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March 21-28, 2007

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Nūz: Santa Cruz County News Briefs

GENERAL PAIN

"I really hope we don't have to update our General Plan again," worried Santa Cruz County Supervisor Jan Beautz several years ago at a morning public hearing, her fingers tightly gripping a pencil and her lips in a slight quaver. "We don't, do we?"

Such is the trepidation that general plans induce. And it's due primarily to their consequences, not their content.

In fact, the elements of general plans, required of all California jurisdictions under state law, are--though data-intensive--actually fairly simple. Tell us, says the state, about your policies regarding land use, circulation, housing, conservation, open-space, noise and safety. Then tell us about your local population those policies are designed for, how well they're working, and, to the degree they're not, what you're going to do about it. Many general plans therefore consist in large part of sections fundamentally saying: This will go here, that will go there and the buffer between them will be X.

There are, however, three complicating factors.

First: all general plan elements must conform. If planners erroneously map a planned road expansion without noticing that it intrudes 50 feet into a future housing site, the lawsuits can go on for a decade.

Second: once general plans are adopted, they're set in stone; they control so many other routine local activities that many experts refer to them as local constitutions.

Finally: the stone that fresh plans are set in immediately begins to erode. Nature alone guarantees that river plains shift, springs erupt, hills slide, slopes change angle and trees topple into housing. Meanwhile, populations age, demographics shift and economic changes leave old buildings empty and new ones straining against the old rules.

These changes in turn produce hardship waivers, variances, exceptions, exemptions and development explosions. Citizens start complaining that "nobody's respecting the general plan!" Eventually the local planning commission complains to its board or council, essentially saying, "We can't deal with this any longer," and at that point, the rewriting plan begins. The average general plan--aside from housing elements, which must by law be updated every five years (in practice, every six or seven)--runs out of steam in 10 to 20 years.

The kettle began running dry for our neighbor on the crescent bay, Monterey County, in around 1999. That's the point at which the old 1982 General Plan became sufficiently inadequate to changes since its adoption--changes such as the expansion of Cannery Row, the rising world-class status of Pebble Beach and the 8-to-10-mile traffic jams in Carmel Valley--that working with it began to feel to most like wresting with an enraged King Kong trapped in a set of tightly taped yard-waste bags.

And so the rewriting of the Monterey County General Plan began.

Seven years and 7 million dollars later, it's still not finished and has produced such vehement rhetoric that the most commonly spoken words concerning it are "unbelievable," "incomprehensible" and "shameful," and the struggle has produced as thick a tome of cautionary tales as any ongoing event in recent history.

Tale one: the price of undefined goals. We're just going to modernize the 1982 document, county supervisors told the public in 1999. But then, courtesy of endless public workshops and assorted private pressures, entirely new approaches such as a set of 12 Guiding Objectives emerged. By the time the first version--commonly known as GP1--emerged in 2001, it bore so little resemblance to its 1982 forebear that milkman jokes ran rife.

Tale two: the cost of prematurely backing down. Regardless of the fact that GP1 was indeed a fairly modern plan, supervisors sent it back for additional 1982'ing, and the result, GP2, was at best a clumsy mix. Somewhere along the line, between GP2 and GP3, the county Planning Commission and Board of Supervisors were sufficiently sick of it all to appoint a Refinement Group to finish things up.

Within months that too had splintered. On Aug. 29 of 2003, former Santa Cruz County Supervisor Gary Patton, at that time the executive director of Landwatch (Monterey County's self-appointed land use watchdog group), wrote to inform the board that Landwatch would "cease any further participation in the Monterey County General Plan Update Refinement Group."

Why? Because, Patton later stated, they were 'a business and development alliance' functioning "behind closed doors." Plus, in his and Landwatch's view, the emerging GP4 looked like it had an inadequate Environmental Impact Report, or EIR.

By 2004, Landwatch and several allies had grown disgusted enough with such defects that they decided to show the county board just how things ought to be done and, behind closed doors, put together their own plan, with an EIR beyond reproach, since there was none at all.

On Jan. 11, 2005, Landwatch and cohorts presented their Community General Plan, held open workshops to publicize it and began asking voters to sign an Initiative to put it on the ballot, often approaching pedestrians and shoppers by asking, "Are you concerned about affordable housing?"

Difficulties with that approach, however, soon appeared. Several analysts, including Bay Area Economics, showed that the county's finally finished GP4 and its ordinances would clearly "yield more very low, low, and moderate income housing units than the [Landwatch] Initiative;" in fact, if adopted, the initiative would produce "a halt or slowdown in the provision of both market rate and affordable housing units."

And that was just the start. Legal analyses pointed out that Landwatch's "community" plan, which requires countywide votes to change even a single lot split, violates state housing and subdivision laws.

And housing analysts, scanning the Landwatch plan, found that while every housing unit built for the next 25 years would have to apply for a "housing allocation" permit, single family homes, built by the richest, were mysteriously exempt. And many of the new regulations that Landwatch claimed would help prevent takeover of the county by the well-heeled were, oddly enough, entirely waived in the county's highest-heeled areas: Carmel, Del Monte Forest and Big Sur.

What transpired over the next year is probably predictable enough to need no particular elaboration.

Suffice it to say that the county has, by now, finished GP4 and put it on the June 5 ballot for approval or, separately, repeal.

