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.

Elsewhere Near River City … West Sacramento hopes to become home to a minor league baseball team in little more than a year. The 12-year-old city is forming a Joint Powers Authority with Yolo and Sacramento counties to issue $40 million worth of taxable bonds to build a 10,000-seat baseball stadium near the Sacramento River. The new owner of the Oakland A's Triple-A franchise, now located in Vancouver, B.C., wants to play ball in West Sacramento in April 2000. Under the plan all three entities approved in February, Sacramento County will guarantee two-thirds of the annual $3.3 million bond payment with its motel bed tax revenues, explained Geoffrey Davey, Sacramento County chief financial officer. West Sacramento will pledge its general fund, and Yolo County will pledge its property tax increment from area development. Stadium revenues will pay off the 30-year notes. The team must average 3,500 fans for each of its 71 annual home games to generate enough money to retire the debt, according to a West Sacramento analysis. West Sacramento also intends to form a Mello-Roos District to issue $8.5 million worth of bonds for infrastructure near the stadium and spend another $1.5 million of city funds on similar needs. "Economically, it doesn't mean a whole lot," West Sacramento Mayor Christopher Cabaldon said of the baseball stadium. "There are some very localized impacts that we expect to see within a few blocks of the stadium. For us, it's a quality of life issue. It's a good, quality, family-oriented entertainment asset." Sacramento County Supervisor Roger Dickinson agreed the desire to add a regional entertainment attraction is driving the deal. However, the chance for three jurisdictions to work together is enticing because regional cooperation is needed to address tougher issues, such as flood control, air pollution, traffic congestion and economic development, he said. Significantly absent from the deal is the city of Sacramento. The city for more than 10 years has pursued a big-league baseball or football stadium next to Arco Arena, in the north end of town.

The state's new Attorney General, Bill Lockyer, ran for that office as a friend of the environment, and early indications are that he intends to have a high profile on environmental issues. Lockyer mentioned protection of natural resources in his inaugural speech, and, in one of his first official acts, announced greater involvement by his department in a lawsuit to ban personal watercraft, such as Jet Skis, from Lake Tahoe. Since then, the Democrat from Alameda County has requested more money to beef up environmental enforcement efforts. Environmentalists also hope he'll make enforcement of the California Environmental Quality Act a high priority. Early indicators show that he's planning to do so. The new attorney general met with environmental groups early in his administration, and in mid-February he addressed a lunch meeting for attorneys sponsored by the natural resources subsection of the State Bar of California. Lockyer's aides were quick to emphasize that the office will see a shift towards more environmental litigation. "He will be looking for bigger cases and more independent actions," than former Attorney General Dan Lungren, said Special Assistant Attorney General Patricia Wynne. "He's told deputies to come to him with cases to protect the environment." Some environmental groups have suggested that the new attorney general direct his office to reinstitute review of negative declarations and notices filed by local and state lead agencies, as was done under Attorney General John Van de Kamp, said Tara Mueller, an environmental attorney in Oakland. Under Van de Kamp, the AG's office often commented on the adequacy of local CEQA reviews, Mueller said. But the practice stopped when Lungren was in charge. "The office did essentially no CEQA enforcement under Lungren," said Cliff Rechtschaffen, an attorney and law professor who worked in the Environmental Section of the Attorney General's office under both Van de Kamp and Lungren. "It still got the complaints, but did nothing." The additional money sought for the department will provide a more stable funding source for the environmental prosecution unit, said Lockyer press secretary Hilary McLean. The requested $778,000 will fund six staff members, including 4 1/2 lawyers. In the past, attorneys were borrowed from other sections of the AG's office, but the new money will allow the department to fill vacant positions in the environmental law section. The environmental unit "will feel somewhat liberated, I hope," Lockyer said during his Sacramento speech to the bar members. Lockyer was asked during the same meeting with attorneys whether his office's revocation of an Attorney General's opinion issued under Lungren on reproductive rights might extend to other AG opinions, such as a 1995 opinion defining the scope of "take" under the California Endangered Species Act. Lockyer, after an initial discussion with his staff on the "take" opinion, reported that it was fairly reasoned, and he said opponents might want to go the Legislature for recourse instead of his office. Still, Lockyer said he welcomes comments on the opinion. The "take" opinion, number 94-605, involved whether habitat removal is prohibited under CESA, since the definition of "take" under California's Endangered Species Act is not as all encompassing as the definition under the Federal ESA. The attorney general told the bar group