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November 2009
California Oak Report
The CEQA Game
Presented below are excerpts from Fighting Bad Development and Urban Sprawl in the California Courts produced by Rural Canyons Conservation Fund, an excellent six-chapter booklet regarding the California Environmental Quality Act (CEQA) and the author’s experiences in opposing bad development approvals in very developer-friendly Orange County. This pamphlet is not intended to provide legal advice but it effectively illustrates the CEQA process and the general actions necessary for citizens to pursue legal remedies for unlawful projects.
Fighting Bad Development and Urban Sprawl in the California Courts
In preparing this guide, the author hopes that citizens like you will educate themselves about the law, insist that local governments start obeying it and take them to court when they don’t. At present they frequently run roughshod over the law, secure in the knowledge that there are few, if any, public advocates watching them and fewer still who will take them to court.
The Deck is Stacked Against You
You’ve probably found that the local system is set up to make it difficult to influence or challenge development decisions. Public hearings are usually held in the daytime, during normal working hours. And the people who somehow manage to get to public hearings frequently face intolerance or outright contempt from the officials who run these hearings.
Also, access to county supervisors or city council members - wide open to developers - is limited or impossible for the public. And at the state level, your legislator in the assembly or senate is probably working a good percentage of his or her time advancing the developers’ agenda: Toll roads, development agreements, elimination of school fees on new construction, repealing or weakening environmental protection laws, promoting new taxes to benefit developers and restricting your ability to challenge a development in court.
If you simply show up at a city council or board of supervisors’ hearing expecting that your concerns will be heard and respected, you are probably in for a shock. The developers saw you coming years ago. They designed the system of land use approval and maintain control of it. Unless you can pose a credible threat of litigation and, if necessary, follow through on it, you might as well spare yourself wasted time and frustration and just stay home.
On the positive side, citizens have sued local government and won. It can be done. While it’s true that developers often have unlimited funds with which to lob attorneys at you, it doesn’t follow that the party with the biggest lawyer always wins. If the law has clearly been violated, as it often is, you have a chance of winning.
Don’t Be Intimidated
At the final public hearing you’ll likely be treated to some interesting theatrics. Expect a full court press of propaganda. The taxpayer-supported, developer-controlled planning department of your city or county will have put its finest rationalizers on the project to invent the most glowing excuses possible for approving the project. Audio-visual special effects, testimonials from local real estate agents, business people and thinly disguised shills masquerading as "Jack/Jill Average Citizen" will usually be part of the program.
Expect proponents testimony to be greeted with enthusiastic thank yous from the council or board members. "It’s really nice to hear someone come up and testify in favor of something for once." Your comments and those of other opponents, however, will likely elicit a much cooler response, so be prepared. They’re deliberately trying to create an atmosphere where anyone saying anything negative about the development will feel as intimidated and uncomfortable as possible. They’re hoping you won’t say anything.
True, you may be characterized as an extremist and a crank. "Well, if everyone took the position of no-growthers like you, we wouldn’t have any houses for people to live in or roads for people to drive on." Don’t cooperate with their attempts to smear you. Avoid general comments about how they’ve systematically destroyed the environment and undermined the quality of life by mindlessly approving almost every single development that’s come before them. Or that if everyone were like them, we’d probably all be dead by now from environmental poisoning or oxygen starvation.
Comments like these won’t help your purpose. Keep in mind that you’re there to exhaust your administrative remedies, such as they are, so you can go to court later and to build your case by entering necessary evidence into the record - not to publicly debate politicians who almost certainly have already decided how they’re going to vote.
More Games
Almost always, the developers and their government cheerleaders will haul out the before-and-after maps, proclaiming "improvements and refinements" in the project that were made after "extensive public hearing and community input" and pronouncing the planning and CEQA processes successful.
This is the old automobile sticker-price tactic applied to planning, designed to distract attention from the project’s actual environmental impacts and a euphemistic way of saying that the original proposal was simply a bigger piece of garbage than the final one. Maybe they’ve cut down the number of houses they originally said they wanted to build, mutilated one less ridgeline or extirpated one less species.
Of course, the developers are in complete control of this game. They knew how many houses they really wanted to build in the first place. They knew they could initially propose double that amount and then later reduce it so as to reap great publicity and political gain, while still getting as much as they originally wanted or even more. But fortunately for the public, these public-relations maneuvers have absolutely no legal significance in the final analysis. The impacts on the existing environment of the project as finally approved are all that matter. Your response to the inevitable hype should be to focus attention on such impacts, pointing out that the initial "buildup" or any intermediate proposals have no legal importance whatsoever.
Know the players
Despite appearances, land use entitlement is usually a "top down" process. The developer starts at the top, approaching the city council or board of supervisors to try and sell the project.
What these local politicians want is to stay in office or move up a notch in the next election. Generally, they do this by not making any waves. Even so, they are often perfectly willing to turn their backs on an entire room full of irate constituents and vote for an unpopular development project. Why is this? Because, unless the project is so big that it affects all the voters in the next election, they know they can stay in office by using developer campaign bucks to discourage any serious opposition or buy more votes than they lost approving the project. Still, politicians generally don’t like bad publicity either.
You may have thought that your city or county planning staff diligently and dispassionately reviews the developer’s plans to see if they comply with all the policies, laws and regulations. But they don’t. Before these foot soldiers even get their hands on the plans their boss, usually called the "community development director" or the "planning director" has met with the politicians and gotten their marching orders to get the project through the system. Their job is to package the private for-profit project as a great public benefit, a gift to society from the generous developer. They then pass the orders along to their foot soldiers, who are told to develop a rationale for approval, a sales pitch.
Finally, you might in the exercise of your civic duty run into the "Junior Fire Marshall," usually a neighbor the developers recruit as a shill to undermine your efforts. This person will show up at every public hearing and claim to represent the community in support of the project. And the developers are very good at identifying and co-opting these types. They stroke their egos by inviting them to private meetings and inviting their "input" on issues they’ve actually already settled. If parkland has to be dedicated, for example, they will allow the Junior Fire Marshall to claim that he or she "pulled it off" for the community.
For more information and to read the entire booklet, visit the Rural Canyons website.
Announcements
The Department of Forestry and Fire Protection sponsors the Project Learning Tree (PLT) program in California with support from the California Community Forests Foundation. During the past 20 plus years, PLT has hosted thousands of professional development workshops for California educators - classroom teachers, youth leaders associated with nature centers, youth and faith-based organizations, and other community members who are committed to the goal of increasing their children’s understanding of our complex environment, especially those issues focusing on trees and forests. The annual Arbor Day poster contest is now under way, the theme being Trees are Terrific...and Energy Wise! The contest is open to individuals, classes or youth groups - but targets only children in the fifth grade. For more information and contest materials, go to http://www.arborday.org/kids/postercontest/index.cfm or email Kay Antunez.
Merchandise
Is Santa bringing your youngsters Grandmother Oak this year? Grandmother Oak is a young children’s story book written by Rosi Dagit, a certified arborist and technical advisor to the California Oak Foundation, and illustrated by Gretta Allison. Grandmother Oak lives near Los Angeles in Topanga State Park. Thousands of school children meet her each year as part of the park education program. Proceeds from this book provide funding to plant Grandmother Oak’s acorns in Topanga State Park. Twenty-two pages soft back. $6.95 ($6.26 members) plus sales tax, shipping and handling.
Our Gift to You
Out on a Limb with Mistletoe, reprinted from Bay Nature magazine, October – December 2007. Seasonal, and free. Just email your request for this one-page article with colored photos about this plant, one species of which is often seen growing in oaks.
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