Restraint is rarely touted as a virtue in urban design. Often, instructors in the History of Urban Design tend to treat the subject as a series of Greatest Hits - of grand interventions by such magnificently meddlesome people as Andre LeNotre or Baron Haussman or Robert Moses. Teachers in graduate seminars rarely show slides of, say, a Midwestern town and exclaim, "Look at how well the urban designers held themselves back!" The blockbuster mentality makes the current master plan of Mission Bay, the 300-acre redevelopment area in San Francisco, all the more remarkable. Here, after all, is a giant canvas of largely undeveloped waterfront acreage in a major U.S. city. The first impulse (at least for eternal first-year design students, like myself) is to create a miniature city with a hierarchy of major and minor roads, a radial plan with diagonal streets, major and minor axes, formal green spaces with equestrian statues and topiary plantings - in other words, the whole nine yards of Beaux Arts planning, or its poor relation, the New Urbanism. The current master plan, which is the fifth to be done in 20 years, resists the temptation to make a grand statement, however. Instead, the plan by Johnson Fain Partners opts to impose a more-or-less regular grid over the area that corresponds, in the dimensions of the blocks, to the original 10 blocks of downtown San Francisco. And while the restraint of this plan may or may not seem intuitively like the most exciting or most elegant solution, a close examination of the program suggests that this is the most urbane and best integrates this former railyard into the cultural and business life of the larger city. Indeed, the history of planning efforts at Mission Bay shows the tensions between the need to integrate the area into the city, while creating a memorable place in itself. The site itself is also especially tempting for planners, because it sits at the crossroads of two grids: the commercial-industrial grid, on northeast-southwest coordinates, and a residential neighborhood, on north-south coordinates, immediately south of the commercial area. The first four of the five plans done in the past 20 years, in fact, succumb to the temptation to bring the grids together in dramatic juxtaposition. The first plan, done 20 years ago by John Carl Warnecke envisioned a set of high-rise buildings (office and hotel) on either side of the Mission Bay Channel, which conforms to the commercial-industrial grid. The same plan pulled the north-south grid north of 16th street, to bring housing into Mission Bay. The density and height of the scheme aroused public opposition. In the I.M. Pei/WRT scheme of 1985, the designers attempted to maximize the waterfront by carving out an oval-shaped channel south of Mission Bay Channel; ingeniously, this channel, and the resulting island at its center, are the formal devices to divide the commercial grid from the residential grid. This plan was also opposed for its density. And like the Warnecke plan before it, the Pei scheme was largely lacking in open space along the precious bay waterfront. The third scheme by the Mission Bay Planning Team, led by EDAW and Dan Solomon, is an elegant, Beaux-Arts design that provides a clear hierarchy of streets arranged around a linear park or "common." This scheme also sets aside some bayfront land for a linear park. Pleasing as a graphic design, the plan arguably may have created some confusion on the ground, however, because streets are frequently changing in direction. Those same diagonal streets also disturb the views of the bay that could otherwise be available with streets that run straight east and west. The subsequent Skidmore Owings Merrill plan of 1989 is an inelegant truncation of the Solomon-EDAW that reflects the consensus of public hearings. This plan offers a further elongation of the bay front linear park, while providing more space for commercial construction. New uses at Mission Bay, including a new baseball stadium immediately north of the site and a new campus for UC San Francisco, occasioned the fifth and current plan, this time by Johnson Fain Partners. The campus plan, which conforms to the larger scheme, is by the East Coast firm of Machado + Silvetti. As part of a Willie Brown-endorsed ambition to create a "synergy" between a research university and bio-tech businesses in San Francisco, landowner Catellus donated 43 acres of Mission Bay to UC San Francisco. That acreage is located smack-dab in the center of the master plan. The great achievement of the scheme is to knit Mission Bay into the existing fabric of the city, rather than setting it apart as a separate "campus" or miniature city of its own. Faced with the difficulty of planning around a centrally located campus, the Johnson Fain team, led by principal William Fain, chose to organize most of the site with the north-south (residential) grid; the diagonal streets are limited to either side of the channel. Medium-to-high-density residential blocks (with densities averaging 110 units per acre) can be found both north and south of the channel. Happily, the plan preserves the common of the Solomon/EDAW scheme. A small traffic circle at the far west is the anti-climactic device that connects the two grids. What is most remarkable about this scheme is how thoroughly the university campus has been integrated into the grid. This contrasts with the typical University of California campuses, which are master planned as separate cities and communicate poorly with the cities that surround them. In a competition winning scheme, Machado + Silvetti, has responded with a very urbane, non-hierarchical scheme that uses open spaces as the landmarks, rather than big buildings. Jose Begazo, Johnson Fain's project architect, has likened the campus design to residential blocks in Paris. Importantly, the Johnson Fain designers chose to base the new grid on the historic "vara" block, the same dimension of the first 10 blocks of the city laid out by Vioget in 1839. A vara is a Spanish linear measure equal to 2.75 feet. The vara block is 100 by 150 varas, or 275 feet by 413 feet. Johnson Fain principal William Fain argues that the vara block, beyond its historic associations, has near-ideal dimensions for an urban block. The use of the urban Vara block, in fact, helps clarify, if clarity were needed, what precisely makes San Francisco the most walkable city in America: the dimensions of the grid. No longer an abstract issue, the dimensions of grid here become elements in the sensuous enjoyment of cities - providing the energizing sense of movement through a regular tempo of streets and blocks. This new plan, by relying heavily on the grid rather than special effects, promises to extend the pedestrian experience of San Francisco to the newest part of the city. In a sense, the Johnson Fain/Machado Silvetti scheme could be described as the scheme that resists the temptation to be grand, and in favor of being appropriate. Whether or not college lecturers add Mission Bay to their teaching syllabi remains to be seen. Even so, the scheme is a quiet but convincing argument about the power of the grid.