that he wants his office to play a bigger role in land use planning and water issues. He said that his office primarily does defense-type work, but both antitrust and the environment are two areas where the AG has the power to initiate actions. Lockyer's predecessor, Dan Lungren, emphasized crime-fighting during his eight- year term, but he did settle several large environmental lawsuits with such companies as Southern Pacific and Unocal. Lockyer in interviews and his inaugural address has said that he still intends to fight crime vigorously. In his inaugural speech, he said, "Whether children are injured by predators or injured by pollution of the water they drink or the air they breathe, we must and will choose justice." In the Lake Tahoe lawsuit, Lockyer filed papers one day after taking office, asking to intervene in a federal lawsuit brought by personal watercraft manufacturers. They challenged an ordinance banning Jet Skis and other small boats that is scheduled to take effect this spring. The ban is designed to prevent pollution from MTBE and other contaminants that the engines of small watercraft can spew into the water. Prior to Lockyer's taking office, the Attorney General's office had filed a friend of the court brief in support of the ban, but Lockyer said he wanted "more substantial involvement in the lawsuit." Contacts: Tara Mueller, Environmental Law Foundation, (510) 208-4555. Cliff Rechtschaffen, Golden Gate University School of Law, (415) 442-6674. Patricia Wynne, Special Assistant Attorney General, (916) 323-8271.

State and national politicians are jumping on the anti-sprawl bandwagon like never before, with no less than Vice President Al Gore launching a "livability initiative." Gore's proposal, which President Clinton mentioned during the State of the Union speech, promotes mass transit, open space conservation and development within existing cities. Pundits expect Gore may make the issue a cornerstone of his presidential campaign. Although new California Gov. Gray Davis has yet to discuss the subject in detail, California lawmakers are likely to deal with a number of anti-sprawl proposals this year. Advocates of "smart growth" believe now is the time to advance their agenda because of the change in the governor's office. "Just suddenly, it has taken off like I've never seen it," said Judy Corbett, executive director of the Local Government Commission. Her Sacramento-based organization of mayors, city council members and county supervisors has been writing about smart growth principles for eight years. Why are others paying attention now? "I think the effects of urban sprawl are increasingly visible. And the New Urbanism movement started making the mainstream press," Corbett theorized. The details of proposals from government agencies and interest groups vary, but the basics are similar — concentrate growth in existing communities, limit further development of open spaces and farmland, and create alternatives to the single-passenger automobile. "If nothing else, I think it's coming onto the radar screen of a lot of people," said Rachel Dinno, the Planning and Conservation League's natural resources director. "I think we are all talking about the same thing." The PCL devoted part of a recent report on saving California's environment to prevention of urban sprawl. Whether they think halting sprawl is smart or stupid, land use policy analysts took note when the subject qualified for the State of the Union address. The fact that Clinton — who has proven masterful at recognizing what people care about — mentioned the topic indicates the public perceives problems with common development patterns, said Gary Patton, chairman of the California Futures Network. In his State of the Union speech, Clinton said, "All communities face a preservation challenge as they grow and green space shrinks. Seven thousand acres of farmland and open space are lost every day. "In response, I propose two major initiatives: first, a $1 billion Livability Agenda to help communities save open space, ease traffic congestion, and grow in ways that enhance every citizen's quality of life; second, a $1 billion Lands Legacy initiative to preserve places of natural beauty all across America — from the most remote wilderness to the nearest city park," said Clinton, who credited Gore's leadership of the proposals. The livability initiative combines and expands existing programs to create a $10 billion package. About $6 billion would go for expanded mass transit, road upgrades and developing alternative regional routes. Other portions would assist state and local governments with funding parks, improving water supplies and developing abandoned industrial sites. Tax credits would leverage private investment in targeted areas. The Lands Legacy proposal contains nearly $600 million for grants and loans to state and local governments and nonprofit land trusts to purchase open space, protect farmland and assist endangered species. Another $440 million would buy land for national parks and other conservation purposes. Sam Staley, director of the Urban Futures Program with Reason Public Policy Institute, contended the Livability Agenda is based more on politics than real threats to open space. He decried the "federalizing" of what has long been a local decision-making process. Staley authored a report in late January, called The Sprawling of America: In Defense of the Dynamic City, that argues the smart growth movement is based on a poor understanding of the facts. For instance, only 