Landwatch has collected enough signatures to get a "Quality of Life, Affordable Housing, and Voter Control Initiative," pushing its Initiative version of a general plan, placed on the same ballot. It has also sued Monterey County for an allegedly defective GP4 EIR.

And a third force, Plan for the People, a group consisting primarily of farmworkers, farmers, vintners and Libertarians, has emerged to take on Landwatch, both publicly and legally. It regularly holds public rallies featuring signs blaring Landwatch--Elitists! Gary Patton, no slouch in the field of rhetoric, has filled Landwatch's website with dire headlines claiming that 'Democracy Is Under Attack.'

Which brings us to tale three--the one most emblematic of the entire GP4 struggle, and running like an ethnic aquifer right underneath it: namely, the tale of two languages.

In Monterey County, 50.8 percent of residents are Latino, and 93 percent of them (some 47.3 percent of the general population) above the age of 5 live in households the U.S. Census identifies with the characteristic "language other than English spoken at home."

Yet when "grassroots citizen action" group Landwatch began circulating its alternate general plan petition and accompanying information in 2005, it did so only in English.

Within a month, Spanish-speaking citizens began to protest. When Landwatch failed to produce Spanish versions of its materials, a group of those citizens sued Landwatch, on Feb. 24, 2006, for election-materials violations. It simultaneously filed suit against the county, demanding that it refrain from placing any resulting initiative on the ballot.

Now, the latter lawsuit presented a significant problem for Monterey County. As far back as 1971, the county had been caught, several times, in what appeared to be racially based discriminatory electoral processes. It had therefore fundamentally been placed on a federal voting rights watch-list, and remained so.

Nor had time changed the county's status. As recently as 1996, no less than the U.S. Supreme Court reminded Monterey County that it needed to hew to a higher standard. Writing for the court in LOPEZ V. MONTEREY COUNTY, CALIFORNIA, Justice Sandra Day O'Connor prominently noted that the county was "a covered jurisdiction under ... the Voting Rights Act," one prohibited "from enacting or seeking to administer" voting procedures "that have a discriminatory purpose or effect," and--rather curtly--that "the County has not discharged its obligation."

Given that context, the county, on advice of counsel, acted with the utmost speed. On Feb. 28, 2006--a mere four days after the lawsuits were filed--the Monterey County Board of Supervisors voted to refuse to place the English-only Landwatch initiative on any future ballot, no matter how many signatures were secured.

Thus began court battle No. 1. Landwatch, engaging its own Latino representatives, filed suit to force the board to place the petition on the June 2007 ballot. The board refused. So all parties trundled off to federal district court in San Jose.

On March 23, 2006, Judge James Ware rendered his decision on the Landwatch petition. "The Initiative involved," he said, "was presented to the voting public for signature in violation of the Voting Rights Act because it was printed and circulated only in English," and therefore "cannot be legally adopted by the County or presented to the County voters."

And so, he ruled, "The County is permanently enjoined from processing, certifying or adopting the Initiative, and from placing it on a ballot for a future County election, unless or until being first properly circulated in compliance with the Voting Rights Act." It's both languages or nothing.

Landwatch, not about to accept that ruling, launched a significant public campaign to build public resistance to that decision. Using his daily KUSP 'Land Use Report,' Gary Patton hit hard, day after day.

On March 29, 2006, he claimed that Landwatch documents could not be translated into Spanish, as "it is technically impossible to provide a direct 'equivalence' between the two languages.

In further broadcast statements, Patton asserted that the very concept of multilingual translation was a burden potentially beyond human physical endurance, since "in some jurisdictions there would need to be five or more translations," which would make it "virtually impossible to carry around the petition physically."

And on four successive editions (April 10, 11, 12 and 13, 2006) of the radio show, Patton asserted that, as a result of Ware's ruling, the "entire state" of California was now in a "constitutional crisis" involving "the effective suspension of the initiative and recall powers reserved to the people."

Things got even worse for Landwatch when in June of 2006 the federal Ninth Circuit Court of Appeals declared all election materials within the circuit not offered in locally prominent languages to be impermissible.

On Sept. 19, 2006, however, the tide reversed. The Ninth, under pressure from localities' attorneys in a half-dozen jurisdictions whose voters had circulated petitions and now found them invalid, reruled on the issue and decided that the Voting Rights Act didn't actually apply to privately circulated petitions but only to those printed by public agencies; petitions "not provided by the State or its subdivision[s]" were exempt from the multilanguage requirement.

Landwatch and its allies reveled in that ruling calling it "a victory for all Monterey County voters--Latino and non-Latino alike." So said Alexander Urciuoli, spokesman for the Salinas-based Citizens for Responsible Growth, who added that "we are delighted with the Ninth Circuit's resounding decision" relieving GP4 opponents from having to translate its petitions into "the minority language" spoken by 50.8 percent of the county's population.

Whether that victory will stick, however, is unknown. The Ninth Circuit court directed the original judge, James Ware in San Jose, to make the all the recent rulings line up. He reheard the case last week, and his decision is imminent.

Meanwhile, Landwatch and allies are circulating a new set of petitions to repeal recent county supervisors' actions. These, too, are printed solely in English. That's OK, though, says Landwatch executive director Chris Fitz, since the Ninth Circuit's ruling means that the petitions are now, at least for the time being, "on solid legal ground."


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