A joint powers authority created to finance the San Diego Convention Center expansion can issue revenue bonds without voter approval, the California Supreme Court has ruled. The $205 million bond issue was challenged in court by Richard Rider, a taxpayer activist who has frequently filed lawsuits against public agencies in San Diego claiming that two-thirds voter approval is required for financing public projects. Most famously, Rider won a state Supreme Court ruling that a sales-tax increase to finance new jails in the county required two-thirds voter approval. (Rider v. County of San Diego, 1 Cal.4th 1 (1991)). In the case of the convention center expansion, however, Rider lost at the appellate court level. To finance the convention center expansion, the San Diego Unified Port District and the City of San Diego created a joint-powers authority called the Convention Center Expansion Financing Authority. Then the Port District agreed to lease the existing convention center and the site of the proposed expansion to the Financing Authority for $2 per year. The Financing Authority then agreed to issue $205 million in revenue bonds to pay for the expansion of the convention center. The next step was for the Financing Authority to sublease the expanded convention center to the city, which then paid rent equal to the bond payments. In addition, the Port District agreed to pay the city $4.5 million a year to help make those "rent" payments. In return, the Financing Authority agreed to return ownership of the expanded convention center to the Port District when the bonds were paid off. In his lawsuit, Rider argued that the Financing Authority was not an independent entity but merely a "shell" established to avoid the two-thirds vote requirement. (Rider made a similar argument in the sales-tax case, which challenged a jail financing entity.) But the appellate court concluded that creating such a shell, even for the explicit purpose of avoiding the two-thirds vote requirement, was not illegal. "The short answer to plaintiffs' argument," wrote Justice Ming Chin for a unanimous court, "is that the Constitution and the City's charter permit the City to avoid the two-thirds vote requirement by creating a joint-powers agency to finance public works projects. Therefore, however we might characterize the financing plan at issue here, we cannot characterize it as unlawful." In support of this conclusion, the appellate court noted that the taxpayers of the city are not ultimately responsible for the bond payments; rather, only the Financing Authority can be called upon to repay the debt. Rider also argued that the state joint-powers law (Government Code §6500 et. seq.) requires a two-thirds vote because the Financing Authority must comply with the same debt limitation provisions that apply to the city. But the appellate court rejected this argument. While acknowledging that a joint-powers agency can only have the same authority that all of its member agencies have, the court also noted that, according to the law, a JPA has debt-issuance power "in addition to the powers common to the several parties" that make up its membership. "When the Financing Authority issues bonds, it does so independently of any common powers," the court concluded. Finally, the court concluded that the Financing Authority's issuance of debt without a vote was not a violation of the California constitution's home rule doctrine. But the court concluded that this argument rested on the assumption that there was no legal difference between the city and the Financing Authority. "We agree that the City and the Port District are the motivating forces behind the transaction here, but we do not agree that in substance the city is issuing the bonds." In conclusion, Chin said: "We are not naive about the character of this transaction.... he City and the Port District have created a financing mechanism that matches as closely as possible ... a city-financed project, but avoids the two-thirds vote requirement. Nevertheless, the law permits what the City and the Port District have done." The Case: Rider v. City of San Diego, No. S058956, 98 Daily Journal D.A.R. 8535 (filed August 6, 1998). The Lawyers: For Rider: Carl Fabian, (619) 692-0440. For City of San Diego: Leslie J. Girard, Deputy City Attorney, (619) 236-7726.

The Los Angeles County Board of Supervisors has begun scaling back Newhall Ranch, a huge project that has been heavily criticized by neighboring Ventura County. Supervisor Mike Antonovich, whose district contains the proposed project, introduced a motion in July to create more open space and possibly reduce the proposed 24,000 home development by 3,500 homes. The board approved the supervisor's motion that the county's staff should implement the proposed changes at its July 28 meeting. As approved by the Los Angeles County Regional Planning Commission in December 1997, the project would have been the largest subdivision ever processed by Los Angeles County. It would have been built on 12,000 acres, and be home to 70,000 people living in five "villages." (See CP&DR, February 1998). Those numbers are expected to change however, with Antonovich's motion. The massive project was originally expected to be located right on the county line with Ventura County. The project's developer, Newhall Land & Farming Company, owns thousands of acres of adjoining land in Ventura County, and officials there feared that pressure to develop that land could develop if the original project is successful. Under Antonovich's motion, a half-mile buffer would be created between the project and the Ventura County line. The small Ventura County communities of Piru, Fillmore, and Santa Paula had expressed concerns that the project would increase a demand for low-cost housing in their communities, as service workers for the new development would need a place to live. But under the Antonovich motion, additional affordable housing units may be added to the Newhall Ranch project. Marlee Lauffer, spokeswoman for the developer, said that entry-level apartments is among the mix of housing to be offered. Antonovich has also asked for consideration of a 100-foot buffer along the Santa Clara River to protect native plants and animals. That river is the last wild river in Southern California. Antonovich is also seeking open space access from the high country portions of the property to the Santa Clara River. Ventura County Supervisor Kathy Long sent a letter to Antonovich on July 31 after the motion had passed. Long said that Ventura County supports measures to preserve natural resources and provide a buffer between the development and Ventura County. She indicated the county still is concerned that specific steps haven't been taken to guarantee that Ventura County won't face a reduction in its water supply. Long asked that the county employees be invited to a working group that develops the specific details of the motion. Lauffer said that three water sources have been identified for Newhall Ranch--new additional state water, historic rights to overflow from Castaic Creek and reclaimed water. A local chapter of the Sierra Club recently filed a complaint with the Public Utilities Commission against the Valencia Water Co., owned by the Newhall Land & Farming Company, alleging that the water company is near or over its water supply limit. A final decision on Newhall Ranch is supposed to be made by the LA County Board of Supervisors in late October. Contacts: Dennis Slivinski, assistant county counsel, Ventura County (805) 654-2196. Marlee Lauffer, Newhall Land & Farming (805) 255-4247.