5 % of the nation's land is developed, and the loss of farmland has declined during the 1990s compared with the 1960s, according to Staley's research. Although he shares the Democratic Party with Clinton and Gore, Governor Davis has remained publicly mute on smart growth. "Right now, he is not focussing on these things," said Patton of the California Futures Network. The CFN describes itself as "a statewide coalition dedicated to economically, socially and environmentally sustainable land use." The organization conducted a "Smart Growth Summit" recently that attracted 700 government officials, environmentalists and advocates for various causes. Several state leaders, including Lieutenant Governor Cruz Bustamante, Treasurer Phil Angeles and Resources Secretary Mary Nichols, addressed the gathering. But the governor was absent. "The Davis administration is hanging back," added the Local Government Commission's Corbett. Still, Corbett sees other allies in Angeles, a Sacramento developer who has embraced the New Urbanism, and Nichols, who has strong environmental credentials. Hoping to get the attention of California's first Democratic governor in 16 years, the Planning and Conservation League and 26 other environmental groups in February recommended the state take the lead in what are often seen as local issues. "We must act now to curb sprawl. State government can make the rules that govern land use planning, financing and development in California's communities," the PCL report states. PCL recommended the state provide incentives for more compact development within identified boundaries, strengthen local agencies' ability to redevelop brownfields, link water supplies and development, help towns revitalize older neighborhoods, and provide money for protecting agricultural land. Dinno conceded that city councils and boards of supervisors have traditionally handled many of these issues, but, she said, the state should demonstrate leadership. "All jurisdictions need to be involved in this issue. It's not just a local issue, and even if it was the locals would be looking for money from the state," she said. But Timothy Coyle, president of the California Building Industry Association, warned, "We've got to be careful that smart growth doesn't mean dumb ideas." For instance, urban growth boundaries — which are part of most smart growth strategies — can cause leapfrog development, Coyle said. He pointed to Silicon Valley, where rapid job growth combined with limitations on housing construction caused real estate prices to escalate, driving development to Tracy, Manteca and Modesto. Thus, many Silicon Valley workers must live more than an hour's drive away in the Central Valley. Any growth strategy must contain provisions for adequate housing. Only about half as many housing units get built statewide as are needed, Coyle added. Developers are willing to build infill projects, but state and local government should streamline the approval process, ensure streets are safe and schools are good, provide decent infrastructure, and exercise common sense when enforcing environmental regulations, Coyle said. When those issues are resolved, builders will strongly consider the higher-density, infill developments that smart growthers say they want, he said. Even then, builders must convince local decision-makers and prospective home buyers, he added. "When we ask for higher densities in many jurisdictions around the state, we meet ‘no' from the decision-making body, or they hear ‘no' from their constituents," Coyle said. He pointed to a proposal to increase density in a portion of central Fresno from 2 units an acre to 2.6 units an acre. After great public outcry, the city rejected the upzoning. PCL's Dinno said middle-class families who for decades fled cities for the suburbs are taking a new look at cities because of proximity to jobs and cultural amenities. Infill development done properly can compete in the marketplace with houses in new subdivisions, she contended. Patton said suburbia's attraction is waning. "I think when we look back on this 100 or 200 years from now," said Patton, "it will be like the Industrial Revolution. When people are spending four hours a day in the car getting to and from their job, when they are apart from their family and community for that amount of time, there is a huge social cost." People on all sides are closely watching a $16 billion transportation bond bill introduced in February by State Senate President Pro Tempore Phil Burton. The bonds would go before voters in $4 billion batches beginning in 2000. The all-important details of what the money would buy remain open for debate. Patton noted that development, labor and business organizations backed Burton's initial proposal. These groups often want the state to make money available with few strings attached, he noted. Both Patton, who also serves as executive director of LandWatch Monterey County, and Dinno said the state should reinvest in existing transportation systems before providing money for roads in undeveloped areas, perpetuating sprawling development. Contacts: Judy Corbett, executive director, Local Government Commission, (916) 448-1198. Gary Patton, chairman, California Futures Networks, (831) 375-3752. Rachel Dinno, natural resources director, Planning and Conservation League, (916) 444-8726. Sam Staley, director, Urban Futures Program, Reason Public Policy Institute, (310) 391-2245. Timothy Coyle, president, California Building Industry Association, (916) 443-7933.

