh & Chen, (408) 286-2700. For County of Shasta: Paul N. McCloskey Jr., (650) 851-9700, and Charles E. McClung Jr., McClung & Davis, (949) 499-8424.

It is said that a rising tide lifts all ships. It would stand to reason, then, that California's resurgent economy is uniformly raising construction activity. But tides are, after all, fluid. Swells and surges may drop a boat here or there, depending on the harbor. And so it is with California's building. Some of the trends that we began to notice last year are holding strong, while others have reversed — suggesting that the current boom manifests in ways that are particular to California's varying regions. Don't get us wrong. Real estate and building — in case you have been traveling in the Amazon Basin for the period and had not noticed — have been on a roll for more than two years. With the Construction Industry Research Board finalizing data from the 1997 statistical year, it's now official: that was the year of the big comeback. During that term, annual spending for residential construction reached almost $20 billion, a first since the recession hit the state in 1991. And commercial and industrial building spurted 25% higher than the prior year, the largest year-to-year increase since the 1970s. One counter-intuitive trend we noticed last year is holding true. Look again at San Jose — beaming capital of Silicon Valley and in many ways the epicenter of California's economic recovery. Here, among the tech campuses that sprawl to the south of Stanford University, construction of commercial and industrial space continued to slow. By comparison, commercial and industrial building activity statewide, as measured in dollars spent, surged 21% during 1998 compared with 1997. But in Santa Clara County, it dropped by 2%. A similar pattern was observed in San Francisco, where non-residential building decreased by 5%. In these venerable loci of the state's vaunted economy led by technology and creative enterprises, the construction of space to house these activities is sputtering. So are these regional economies on the wane? After all, we have learned that construction is clearly a lagging indicator of economic growth. For the answer, look to the broader hinterland of these economies. Silicon Valley's core industries are setting up shop to the east and south, in Alameda, Santa Cruz, and Monterey counties. Commercial and industrial construction shot up 14% in Alameda, 142% in Santa Cruz, and 28% in Monterey. Silicon Valley is maturing as an industry center to the point of needing to back-office operations, especially as land prices and lease rates continue to soar close to home. San Francisco's banking industry followed the same course during the 1980s boom. Still, Santa Clara County's $1.8 billion worth of commercial and industrial construction during 1998 was greater than the combined total in Alameda, Santa Cruz and Monterey counties. By far the biggest story on the homebuilding scene was the explosion in the Bay Area spill-over markets of Modesto and Stockton. They are especially interesting because their growth now seems more clearly than ever tied to the expanding economy of the Silicon Valley, whose commercial and industrial development has yet to flow into the Central Valley. In Modesto, construction spending for housing continued a four-year growth trend — this time clocking a 46% increase in 1998 compared with 1997. And the Stockton area, which recently linked to the Silicon Valley via a regionally sponsored heavy rail line, experienced a surge of 56% in homebuilding expenditure. These two markets were only surpassed in homebuilding year-to-year growth by tiny Yolo County, which serves as a bedroom to Sacramento. Yolo grew by 80%. These figures are all the more dramatic when held up to non-residential building activity. Stockton's commercial and industrial building only grew 6% last year, making the region a poster child for Vice President Al Gore's Smart Growth campaign. On the other hand, another trend we noticed a year ago, regarding Central Valley homebuilding, has reversed itself. Last year, we observed that some of the San Joaquin Valley's urban complexes — Bakersfield, Fresno, and Visalia — had bucked a strong state trend by exhibiting ongoing declines in residential construction. Today, that has completely reversed. And so an adage holds: the last into the recession — as the San Joaquin Valley was during California's 90s downturn — is the last out. The Valley's burgeoning agricultural burgs joined the rest of the state in the home-building boom during 1998. Bakersfield made the most startling turnabout, with a 31% increase in dollars spent on housing construction after three years of decline. Fresno and Visalia both logged in with 15% increases, also following a decline during recent years. The Construction Industry Research Board's numbers should squelch any lingering doubts that the latest real estate boom is in full swing. And after six long years of recession, it has been widely regarded as a welcome turnabout. These days, the 5:30 a.m. Altamont Commuter Express train heads out of Stockton for San Jose, and sleepy commuters settle in for 90 or so minutes of pre-dawn shut-eye. As the train rolls past subdivisions sprouted from farmland on the way to the land of tech jobs, one can ponder where this rising tide will next deposit their ship.