In the latest legal skirmishes associated with two ongoing natural resource controversies, the Ninth U.S. Circuit Court of Appeals has ruled against environmental groups and in favor of the federal Bureau of Land Management. In both cases, the environmental groups sought to use the National Environmental Protection Act as a vehicle to gain legal leverage over BLM actions on the east side of the Cascades, and both included proposed land swaps between BLM and a private land exchange. In one case, the Kettle Range Conservation Group sought to delay a swap of land between BLM and a private land broker until more environmental analysis had taken place. In the second case, the Oregon Natural Resources Council sought to halt logging and road construction in eastern Oregon and Washington until an environmental impact statement was completed for a revised regional management plan. In each case, a different three-judge panel of the Ninth Circuit ruled against the environmental group, saying that the group had not met the procedural requirements imposed by NEPA. The first case involved Kettle Range's challenge to the so-called "Clearwater" land exchange in eastern Washington. In 1996, the Clearwater Land Exchange Co. approached BLM to propose an exchange of 44 publicly owned parcels totaling 4,500 acres for eight privately owned parcels containing a total of 25,000 acres. (BLM often swaps land of lesser resource value, located closer to urban areas, for more remote land of greater resource value if such a swap would round out the agency's landholdings.) Although the Washington Department of Fish & Wildlife expressed some concern about the wildlife value of the lands BLM would be trading away, the agency conducted an environmental assessment under NEPA and issued a "finding of no significant impact," or FONSI. Kettle Range sued but was denied a stay of the exchange by U.S. District Court Judge Robert H. Whaley. Within hours of Whaley's decision, BLM conveyed half of the 4,500 acres involved. In May - while the merits of the case were pending before Judge Whaley - BLM conveyed another 1,800 acres. On May 19, Whaley ruled in favor of Kettle Range, concluding that the environmental assessment had serious defects. Whaley ordered an injunction on transfer of the remaining 365 acres of property but denied Kettle Range's request to rescind the earlier transactions. Among other things, Whaley faulted Kettle Range for not seeking to "join" Clearwater Land Exchange - that is, make them a party to the lawsuit - and he questioned the value of a rescission since some of the formerly public land had probably been clear-cut anyway. Kettle Range appealed to the Ninth Circuit, which denied the environmental group's request for emergency injunctive relief. On appeal, Kettle Range argued that it wasn't necessary to join Clearwater as part of the lawsuit because, among other things, NEPA provides no right of legal action against them; and also because public rights were at stake. While acknowledging the NEPA issue, a three-judge panel writing per curiam declined to grant the motion. "Here, title to the land already transferred has vested in the private parties," the court wrote. "We have no doubt that an order declaring the executed portion of the land exchange void ab initio would 'destroy the legal entitlement of absent parties'. As a result, this appeal is not amenable to the public rights exception. ... We are also concerned that at this point it might be impractical to attempt to unscramble the eggs. Any such effort might produce results that are in fact not equitable." In a concurring opinion, Judge Stephen Reinhardt noted that Judge Whaley's hearing on the permanent injunction occurred just AFTER the bulk of the land was transferred, meaning much of his analysis had no practical value. "It is important that both private litigants seeking to enforce environmental statutes and judges presiding over environmental cases remain aware at all times of the practical aspects of the litigation," he wrote. The other case involved whether BLM actions on logging and road construction on the east side of the Cascade Mountains should be halted while BLM and the Forest Service developed an ecosystem management strategy for the entire area, as ordered by the Clinton Administration in 1994. In this case, Clearwater Land Exchange and another property owner were allowed to intervene as defendants with BLM. The environmentalists argued that BLM should have imposed a moratorium on logging, road construction, and land exchanges while the ecosystem management strategy was being prepared and an environmental impact statement under NEPA was being done, in order to preserve possible alternatives that might be identified in the EIS. Based on the recommendations of a magistrate judge, Chief Judge Michael R. Hogan of the U.S. District Court in Oregon dismissed the environmentalists' case. The environmentalists appealed but the Ninth Circuit affirmed Hogan's dismissal. The crux of the environmentalists' argument was that BLM's decision not to institute a moratorium constituted a final agency action under the Administrative Procedures Act, thus creating a "challengeable" action under NEPA. Writing for a three-judge panel, Judge Arthur Alarcon concluded that this argument did not hold water. The environmentalists, Alarcon wrote, "cannot point to a deliberate decision by BLM to act or not to take action. Therefore, the district court did not err in finding that BLM's failure to implement a moratorium was not a final agency action." The environmentalists also argued that it could file a lawsuit because BLM had failed to take required action under both NEPA and the Federal Land Policy Management Act. But the court again rejected this argument. "The Eastside EIS will likely result in new data requiring at least an evaluation of the current RMPs (Resource Management Plans)," Alarcon wrote. "NEPA provides no guidance, however, as to the status of the existing plans. In this case, because the Eastside EIS will likely lead to some revisions of current RMPs, it is reasonable to conclude that the RMPs are existing program statements for the purposes of NEPA. The fact that revisions of other RMPs are not necessarily current does not change this result." Therefore, he concluded, the environmentalists have "failed to point to any clear statutory action for purposes of the Administrative Procedures Act." And, he added, the environmentalists had "not identified a clear duty under NEPA or FLPMA with which BLM must comply." Therefore, he said, no "challengeable action" had been taken. The Case: Kettle Range Conservation Group v. Bureau of Land Management, No. 98-35516, 98 Daily Journal D.A.R. 7855 (issued July 20, 1998). The Lawyers: For Kettle Range: Marianne Dugan, Western Environmental Law Center, Portland. For BLM: James R. Shively, Assistant U.S. Attorney, Spokane. For Clearwater Land Exchange: Paul A. Turcke, Moore & McFadden, Boise. The Case: ONRC Action v. BLM, No. 97-35467, 98 Daily Journal D.A.R. 8125 (issued July 30, 1998). The Lawyers: For ONRC Action: Marianne Dugan, Western Environmental Law Center, Eugene. For BLM: Ellen J. Durkee, U.S. Department of Justice, Washgton, D.C. For Clearwater Land Exchange: Paul A. Turcke, Moore & McFadden, Boise.