The Del Mar City Council had enough evidence to deny a permit for a two-story home addition based on aesthetic grounds only, the Sixth District Court of Appeal has ruled. In so doing, the court reversed San Diego County Superior Court Judge Lisa Guy-Schall's decision to grant the homeowner a writ of mandate requiring the city to issue the permit. In overturning the trial judge, the appellate court found that Del Mar had not violated the landowner's civil rights under federal law. Significantly, on one issue the court relied entirely on the opinions of neighbors and city commissioners as "substantial evidence." The case involved a proposal by Breneric Associates and Stephen Scola to build a two-story addition to an existing single-family residence. Beginning in 1993, Breneric sought a permit from the city to build the addition. Under Del Mar rules, a design review permit is required prior to construction. The city's Design Review Board denied the permit, stating in particular that the use of glass panels on the roof deck was incompatible with the existing architecture of the building. The DRB also claimed that the siting of the addition would create a crowded condition incompatible with the surrounding neighborhood. Breneric appealed to the City Council, which remanded the case back to the DRB. The DRB again denied the permit, and Breneric again appealed to the City Council, which this time denied the permit as well. Breneric sued, claiming that the city violated the landowner's civil rights under 42 U.S.C. 1983, the federal Civil Rights Act. The lawsuit also sought a writ of administrative mandate to compel Del Mar to issue the design review permit. Judge Guy-Schall sustained Del Mar's demurrer to the Section 1983 action, effectively giving the city victory on that point. The judge also concluded there was insufficient evidence in the administrative record to support the denial of the permit under the city's ordinance and granted Breneric the writ of administrative mandate ordering the city to issue the permit. Del Mar cross-appealed, arguing that substantial evidence did indeed exist and the writ should be overturned. On appeal, the court affirmed Guy-Schall's first ruling and overturned her second, giving the city total victory in the case. Among other things, the court concluded that the heightened scrutiny required under the so-called Nollan/Dolan line of cases does not apply in this case. Breneric had not made this point but the Pacific Legal Foundation did so in an amicus curiae brief. The Nollan/Dolan line of cases requires a heightened level of judicial scrutiny in exaction cases. (For more discussion, see the report of the California Supreme Court's ruling in Santa Monica Beach Ltd. v. Superior Court, CP&DR Legal Digest, February 1999.) The appellate court concluded that Nollan/Dolan does not apply because the case did not involve an exaction of land or money from the landowner. On the substantial evidence question, the court addressed both the glass-panel question and the siting issue. On the siting issue, the court noted that the proposed addition left no sideyard setback on one side. "The testimony of neighborhoods and the opinions of the DRB members constitute substantial evidence." On the question of the glass panel, the court noted that Del Mar had found that the design did not coordinate with "color, materials, architectural form and detailing of the existing structure." One architect called the existing house "a unique example of a Victorian cottage" and concluded that a glass panel was inconsistent. On the Section 1983 complaint, the court found that Breneric had not made its case. Among other things, the court found that Breneric's lawsuit did not allege that Del Mar had deprived Breneric of a protected property interest; the DRB permit was a discretionary permit. The court also found no evidence that Del Mar had acted arbitrarily because the city had a sound policy basis for its decision. In addition, the court found that the facts of the case did not support the contention that the city denied Breneric equal protection or that its taking claim was ripe. The Case: Breneric Associates v. City of Del Mar, No. D024838, 99 Daily Journal D.A.R. 469, 99 C.D.O.S. 389 (issued December 15, 1998, published January 15, 1999). The Lawyers: For Breneric: Joseph S. Carmellino, (619) 622-8377. For City of Del Mar: Mark A. Potter, (619) 455-9737.

