YOLO SUN OPINION :
Unlawful collusion between City of Woodland and Paul Petrovich has them now stumbling together headlong into a key legal and political bear-trap. So, they are pulling an odd and meritless, public-relations stunt, by filing with the state Supreme Court an absurd request to draw a drape over their political and legal suffering.
The Gateway 2 legal case, lost by City of Woodland and Petrovich with a February 28 ruling of the state Court of Appeals for the Third District, has several levels of very keen public interest: The Opinion itself, of major legal significance, statewide; quite curious reactions of the City and its relevant attorney; coverage being interestingly mishandled / slanted by the Daily Democrat.
This column will analyze and explain in (hopefully) accessible detail the fairly dense, often perplexing legal landscape presented by this court case, clearly the most legally significant in modern city history.
Legal Fame Comes Calling
City of Woodland is about to become famous, within statewide legal / political circles, as a municipal defendant guilty of more than a half-dozen violations of the California Environmental Quality Act (CEQA), just from this one recent project — perhaps some kind of legal record.
Because of the breath, depth and flagrance of these multiple, often compound CEQA violations, eminent environmental organizations: Environmental Defense Fund, Planning and Conservation League, Sierra Club, Coalition for Clean Air, Center for Environmental Health, etc., etc., formally requested that our state appellate court publish (as significant precedent) its Opinion in California Clean Energy Committee v. City of Woodland (C072033), and the appellate court agreed, soon issuing its publication order.
Woodland has here and now attracted widespread legal / political attention usually associated with obtaining a deserved reputation as a small town where sly and crafty developers like Petrovich own City Hall, to the great and everlasting distress of both its community and environment.
Statewide CEQA litigation will soon be repeatedly recognizing and citing to courts and adversaries the various ways Petrovich and his political pals on Woodland City Council tried to undermine our legal processes and degrade our community future.
Such Fame, Since A ‘Zorro’ Came Calling
Because California Clean Energy Committee — literally, suddenly came out of nowhere, like a “Zorro, riding out of the night, when the full moon is bright,” capably protecting our community from such perpetual harms, we have by this hand escaped a grisly, community planning fate.
In fact, this occasion of the defeat of Petrovich is a true watershed event, portending a genuine emergence / vitalization of community awareness that civic matters have not been well for many years within Woodland City Hall. So now, Woodland has an unfortunate legal reputation to show for it.
Apparently, such legal and political drama was required to help upend the pernicious influence of Petrovich upon our City Hall. Otherwise, there was no stopping them transforming our city — according to his own designs.
Interestingly, a major, successful contention of this CEQA lawsuit — that a Gateway 2 project should receive planning consideration / designation as being – “mixed-use” — in nature (both commercial and residential) — has according to city planning staff now been (perhaps) accepted (so far) by Petrovich, within the city’s new (2015-35) General Plan.
The land upon which Gateway 2 would have been built, is quite likely to be designated for mixed-use in our new General Plan. Petrovich has not yet objected, is likely cowed by his huge legal loss, demonstrating instant progress through this CEQA lawsuit.
Petrovich spent in excess of $200,000 defending his Gateway 2 project; according California Clean Energy Committee (CCEC) counsel, this case might well have been settled over a few of these sorts of concessions.
However, Petrovich demanded to dig an expensive, time / city-resource consuming grave for his Gateway 2 project; then, intimidatingly lashes out about an unfriendly business climate, complaining that he’s been unfairly treated. Sliminess here reaches a new nadir.
The unlucky gamble attempted by Petrovich and City of Woodland, is one of expecting that no determined CEQA lawsuit would ever be filed. But this time, they crapped-out, then doubled-down and crapped-out again.
City’s Attorney, Whitman F. Manley, Files A Very Curious Request
Getting their thorough and well-deserved, legal clock-cleaning at the state appellate court, Petrovich, Woodland City Council and its Gateway 2 attorney, local resident Whitman F. Manley (alongside relevant interests representing local agencies), remain in an obvious state of childish denial.
Manley, on behalf of: Himself, his law firm, the City, the League of California Cities, plus the County Supervisors Association of California, has on May 2 filed with the state Supreme Court a Request for Depublication of the Gateway 2 Opinion. This Request does not challenge the Opinion (supposedly), only the legal ability to refer to it as a judicial precedent in other cases.
This ten-page Request by Manley is truly an astonishing legal document, below examined and explicated in substantial detail (alongside appellate court Opinion), since it reveals so much about these sordid legal affairs.
Manley’s repeated accusations, if they had any merit, that the appellate court supposedly erred on at least three important issues, would certainly predicate a Petition for Review to the state Supreme Court. However, these sour-grapes complaints by Manley don’t hold water; so, it seems that desperately contrived swinging at legal straw-men in this Request becomes a way to wrap affairs in a spin of denial.
Denial here has already had some public-relations-type traction, with the Daily Democrat news article headlined with the utterly bogus claim that the Gateway 2 Opinion of the appellate court was somehow being: “Revisited.”