Money problems for the Santa Monica Mountains Conservancy earlier this year have highlighted a need among most of the state's six land conservancies to find a long-term funding source to carry out their mission of acquiring, restoring and preserving open space. The Santa Monica Mountains Conservancy, which acquires land throughout Los Angeles County and in southeastern Ventura County, announced it had run out of money to even pay administrative costs as of June 30. A state Assembly budget subcommittee in March voted to give the conservancy $750,000 to cover those costs for the next fiscal year, with a requirement that the conservancy identify long-term funding sources. "Budgets (for conservancies) dramatically declined during the past decade," said Rachel Dinno, director of government affairs for the Planning and Conservation League. "We hope for change with the new governor." Dinno and others said to watch for the May revisions of the state budget, after tax receipts are in. At that time, Gov. Davis' priorities — as well as the state's financial picture — will be clearer. Some conservancies — such as the Coastal Conservancy — benefited from flush state coffers last year and received one time funding increases. However, the Coastal, Santa Monica Mountains, Coachella Valley Mountains and San Joaquin River conservancies lack consistent funding. The Tahoe Conservancy and the Wildlife Conservation Board both have more stable funding bases. The heads of the state's conservancies are now hoping that a state parks bond measure gets on the ballot in March 2000. Four competing parks bond proposals are currently before the state Legislature, with each containing millions of dollars for the conservancies. Belinda Faustinos, chief deputy executive director of the Santa Monica conservancy, said the agency hopes to receive about $60 million under any bond measure that passes. Additionally, a water bond measure sponsored by Sen. Jim Costa, D-Fresno, may contain millions for some of the conservancies. The Coastal Conservancy hopes for $100 million to $200 million in parks bond funding, said Bruce Ahern, executive officer of the agency. The smaller Coachella Valley Mountains Conservancy hopes to get between $2.5 million and $5 million from bonds. California voters last approved a parks bond measure in 1988. A 1992 parks bond measure went down to defeat during the state's recession. A few conservancies receive funding from Proposition 117, a mountain lion protection initiative passed in 1990. During hard times, conservancies have turned to a variety of funding sources. The Tahoe Conservancy receives $5 million a year from the sale of special state license plates featuring Lake Tahoe. A non-profit affiliate of the Coachella Valley Mountains Conservancy sponsors funding raising for an "adopt an acre" program, which has raised $100,000. Bill Havert, executive director of the Coachella conservancy, said the agency has been able to acquire 1,600 acres through purchases and donations, and another 1,200 through conservation easements. Under legislation introduced this session by state Senator David Kelley, R-Idyllwild, the conservancy's mission and boundaries would be expanded to encompass a larger 1.25 million-acre, multi-species planning area across the Coachella Valley that is now being studied for a habitat conservation plan. However, the legislation does not provide the Coachella conservancy more money. Some conservancies have also been able to draw national attention to their particular region and gain additional funding. The Tahoe Conservancy, for example, was highlighted by President Clinton's 1997 Tahoe Summit, which included a $908 million, 10-year plan to restore the lake. The state is putting up more than $200 million. The conservancy will receive about $20 million a year during that period, with money going towards land acquisition and restoration costs. "Compared to other folks, we might be doing OK," said Executive Officer Dennis Machida. But, he warned, "There's still an issue of long-term funding. It's not just a conservancy issue, it's in front of all resource protection and management agencies." The Santa Monica Mountains Conservancy has acquired more than 40,000 acres since 1980, said Faustinos. In the past four years, it has acquired 18,753 acres through donations and 6,300 acres through purchases. Environmentalists have sometimes criticized the group for cutting deals with developers whose projects require viewshed preservation or wildlife corridors. The Santa Monica Mountains Conservancy was hit hard when money from Los Angeles County bond measures, which had provided millions each year, was expended. In contrast to hard times at the Santa Monica Mountains Conservancy, the Coastal Conservancy