Reversing a district court judge's ruling, the Ninth U.S. Circuit Court of Appeals has concluded that a Native American tribe is not an "indispensable party" in an environmental group's endangered species lawsuit against the federal government. The case involved the Southwest Center for Biological Diversity's lawsuit challenging the federal government's plan to use more water storage capacity behind Roosevelt Dam in Arizona. The group claimed that the government had not done adequate analysis of the impact on the Southwestern Willow Flycatcher, an endangered species. The Southwest sued the federal government and the Salt River Project and Power District, a federal water project, to force more analysis of the environmental impact of the newly completed Additional Active Conservation Capacity behind the dam. Several Arizona cities, including Phoenix, Chandler, Scottsdale, and Mesa, successfully intervened in the lawsuit because they have helped pay for the additional storage capacity. The Southwest Center did not, however, also sue the Salt River Pima-Maricopa Indian Community. Under a 1988 settlement agreement that permitted construction of the additional water storage capacity, Pima-Maricopa is considered a "non-party with rights". Seeking to intervene, the tribe made a motion to dismiss the suit under Federal Rule of Civil Procedure 19. U.S. District Court Judge Paul G. Rosenblatt in Arizona ruled that the tribe was a "necessary and indispensable party" to the lawsuit and the Southwest Center appealed. In making the ruling, Rosenblatt acknowledged that the federal government has the same interest in the case as the tribe - that is, the interest of seeking that the additional water storage capacity is activated as quickly as possible. Rosenblatt also acknowledged that the federal government could adequately represent the tribe's interest but was unlikely to do so because the federal government opposed the tribe's own motion to dismiss the suit. In a per curiam decision, the Ninth Circuit overruled Rosenblatt. "The district court's approach is circular," the appellate court wrote. "A non-party is 'necessary' even though its interests are adequately represented on the underlying merits by an existing party, simply because that existing party has correctly concluded that it is an adequate representative of the non-party, and therefore opposes the non-party's motion to dismiss. The district court's approach would preclude the United States from opposing frivolous motions to dismiss out of fear that its opposition would render it an inadequate representative." The court also took issue with Judge Rosenblatt's assertion that the federal government may have potentially inconsistent responsibilities under its trust obligations to the tribe and applicable environmental laws. "Neither the district court nor any of the parties has explained how such a conflict might actually arise in the context of Southwest's suit," the Ninth Circuit wrote. In addition, the Ninth Circuit concluded that the cities would help to adequately ensure the tribe's interests are represented. "Although they assert they do not adequately represent the Community, they offer nothing to show that their interests in the AACC or the arguments they would make differ at all from those of the Community," the court said. Judge Rosenblatt also concluded that the tribe is a necessary party because, if it were not included as a party, litigation would ensue under the 1988 settlement agreement to determine what the tribe's rights in this situation actually were. But the court concluded that "ambiguity in the settlement agreement could result in litigation even if Southwest's suit were dsmissed." The Case: Southwest Center for Biological Diversity v. Babbitt, No. 98-15038, 98 Daily Journal D.A.R. 8542 (filed June 9, 1998). The Lawyers: For Southwest Center: Geoff Hickcox, Kenna & Hickcox, Durango, Colorado. For U.S. Government: M. Alice Thurston, U.S. Department of Justice, Washington, D.C.

The Campbell city clerk acted properly in rejecting portions of a referendum petition it sought to place a major development project on the ballot, the Sixth District Court of Appeal has ruled. The case emerged from the city's decision last December to change the land-use designation on a parcel of land commonly known as the "Winchester Drive-In Site" to permit development of a research park proposed by WTA Technology Park, a developer. The city council voted to change 20 of the 24 acres to business park designation, while changing the remaining four acres from commercial to public open space. In January, a group of local citizens opposed to the new project submitted petitions containing some 3,000 signatures seeking to place the Winchester Drive-In decision on the ballot as a referendum. The signatures were contained on 203 separate "sections" of the petition. However, the sections were not consistently worded. In 179 of the 203 sections, the words "of four acres" (referring to the public open space portion of the project) were left off of the petition's recitation of the official title of the ordinance. These words were included in the remaining 24 sections of the petition. City Clerk Ann Bybee concluded that the 179 sections were defective and rejected the petitions even though they apparently contained enough valid signatures to qualify for the ballot. The local citizens sued, seeking a writ of mandate ordering the city clerk to accept and certify all the sections. Santa Clara County Superior Court Judge John Herlihy directed the city clerk to accept the 24 valid sections and reject the 179 defective ones. This left the citizens with only 334 valid signatures - far short of the 1,901 required to qualify for the ballot. The citizens then appealed, making three arguments associated with Elections Code §9238, which governs the question of defective signature petitions. The citizens argued that the petitions were valid because they contained the ordinance number as well as the defective ordinance title; because the petitions met the "substantial compliance" test even with the defective title; and because the trial court assumed "voter confusion" existed when there was no evidence of it. The court rejected the citizens' argument on all three fronts. Regarding the notion that the petitions technically complied with the statutes because they contained the ordinance number, the appellate court agreed that the Elections Code requires that petitions include either number of title. But, the court said, "this does not mean that they were free to include an inaccurate title. ... By choosing to include both the number and title of the Ordinance, appellants had a duty to provide both of them correctly to the voters who would rely on the accuracy of the materials presented." Regarding the substantial compliance argument, the citizens argued that the incomplete title "did not frustrate the purpose" of the Elections Code. But the court disagreed with this argument as well, suggesting that in the absence of the four-acre information, voters could read the title of the ordinance some five different ways. (The title of the ordinance also included the 19.58-acre designation of the remainder of the site.) Finally, the citizens who appealed the city clerk's decision argued: "There could be no confusion in the minds of persons asked to sign the petition as to its purpose, namely, to rescind the industrial designation of the Drive-In property." But the court did not accept this argument either. "Here," the court concluded, "evidence of actual voter confusion was not necessary to the court's determination that the misstated title failed to satisfy the reasonable objectives of the statute." The Case: Hebard v. Bybee, No. H018240, 98 Daily Journal D.A.R. 8458 (filed August 3, 1998). The Lawyers: For Hebard and other citizens: Harry A. Oberhelman III, (408) 425-2041. For Bybee and City of Campbell: William R. Seligmann, Dempster, Siligmann & Raineri, (408) 399-7766. For WTA Technology Park LLC (Real Party In Interest): Myron L. Brody, Rosenblum Parish & Isaacs, (408) 977-0120