Downtown Riverside appears to be using the legal system as a revitalization tool - not by suing anybody, but by recruiting new courthouses. Last year, Riverside County agreed to finance construction of a $21 million federal courthouse in the same neighborhood as the county's Hall of Administration and County Courthouse. And in January, the Fourth District Court of Appeal moved from its longtime headquarters in downtown San Bernardino to a new courthouse adjacent to the federal site. The Court of Appeal move is considered a coup for Riverside, but it came as a blow to the already beleaguered downtown of San Bernardino. Division Two of the Fourth District has been located in downtown San Bernardino since it was created in 1966. But with a caseload that has doubled since 1987, the court has outgrown location in a former Safeco Title Insurance building there. The new building, which cost $7.2 million to build, is located at the corner of Lime and 12th in downtown Riverside. The new building's location was "driven by politics," Presiding Justice Manuel Ramirez told the San Bernardino Sun. The court receives approximately half of its workload from each county, with Inyo County accounting for a small portion of the caseload. The Riverside courthouse is the second new Court of Appeal courthouse constructed in a downtown location in recent years. Division Six of the Second District Court of Appeal - the only division located outside of Los Angeles - built a new courthouse in downtown Ventura after many years of renting office space there. The federal courthouse in Riverside will be located at the corner of Lemon and 12th. The county is building the courthouse with county-issued bond funds and leasing the property to the federal government for 15 years. The county had previously purchased the U.S. Bankruptcy Court building to accommodate its own expanding courtroom needs. Public Debt Issuance Stays Constant Public debt issuance in California remained constantly in 1998 at approximately $40 billion, according to new figures from the California Debt Investment and Advisory Commission. Local bond issues accounted for $28.7 billion, while state issues accounted for $11 billion - figures little changed from 1997. However, local agencies increased their debt in several areas, including housing, redevelopment, and hospitals. On the local front: o Local debt issuance for housing more than doubled in 1998, to approximately $2.1 billion. Most of the growth came from an increase in multifamily issues. In 1997, local agencies raised $600 million for multifamily housing on 91 bond issues; those figures grew in 1998 to $1.56 billion on 150 bond issues. Single-family debt rose from $475 million on 26 issues to $572 million on 29 issues. o On the commercial and industrial development front, local debt issuance remained constant at approximately 24 issues for $88 million. o Multiple-purpose redevelopment bonds rose by approximately 30%, from 77 issues for $1.28 billion in 1997 to 105 issues for $1.69 billion in 1998. o Local hospital and health-care bond issues rose from $1.29 billion (on 36 issues) in 1997 to $1.51 billion (on 42 issues) in 1998. o Local public works bond - the largest single category of local bonds - dropped slightly from $12.89 billion to $12.56 billion. o Local school facilities bonding dropped. For K-12 public schools, the figure dropped from $3.6 billion to $2.9 billion. College and university bonding remained more or less the same. Statewide bond issues were also about the same but had some overlap, including the following: o State public works bonding dropped from $2.6 billion to $1.4 million, largely because multiple-purpose public improvement projects dropped from $900 million in 1997 to almost zero in 1998. o As with local agencies, state agency bonding for housing projects increased substantially. But unlike local projects, the state funding went mostly for single-family housing. State housing bonds rose from $1.4 billion to $2.5 billion, with single-family bonds rising from $1.2 billion to $2.4 billion. Multifamily housing remained approximately the same at $147 million. o State education bonds, like their local counteparts, dropped somewhat. State school bonding dropped from $2.89 million to $2.27 billion. K-12 public school bonding dropped from $980 million to $820 million, while higher education bonding dropped from $1.88 billion to $1.13 billion. These trends are not likely to continue, however, given the passage of Proposition 1A, which authorized the issuance of some $9 billion in new state school bonds. More information on 1998 debt levels is available at the CDIAC web site, http://www.treasurer.ca.gov/cdadocs.htm.