has benefited from a flush state economy. In the current year, the Coastal Conservancy received $33 million from the state, up from $8 million it received annually during the early 1990s. But the conservancy identified $400 million to $500 million in coastal restoration and preservation projects, Ahern said. Regardless of whether a parks bond gets on the ballot, the Planning and Conservation League is backing a state measure that would give a 50% tax credit to landowners who donate open space, farmland and critical habitat lands to the state. The group has been pushing the measure for at least five years (See CP&DR, March 1995). SB 680, sponsored by Sen. Jack O'Connell, D-Santa Barbara, passed the state Senate unanimously last year, but stalled because of the Assembly's budget battles. Earlier versions of the bill had a $200 million cap on the tax credit. Now, Dinno said, the bill would allow the legislature to set a specific cap each year. Dinno expects the measure to lead to increased land donations. Federal tax law already allows property owners to write off up to 35% of a land donation to the state, and by adding the 50% deduction, Dinno said, property owners could write off 85% of a property's fair market value. One conservancy that has a solid funding source is run by a director who insists it is not really a conservancy. The Wildlife Conservation Board acquires land for the state Department of Fish and Game. It has one of the most stable funding sources, but Executive Director John Schmidt refuses to call the organization a conservancy. The board receives $21 million a year from Proposition 117 funds, which it uses to acquire habitat for mountain lions and deer. Another $750,000 in administrative costs are funded through revenues from horse racing. Contacts: Dennis Machida, Tahoe Conservancy (530) 542-5580 Bill Ahern, Coastal Conservancy (510) 286-1015 Rachel Dinno, Planning and Conservation League (916) 444-8726 John Schmidt, Wildlife Conservation Board (916) 445-8448 Belinda Faustinos, Santa Monica Mountains Conservancy (323) 221-8900 Bill Havert, Coachella Valley Mountains Conservancy (760) 776-5026

In the latest chapter in a long-running story, Contra Costa County and many of its cities appear to be ready to tighten up the county's urban limit line. The county is examining the creation of tighter boundaries in the controversial Tassajara Valley area and in fast-growing eastern Contra Costa County. Meanwhile, the county's Local Agency Formation Commission recently adopted a written policy committing itself to honoring the county's urban limit line wherever possible. Urban limit line tightening comes at a time when Contra Costa officials are engaged in a series of other wide-ranging planning efforts. These include participation in a five-county "Interregional Task Force" with representatives of both the Bay Area and the Central Valley; the initiation of joint planning efforts in the eastern part of the county; and a cooperative effort among the county and representatives of the county's cities to create "quality of life" standards. Located in San Francisco's East Bay region, Contra Costa County is often viewed as a bellwether of California growth management. The county created the urban limit line in 1990 as part of Measure C, which was placed on the ballot by the Board of Supervisors as an alternative to a stricter initiative proposed by environmentalists. (The environmentalist alternative failed.) While in support of the urban limit line concept, environmentalists have complained that the county was too generous in drawing it. The proposed change in the line is proof that the Board of Supervisors is "willing to correct the mistakes of the past," said Tom Mooers, the Greenbelt Alliance's East Bay field representative. The supervisors recently signaled their intention to shrink the urban limit line to exclude 4,000 acres, which encompass almost the entire Tassajara Valley. The revision will also move one ranch near Clayton and another parcel near Brentwood, known as the Veale Tract, outside the urban limit line. However, the supervisors still must decide whether to exclude a 500-acre parcel near Tassajara Valley owned by Shapell Industries, a politically influential developer. County supervisors recently ordered preparation of an environmental impact report on the proposed limit line change. Dennis Barry, the county's director of community development, estimated the EIR will take 12 to 18 months to prepare. Contra Costa's shrinking urban limit line appears to be the result of shifting growth politics along the Interstate 680 corridor near Danville and San Ramon. In the early 1990s, county politics was dominated by the Board of Supervisors' approval of the 11,000-home Dougherty