Ending a two-year political stalemate, the Legislature has placed a $9.2 billion education bond on the November ballot with conditions that would fundamentally change the way school construction is financed in California. Under the proposed reforms, local school districts would have to cover half the cost of new schools, and the state would suspend the ability of cities and counties to levy school fees in excess of state-mandated limits - a power granted by a series of appellate court decisions collectively known as the Mira doctrine. With the Mira powers gone, a statewide cap on school fees of $1.93 per square-foot for housing and 31 cents per square-foot for commercial and industrial construction would be back in force. Local school boards could impose higher fees in order to meet their 50% match requirement if certain conditions are met. Finally, if the state bond money runs dry, districts that meet those conditions could assess developers 100% of the cost of new schools required by the families who will buy their homes. The developer-fee reforms will essentially shift the authority to deal with developers over school-financing from cities to school boards. They will take effect only if voters approve the bond act, which will appear on the November ballot as Proposition 1A. "It won't be as easy as it was before," said Richard Simpson, education consultant to Assembly Speaker Antonio Villaraigosa, D-Los Angeles, the lawmaker who brokered the bond deal. "If you were a superintendent, you didn't have to justify anything to anybody. If the city council was sufficiently cooperative, you just gave them a number and under their Mira power they imposed it as a condition." An estimated 200 to 250 districts statewide use the Mira powers of their local agencies to levy fees averaging $4 per square-foot on new housing, according to a survey by the Association of California School Administrators. The reforms contained in SB 50 are a victory for the California Building Industry Association, which successfully fought to block any new statewide education bond unless elimination of Mira was part of the deal. "We made the case for complete repeal of Mira," said BIA lobbyist Richard Lyon. "We wanted to annihilate it, blow it up in a nuclear explosion....But the politics of the issue wouldn't let that happen, so we settled for an eight-year suspension." The suspension allows for a return to conditions similar to current law in 2006 if a subsequent statewide bond issue fails. If that were to happen, local agencies could again deny zone changes or general plan amendments on the basis of inadequate school facilities, but could not require higher fees than those allowed under the bill. Proposition 1A is the largest bond act in state history, and would provide $6.7 billion for K-12 school construction and modernization and $2.5 billion for higher education. The bonds would be issued over four years. The developer-fee provisions allow districts to levy fees to cover 50% of land and construction costs if they have conducted a needs analysis and are certified by the State Allocation Board as eligible for state funding. In addition, they must meet at least one of four conditions: (1) Attempted a local school bond in the last four years that received at least 50% of the vote but short of the required two-thirds majority; (2) Have passed bonds equal to 15% of bonding capacity; (3) Have 30% of students on a multi-track year-round calendar, or (4) Have 20% of students housed in portable classrooms. After Jan. 1, 2000, districts must meet at least two of those conditions in order to levy fees above the statewide cap. The adoption of the school bond assured voters the chance to deal with the $40 billion challenge of building sufficient classrooms to house the 5 million additional students who will enter California schools over the next 10 years. But the developer-fee provisions did not satisfy the long-held concerns of cities and the education establishment. The state School Boards Association and the League of California Cities remain opposed to the fee provisions. "The notion of losing your land-use authority shouldn't be too comforting," said League of Cities lobbyist Dan Carrigg. "The state is saying to city councils that they cannot deny a project even if in their opinion school facilities are inadequate." The core problem, he said, is that the program fixes the cost of new schools at statewide averages. If that is not enough in a given area, cities could be forced into having to approve new development without sufficient schools. "Local discretion," he said, "is tossed out the window." Carrigg also notes that the bill grandfathers only those existing school-fee arrangements contained in development agreements. Developers with projects in the planning pipeline that have been conditioned with higher school-impact fees can avoid the higher fees if they delay construction beyond Jan. 1, 2000. Carrigg and other foes, conceding that political realities and the critical need for state bond money make opposition to Proposition 1A impossible, have turned their attention to how to react to the changes once they take effect. Now that the developer-fee statutes are no longer part of a bond package that required a two-thirds vote of the Legislature, they can be amended by simple-majority vote. "If quickly after implementation a number of horror stories crop up," Carrigg said, "we could come back and try to clean up those problems.... That's something I find comfort in." There is also the chance the issue could be thrown back to the courts. As a condition of getting state assistance, a district has to certify that it has sufficient funds, combined with state money, to build a school. But if actual costs are higher, the district may not in fact be able to build. "Then what?" asks Carrigg. "The local government still can't deny a project. Let's see the court that says it's OK to build another 500 homes with no schools." Another alternative, suggested Stephen Hartsell of the Kern County Superintendent of Schools Office, would be for a district to seek voter approval for a districtwide Mello-Roos bond that features a one-time special tax on new construction permits. "I believe it's constitutional," said Hartsell, who is legal adviser to the Coalition for Adequate School Housing. "It passes the sniff test. It's not been done before because under Mira authority you could compel landowners to do that." Lyon of the BIA dismisses the concerns of critics, both about the adequacy of school funding under the plan and the alleged loss of local control over land-use decisions. "Cities can deny a project on any ground that's legitimately out there," he said. "We all know that if you're looking to deny a project there are plenty of opportunities out there... But for at least eight years, local government won't be able to second-guess pre-emptive state law on school fees." The system is structured, he said, to guarantee 100% financing for new schools - facilities that may not have all the amenities some administrators desire, but which meet state standards. The allowable amounts - $10,400 per-pupil for elementary schools, $11,000 for middle schools and $14,400 for high schools - are based on averages from projects built over the last several years. The standardized construction figures do not include the price of land, because real estate costs vary radically among regions in the state. The program provides for land costs based on market value. "We've guaranteed that in all cases the system will finance construction of a school," Lyon said. "With 100% financing, what's the concern? ... We're left with the conclusion that the opposition is for no-growth." Contacts: Dan Carrigg, League of California Cities (916) 658-8222. Richard Lyon, California Building Industry Assn. (916) 443-7933. Steve Hartsell, Coalition for Adequate School Housing (805) 636-4599. Dennis Meyers, Assn. of California School Administrators (916) 444-3216. Timm Herdt is the Sacramento correspondent for the Ventura County Star.