No sooner had the fast-growing San Joaquin County city of Tracy settled a lawsuit and agreed to set up a joint powers authority on traffic issues than it was hit with a second lawsuit challenging its water supply and other facets of another huge development. In December, Tracy, Alameda County, the nearby city of Livermore, and the Sierra Club announced a settlement to a lawsuit brought over traffic issues raised by the city's approval of the 5,000-unit Tracy Hills project. Under the settlement, the JPA will be set up along with a developers fee of $1,500 per unit to pay for traffic improvements in Tracy and in nearby Alameda County. At the same time, the Tracy City Council approved another development, called South Schulte, which is expected to have about 6,000 homes. The developer of the project agreed to the same traffic mitigation fees. But the Sierra Club then filed suit on January 19 claiming that the city didn't have adequate water supplies or wastewater treatment for the new development. Eric Parfrey, a Sierra Club member and environmental planner who lives in Stockton, said the Sierra Club also had water concerns involving Tracy Hills, but settled the case because the traffic fee solution was so attractive. A separate case over the water supply for Tracy Hills is still pending. That lawsuit was brought by the County of Fresno because a water district there is supposed to supply the Tracy Hills water. A summary judgment motion on the Fresno County case was set for a late January hearing in Sacramento County Superior Court. "It's unclear how much staying power they're going to have," Parfrey said. "They wanted the Sierra Club not to settle on Tracy Hills." Parfrey said the water supply is important because the Tracy City Council has approved 20,000 new units of housing. Current plans are for the city to grow from a population of 48,000 to 160,000 in the next thirty years. Housing prices are low by Bay Area standards. Water supply "is really the Achilles heel for the ambitious growth of Tracy," he said. The U.S. Bureau of Reclamation warned the city in May 1998 that new developments could not be guaranteed a water source from the Delta during drought years. Tracy is about 70 miles from San Jose, and as Silicon Valley's housing and rental market has heated up, many workers there have moved to San Joaquin County. Commutes are as long as two or three hours each way. Most commuters drive on Interstate 580, which runs through neighboring Alameda County and the city of Livermore. Some are also beginning to commute via a new train service that began in late 1998. Alameda County, which has also seen significant growth of office parks in the Pleasanton area, has seen thousands of new vehicles on Interstate 580. Tracy officials argue that they're addressing a jobs-housing imbalance caused by the explosion of jobs in some Bay Area counties. Steven Meyers, Tracy's attorney in the Tracy Hills lawsuit, said that the JPA will study regional transit problems. At a later date, San Joaquin County may also join the JPA. Lakeside Tracy Associates, developers of Tracy Hills, will pay $174,000 for the study. Parfrey praised the JPA. "As a planner I loved it...a regional planning solution was what was called for," he said. The $1,500 per residence traffic fee is expected to generate $7.5 million. One-third of the money is slated for Alameda County projects, and the rest is slated for traffic projects in the Tracy area. Construction of the Tracy Hills project is slated to begin in a year. Meyers said the traffic fee could be placed on other developments when data is developed on their traffic impacts. But under state law, the settlement agreement couldn't arbitrarily set a fee for future developments, he said. If the other proposed units in Tracy adopt the traffic fee, another $22.5 million will be available for traffic improvements. The Tracy Hills settlement also contains a number of trip reduction elements. The developer of the project can seek a reduction in fees for providing such things as land for park and ride facilities, shuttles to transit lines, carpool/vanpool subsidies, and telecommuting programs. Under the settlement, the governmental parties are to "consider regional implications for major development projects" and "to recognize those regional environmental impacts that extend beyond jurisdictional boundaries." Parfrey noted that job growth in Santa Clara County, home of Silicon Valley, slowed last year. Tracy may be approving more units than the market needs, he said. The South Schulte lawsuit by the Sierra Club that the city's EIR failed to adequately analyze or mitigate a number of impacts including added traffic, storm drainage, impacts of leapfrog development, air quality, water supply and wastewater treatment and disposal. The developer of the South Schulte project includes Samir Kawar, who was part of a development group that tried unsuccessfully to develop the 5,200-unit Tassajara Valley project in Contra Costa County. In 1997, Kawar was identified by the San Francisco Chronicle as a Jordanian parliament member and former minister of water and transportation in that country. The application for Tassajara Valley was later withdrawn after widespread public opposition. The state's Fair Political Practices Commission fined Fakhry Kawar, an American citizen who manages his brother's properties, $22,000 for laundering $7,700 in campaign contributions to five Contra Costa supervisor candidates in 1992, according to the paper. Contacts: Steven Meyers, attorney for Tracy, Meyers, Nave, Riback, Silver & Wilson (510) 351-4300. Eric Parfrey, Sierra Club member, planner, (510) 420-8686 The case: The Sierra Club v. City of Tracy, case no. CV006772.