Valley project, located just east of I-680. After extensive litigation, that project is now under construction. More recently, controversy has centered on proposals by various developers, including Shapell, to build approximately 5,000 homes in the Tassajara Valley, immediately adjacent to Dougherty Valley. However, the supervisor from the Danville area, Diane Gerber, has opposed development of Tassajara and a large set of development proposals for the area was withdrawn in 1998. Subsequent to the withdrawal of the Tassajara proposal, Gerber and Millie Greenberg, a member of the Danville City Council, proposed shrinking the urban limit line to exclude all of Tassajara. Their proposal calls for a major "retreat" from the undeveloped hills and valleys east of I-680 and would essentially prohibit development of Tassajara Valley. "I've seen what happened in Los Angeles, the San Fernando Valley, and Orange County," Greenberg said in an interview. "When I moved here 20 years ago, I saw the potential for the same thing to happen here." At the same time that the supervisors were considering the urban limit line shift, the county's LAFCO — stimulated again by Greenberg, who is LAFCO chair — created a formal policy promising to honor the line. "The Contra Costa LAFCO has honored the urban limit line. It wasn't a written policy, and it was supplied in a case by case basis. We decided the time had come for the LAFCO to memorialize the policy," Greenberg said. Greenberg originally proposed a firm LAFCO policy of adhering to the line. But LAFCO's attorneys balked at such an iron-clad policy, saying that because LAFCOs are state-chartered agencies they cannot be bound by local ordinances. Instead, the LAFCO adopted a policy stating that it would "generally" uphold the limit line unless a city or developer makes a case that violating the line "compellingly outweighs the public interest in limiting growth to areas within the urban limit line." "Our attorney said we need to preserve our discretion and flexibility," Greenberg said. The other pending planning efforts in the Contra Costa area are not as dramatic as the urban limit line issues, but they do appear to be important steps toward stronger planning policies. They include the following: o Led by Supervisor Joe Canciamilla, officials from eastern Contra Costa County have begun meeting to discuss mutual concerns about urban growth and economic development. Canciamilla is meeting with elected officials from Pittsburg, Antioch, Brentwood, and the newly incorporated city of Oakley. This area has been the fastest-growing part of Contra Costa County and growth has been a major subject of concern. (CP&DR, XXX 1998.) o Meanwhile, the Contra Costa County Mayors Conference has been working with county officials to draft "quality of life" guidelines to create a set of principles for urban development inside the county's 19 cities. The draft guidelines include such ideas as using sales-tax money to purchase open space as well as provide transportation improvements; creating a countywide hillside development ordinance; and adopting a coordinated policy of permitting growth only in areas where infrastructure to accommodate it already exists. Both city and county officials say that guidelines are important if the county is going to channel future urban growth inside city boundaries. o And finally, Contra Costa officials are working with officials from four other counties (Alameda, Santa Clara, San Joaquin, and Stanislaus) on problems associated with the imbalance of jobs and housing in the Bay Area and Central Valley. The program, known as the Inter-Regional Partnership, is being coordinated by the Association of Bay Area Governments. Gary Binger, ABAG's planning director, said the organization is creating a "checklist" of responsible planning practices that local governments in the five counties will fill out so that the Inter-Regional Partnership will be able to document planning practices that may promote or impede a better regional jobs-housing balance. The Inter-Regional Partnership's board includes one supervisor and two city councilmembers from each of the five counties for a total of 15 members. Greenberg, who is one of the Contra Costa representatives, said she was encouraged by the effort. "The process is more important than the product," she said. "It opens up a line of communication." Contacts: Millie Greenberg, Danville City Councilwoman, (925) 837-3231. Tom Mooers, East Bay field representative, Greenbelt Alliance, (925) 932-7776. Dennis Barry, director of community development, Contra Costa County, (925) 335-1290. Gary Binger, planning director, Association of Bay Area Governments, (510) 464-7902.

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.