Trial judges may use their discretion in determining whether to award attorney fees to SLAPP suit defendants if the plaintiff voluntarily dismisses the case while the anti-SLAPP motion to strike is pending, the Fourth District Court of Appeal has ruled. In making the ruling, Division 2 of the Fourth District rejected the argument that defendant's attorneys should be either automatically entitled to or automatically precluded from receiving such fees. 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. Many SLAPP suits have a land-use connection - as when a developer sues a citizen or citizen group in retaliation for opposing a development project. In most cases, appellate courts have upheld broad use of the SLAPP motion to strike, which is contained in Code of Civil Procedure §425.16. Though attorneys fees to SLAPP defendants have been granted, appellate justices in another recent case awarded such fees for the first time to a public agency. (See related story on Mission Oaks Ranch, Ltd. v. County of Santa Barbara.) The current case had nothing to do with land use or real estate development. The case involved several tenants in the Victory Apartments in downtown Riverside, led by Kim Shewalter. The tenants claimed that the apartment complex was noisy, violent, and dangerous, and that these problems only increased after the apartment complex was taken over in 1995 by Darlene Coltrain and her son, Arthur. The murder of a reputed gang member and drug dealer in October of 1995 led tenants to move forward with a nuisance abatement action against the Coltrains in small claims court. In November of 1995, they made a demand for payment from the Coltrains in connection with specific incidents, a necessary pre-condition to going to small claims court. This action attracted the attention of the local newspaper, and several tenants, including Shewalter, complained about the situation. After the small claims action was filed in February of 1996, the Coltrains filed a lawsuit alleging trade libel and defamation - but only against the nine tenants who filed the small claims action, not against any other tenants. The Coltrains sought $250,000 in compensatory damages and $1 million in punitive damages. The tenants filed a motion to strike under the anti-SLAPP law, but the Coltrains voluntarily dismissed their complaint 10 days later. Subsequently, the tenants' attorneys, Mark Goldowitz and Jason Walsh, asked for attorney fees under the anti-SLAPP law totaling some $75,000. The trial court awarded attorneys fees of $73,000, and the Coltrains appealed, arguing that because the case had been voluntarily dismissed by the plaintiff, the defendant had not "prevailed" and therefore could not be awarded attorney fees. "Certainly," the appellate court wrote, " do not support defendants' contention that a voluntary dismissal while a special motion to strike is pending should automatically entitle a defendant to attorney's fees. Otherwise, SLAPP plaintiffs could achieve most of their objective with little risk - by filing a SLAPP suit, forcing the defendants to incur the effort and expense of preparing a special motion to strike, then dismissing the action without prejudice." At the same time, the court added, "these policies likewise do not support defendants contention that a voluntary dismissal while a special motion to strike is pending should automatically entitle a defendant to attorney's fees." "We conclude," the court added, "that where the plaintiff voluntarily dismisses an alleged SLAPP suit while a special motion to strike is pending, the trial court has discretion to determine whether the defendant is the prevailing party for the purposes of attorney's fees." In an unpublished portion of the ruling, the court rejected the Coltrains' claim that attorneys fees should not have been awarded because the tenants' statements did not deal with a public issue. The tenants' concerns, the court said, do involve a public issue. The Case: Coltrain v. Shewalter, No. E019258, 98 Daily Journal D.A.R. 8939 (filed August 17, 1998). The Lawyers: For Coltrain: David G. Moore, Reed & Hellyer, (909) 682-1771. For Shewalter: Mark Goldowitz, (510) 835-0850, and Jason Walsh, (909) 784-9310.

In a reversal of recent trends, ballot initiatives to restrict growth appear to be on the upswing - especially in Southern California, where few ballot measures have appeared in recent years. The hotbeds of controversy appear to be in Ventura and San Diego counties, which have historically had more "ballot-box zoning" than other parts of Southern California. In Ventura County, slow-growthers have mounted a coordinated November effort to pass urban growth boundaries in six cities as well as a voter approval requirement to convert agricultural and open space land to urban use in unincorporated areas. In San Diego County, slow-growthers have placed an initiative on the November ballot to downzone some 600,000 acres of rural land in the eastern part of the county. Both ballot efforts have caused considerable consternation among elected officials. In San Diego County, where the initiative has won the support of many city-level officials, the county supervisors representing the area went so far as to propose a state law prohibiting city residents from voting on initiatives that would affect unincorporated areas. In Ventura County, the Board of Supervisors placed an alternative advisory measure on the ballot that calls for studying urban growth boundaries and a new tax to pay for purchase of farmland development rights. Although San Diego and Ventura are the biggest hotspots, several other land-use ballot measures are pending throughout the state. They include: o An initiative to regulate the removal of oak trees in Santa Barbara County - a measure motivated by the clearing of some 1,800 oak trees in the last two years to make way for wine grapes. o A possible urban growth boundary vote in Petaluma, which adopted the state's first growth-control ordinance some 26 years ago. o At least two municipal initiatives in San Diego County. One would place limits on a development project in Santee; the other would require voter approval for any increase in general plan densities in the city of Escondido. All this activity is taking place following a light ballot in June, when only eight land-use-related measures appeared on local ballots - including only one in Southern California. The Ventura and San Diego ballot measures appear to be generating the most political controversy. Both Ventura's Save Open Space and Agricultural Resources and San Diego's Rural Heritage and Watershed Initiative are outgrowths of previous, smaller slow-growth efforts. The Ventura County initiative grew out of a similar measure that passed in the City of Ventura in 1995 and has apparently created a unified network of slow-growth activists throughout the county. The San Diego County effort emerged from a similar measure in 1993 that downzoned private in-holdings in Cleveland National Forest. Ventura County The Ventura County ballot effort, commonly known by the acronym SOAR, is actually a series of coordinated ballot measures designed to create urban growth boundaries around most of the county's cities and protect agricultural and open-space land in unincorporated territory. A measure will appear on the countywide ballot that would require voter approval for any conversion of land from agricultural or open space use to agricultural use. The measure is virtually identical to the Napa County initiative upheld by the California Supreme Court in DeVita v. County of Napa, 9 Cal.4th 763 (1995). SOAR activists gathered 70,000 signatures to place the measure on the November ballot. However, the SOAR activists sought to combine the DeVita-style measure on the county ballot with ballot measures in seven cities to create urban growth boundaries - making SOAR perhaps the most comprehensive and coordinated county-wide land-use initiative effort ever undertaken in California. According to former Ventura mayor Richard Francis, head of the SOAR effort, the intent in adding the municipal urban growth boundaries was to prevent the possibility of having open space and agricultural land simply annexed to cities in order to facilitate their development. (Ventura County has a long-standing policy of channeling almost all urban development into cities.) The SOAR forces ran into trouble, however, by making a mistake in drafting the signature petitions. By including the phrase "Address As Registered" as the top of the petitions, rather than asking signers for their current address, SOAR violated a long-standing legal requirement that signature petitions not invite fraud on the part of signers. Because of this blunder - brought to light in a lawsuit filed by the Libertarian Party - a judge removed the SOAR initiatives from the county ballot and from all seven city ballots. In response, the SOAR activists went to the county Board of Supervisors and all seven city councils and negotiated for those elected bodies to place the initiatives on the ballot instead. SOAR succeeded at the county and in six of the seven cities - though two of the city councils included a "poison pill" stating that the countywide measure must pass for their local measures to take effect. In July, the state Department of Housing and Community Development warned one of the cities - Thousand Oaks - that the urban growth boundary initiative could "unduly constraint housing development" in violation of the state housing element law. The only city where the council refused to place the measures on the ballot was Moorpark, a fast-growing city just west of Simi Valley, where the council has just approved a 3,000-home development project proposed by Messenger Investment of Orange County. SOAR subsequently re-gathered the necessary signatures in Moorpark and a special election will likely be called next year as a result. In late August, SOAR also began a separate referendum drive to place the Messenger project on the ballot. Meanwhile, the county Board of Supervisors has placed an alternative, advisory measure on the ballot - even while voting to place SOAR on the ballot as well. When SOAR began gathering signatures, the county convened a stakeholder group in hopes of reaching consensus on a farmland preservation strategy. In May, this stakeholder group proposed a countywide moratorium on urban expansion while the cities and the Local Agency Formation Commission devised a plan for permanent urban growth boundaries and greenbelts. However, even before the stakeholder group brought its recommendations to the Board of Supervisors, two supervisors held a press conference in which they announced their support of SOAR. After placing SOAR on the ballot, they also placed some of the stakeholder recommendations on the ballot as an advisory alternative - while adding some language about property rights and proposing study of an open-space district that might raise funds to buy land and development rights from farmers. SOAR's supporters say the advisory measure is compatible with their initiative and have not opposed it. Contacts: Richard Francis, SOAR, (805) 485-8888. Rex Laird, Ventura County Farm Bureau, (805) 656-3552. San Diego County Meanwhile, the proposed "Rural Heritage and Watershed Initiative" in San Diego County has created no less political turmoil. The initiative is the latest round in a longstanding battle over large-lot zoning in the mostly rural eastern third of San Diego County. Much of this area is divided into ranchette lots. In the past, slow-growth activists have failed in their attempts to persuade the county Board of Supervisors to downzone the area to 40- and 80-acre lots - though the county did downzone many lots from one and two acres to four and eight acres. The RHWI, as its supporters call it, seeks voter approval of downzoning some 600,000 acres of land to 40- and 80-acre lots. According to Duncan McFetridge, a Descanso artisan who chairs RHWI, the measure would not affect the "country towns," or unincorporated villages designated in the county's planning policies. It is supported by some municipal officials and several leading biologists. However, the initiative has created a major political controversy at the county Board of Supervisors. In February, Supervisors Diane Jacob and Greg Cox proposed a state constitutional amendment that would prohibit residents of incorporated cities from voting on issues that affect only unincorporated areas. However, this proposal met stiff opposition. Then, in April and May, another controversy erupted over the county staff's analysis of the impact of the proposed initiative. While acknowledging that the initiative would have some beneficial effects, such as improved air quality, the county staff suggested that the measure would not help agriculture, while leading to leapfrog development and increasing housing costs. Most significantly, the staff report concluded that the initiative would not eliminate population growth but merely move it around by shifting 54,000 housing units from the unincorporated areas into other parts of the county. Contacts: Duncan McFetridge, (619) 462-7032.

A deal permitting the San Diego County Water Authority to move forward with the purchase of 200,000 acre-feet of water per year from the Imperial Valley appears likely to move forward. On August 31, the last day of the session, the legislature appropriated $235 million in state funds to help the Metropolitan Water District of Southern California obtain additional water for itself- a necessary pre-condition that MWD had demanded for the San Diego deal to go through. The $235 million would be used mostly to line canals in the Imperial and Coachella valleys. The canal linings would conserve 97,000 acre-feet of water, which would then be transferred to the MWD. The appropriation was included in a hastily put-together bill that also included some $210 million to buy the Headwaters Forest in Humboldt County, after a $1.7 billion water bond issue failed on Friday, August 28. It was supported by most Southern California legislators, though opposed by some environmentalists and some fiscal conservatives. Under the terms of the deal, which is being called a water exchange agreement, the Imperial Irrigation District will sell 200,000 acre-feet per year to the Metropolitan Water District, which will then sell it to the San Diego County Water Authority. The Imperial Irrigation District receives 3 million acre-feet (almost a trillion gallons) of water from the Colorado River each year. The 200,000 acre-feet should be enough for San Diego County's growth for next 30 years. The transfer is significant because it will be the largest farm-to-city water transfer in state history, and the largest water conservation project as well, according to the Metropolitan Water District, the giant water agency which supplies much of the water to urban users in Southern California. San Diego got the ball rolling in April when it signed a 45-year deal with the Imperial Irrigation District that sets up a voluntary conservation effort among local farmers to conserve 200,000 acre-feet a year. One way the water will be conserved is by installation of pumpback systems that can capture runoff from fields. Currently, much of that water goes to the Salton Sea. The Water Authority is expected to buy water at a discounted rate for the first ten years of the agreement, and to pay market rates after that. Farmers will be compensated at a rate of $250 per acre-foot of water that is saved. That program needs to win several regulatory approvals before it begins, according to Paul Cunningham, a manager at the Imperial Irrigation District. The district is hoping to begin an initial transfer of 20,000 acre-feet sometime in 1999. MWD has resisted the San Diego deal in the past, largely by demanding that San Diego pay more than $200 per acre-foot to transport the water through the Colorado Aqueduct. Yet the additional water for MWD itself appeared to mute the agency's opposition. The MWD board approved the deal in August with only one vote against - Bonnie Harman of Los Angeles. Her sentiments were echoed by an analyst for the Environmental Defense Fund, Spreck Rosekrans, who told the Los Angeles Times that his group believes the canal lining should be paid for by MWD customers, not by the state. Under a previous water-trading agreement between MWD and Imperial - which was first proposed by EDF - the MWD itself provided the cost. The water bond was intended to help placate various constituencies, but it also touched on numerous controversial issues. For example, the bond was expected to contain language on water transfers through the Sacramento-San Joaquin River delta, always a charged issue in state politics. Northern California voters voted down a proposed peripheral canal in 1982. The canal would have transferred water from the delta for use in Southern California. A draft EIR for delta restoration issued this spring by the CALFED program includes a peripheral canal, or "open channel isolated facility," as one of the options for restoring the delta. Environmentalists have charged that is the preferred option, although the Wilson administration has denied that it is (See CP&DR, April 1998). The new bond measure would have prohibited creation of a peripheral canal. The bond deal failed late in the session, apparently because Republicans and Democrats disagreed over whether to move forward with studies for additional reservoirs in the Central Valley. The MWD touted the San Diego water exchange agreement as a boon for the delta, and contended that the agreement could reduce its reliance on water supplies in Northern California. If the MWD-San Diego deal holds, it will provide San Diego with more control over its water supply. San Diego County gets about 80% of its water from the MWD, and for years locals have worried that the L.A.-based MWD would not share the water in the event of a crisis. San Diego County, which has grown to a population of 2.5 million people, has no alternative source of water. The MWD provides 60% of the water to urban Southern California, and for 70 years has been a powerful player in state water politics. San Diego County's water authority is one of 27 member cities and water agencies in the MWD. The deal follows years of maneuvering by San Diego to secure more water and to assert itself on the MWD board. Several years ago, San Diego demanded 400,000 acre-feet of water, higher quality water, and greater representation on the MWD board. At one point, the San Diego water maneuvers included Texans Sid and Lee Bass, who have been involved in a variety of speculative ventures and corporate takeover attempts. The Bass Brothers' Western Farms company bought over 10% of Imperial Valley farmland between 1995 and 1997. They immediately began seeking urban buyers for the water. But Western Farms swapped its land in the valley for stock in a company called U.S. Filters, and the Basses are now out of the picture. Of the $235 million in state bond money slated to pay for the water accord, $200 million would be used to concrete-line the All American canal and its Coachella branch. That would save 97,000 acre-feet of water, for use by the MWD. Another $35 million would be used for groundwater storage projects along the Colorado River. The federal government and six other Colorado River basin states are insisting the California reduce its reliance on Colorado River water. The Golden State has an entitlement of 4.4 million acre-feet a year, but has been using about 5.2 million acre-feet. U.S. Secretary of the Interior Bruce Babbitt has warned California that it needs to reduce its draw of river water. Contacts: Bob Gomperz, spokesman, Metropolitan Water District, (213) 217-6000. Paul Cunningham, Manager for External Affairs, Imperial Irrigation District (760) 339-9416. Alan Ames, media relations representative, San Diego County Water Authority, (619) 682-4181.

The cities of East Palo Alto and Los Angeles are among 16 cities nationally that have been named Brownfields Showcase Communities. At least 15 federal agencies, including the Environmental Protection Agency and the Department of Housing and Urban Development, took part in selecting the projects. The designation recognizes problem-solving on the part of local government, and entitles the projects to additional federal funding and/or in-lieu services. In addition to funding and in-lieu services, the designation also entitles each community to a full-time "Community Builder" on the HUD payroll. In East Palo Alto, an impoverished community in otherwise affluent San Mateo County, city officials won the designation for efforts to remediate and redevelop a 130-acre redevelopment site. In a statement, federal officials praised East Palo Alto for "showing how a small community can successfully leverage resources through partnerships." "This program takes an economically marginalized and contaminated site, and makes it into a master-planned, R&D business park that could assist the city in job creation," said city manager Michael Bethke. "Otherwise, he added, "We have practically no options right now for (new) jobs in the city." Formerly the site of a pesticide plant, the Ravenswood site is contaminated with arsenic and requires remediation at a cost of $3 million to $5 million. Bethke said city officials hope to attract high-tech businesses to the redevelopment area. The Showcase Communities designation entitles the city to $1.6 million in funding and in-lieu services, including funds to pay the salary of the EPA staffer. Other services to the city include consultations with other federal agencies and assistance in grant writing. The City of Los Angeles won Showcase status for its proposal to remediate and develop two brownfield sites along the edges of the Alameda Corridor. A proposed 20-mile rail line between the harbor area and container yards southeast of downtown Los Angeles, the Alameda Corridor is intended to ease traffic congestion on major arteries serving the ports of Long Beach and Los Angeles. Los Angeles has identified two sites: the 20-acre "Prison Site," named for now-abandoned plans to build a state prison there, and a 208-acre "Goodyear" site, also known as South Central Renaissance Industrial Park. For the latter project, the city has received $400,000 in EPA funds and has applied for a $1.7 million HUD Brownfields Economic Development Initiative, according to Lillian Kawasaki, General Manager of the City of Los Angeles Environmental Affairs Department.

Local governments in Nevada do have the standing to intervene in a lawsuit against the Interior Department, challenging the environmental impact process on a proposed water rights acquisition program, the Ninth U.S. Circuit Court of Appeals has ruled. The case involves the Interior Department's attempt to implement a water rights acquisition program designed to settle complex and longstanding water rights issues associated with the Newlands Reclamation Project in western Nevada. Under Section 206 of the Fallon Paiute Shoshone Tribes Water Rights Settlement Act of 1990, the Interior Department is supposed to acquire enough water rights to increase and permanently sustain approximately 25,000 acres of wetlands in the Lahontan Valley. This required Interior to draw up a plan to buy 55,000 acre-feet of water from the Carson Division of the Newlands project, as well as 33,000 acre-feet of water through other methods. Interior prepared an environmental impact statement on the water rights acquisition plan but not a programmatic EIS on the combined impact of this plan and other federal programs. Churchill County and the City of Fallon, which stood to lose water under the acquisition plan, sued to force the programmatic EIS, as did Sierra Pacific Power County. The Ninth Circuit ruled that the city and the county have standing to sue but the power company does not. Churchill County v. Babbitt, No. 97-15508, 98 Daily Journal D.A.R. 7735 (filed July 15, 1998).