Manley Upbraided Ten Times By Appellate Court
Of immediate and revealing interest along these lines, is the stark fact that Manley (representing the City and Petrovich) — is upbraided ten separate times — by this appellate court Opinion, for either: Repeatedly and strangely misreading the administrative record of this case, or else for unconscionably misconstruing basic legal precedent within his arguments.
Here again, we may have a new legal record: Judicial admonishment / criticism, on the verge of an accusation of bad-faith practice, averaging every five pages of this forty-nine page Opinion.
A vivid example: “[T]he city’s additional assertions of forfeiture of the CEQA issues are troubling because they are contradicted by the record. In a case where the appellate record is 18,010 pages, claims regarding failure to assert a point during the EIR process should be more carefully presented.”
“[T]roubling” is a polite way of the appellate court saying to Manley: Because of your serialized misrepresentation of the case record, you appear to be in bad-faith with your legal work. Perhaps, Manley needs some rest, with which to best clear his legal head from these awkward travails for Petrovich.
Publication Request From Lozeau Drury LLP
The Gateway 2 Opinion was issued on February 28. On March 14, Richard Drury of Lozeau Drury LLP sent a Request for Publication to the state appellate court, representing seven prominent environmental organizations: Center on Race, Poverty and the Environment; Center for Environmental Health; Coalition for Clean Air; Fix the City, Inc.; Natural Resources Defense Council; Planning and Conservation League; The Sierra Club.
Quoting from Drury’s Request:
“The Opinion meets the criteria for publication because it involves several legal issues of continuing public importance to California citizens, applies several existing legal rules to a new set of facts, and makes a significant contribution to the legal literature. [Citation to relevant state court rule.]
“The Opinion specifically addresses six critical issues under the California Environmental Quality Act [ ], that, if published, would provide important guidance and clarification to members of the public, environmental organizations, and public agencies.”
Drury’s Request continues, in pertinent part:
“First, the Opinion makes a significant contribution to CEQA law by providing guidance on the level of detail required to exhaust issues during the administrative process under CEQA[,] clarify[ing] that an issue is exhausted [preserved for appellate review] so long as the ‘specific objections’ are raised by any member of the public.
“Second, the Opinion provides a significant contribution to CEQA law by specifying that implementation of a mitigation measure may not be delegated to the private project proponent [Petrovich]. This holding is a logical extension of [a major CEQA precedent].
“Third, the Opinion provides a significant contribution to CEQA law by defining the scope of improper deferred mitigation. The Opinion holds that a mitigation measure for urban decay is inadequate since it was ‘lacking an “criteria for success” in abating urban decay, the measure does not ensure any actual mitigation.
“Fourth, the Opinion provides a significant contribution to CEQA law by defining the scope of ‘fair share fee-based programs. [ ] The Opinion makes it clear that fair-share fee-based mitigation is insufficient if it ‘does not estimate the cost to prepare the fair share plans,’ or identify the ‘mitigation measures or strategies called for in these plans.’
“Fifth, the Opinion provides important guidance in the area of ‘alternatives analysis.’ The Opinion clarifies that a lead agency [City of Woodland] must analyze a reasonable project alternative proposed by the public, and if the agency rejects the alternative, the rationale for rejecting the alternative must be supported by the [CEQA Environmental Impact Report].
“Sixth, the Opinion provides important guidance on the analysis of energy impacts under CEQA — an issue of heightened importance due to well-established concerns related to global warming. The Opinion clarifies that a lead agency [City of Woodland] may not disregard energy consumption impacts by blindly referring to compliance with state energy standards [which] do not address several impacts that are within the scope of CEQA[, and] analysis is required of a project’s energy consumption as well as mitigation measures and alternatives[.]
“The Court’s Opinion is clear, well-written, and rich in factual detail and legal analysis. Its publication will greatly assist California’s public agencies and the public by providing direction in several area that require clarity.”
Manley’s Request For Depublication
Manley describes the Gateway 2 Opinion as “inconsistent with settled law, [ ] not grounded in CEQA, the CEQA Guidelines, or existing case law[, claiming that it] will create unwarranted difficulties for municipalities [and counties].”
Manley goes on to write that: “[T]he Opinion is an unproductive addition to CEQA precedent,” and that “three erroneous conclusions [ ] warrant depublication.”
These three conclusions involve major aspects of this Opinion: Urban decay mitigation, alternatives analysis and energy analysis. If such conclusions were actually “erroneous,” they would clearly establish solid legal grounds for a Petition for Review to the state Supreme Court, rather than simply requesting depublication.
Manley On Urban Decay Mitigation
On his first count, Manley argues that: “[T]he City adopted mitigation measures that would lessen the significant and unavoidable urban decay impacts to the extent feasible. [ ] Public agencies ought not to be punished for taking this approach.”
The whole legal point here involved, is whether these mitigation measures “would [indeed] lessen” impacts “to the extent feasible.”
As shown just below, the Opinion rules that these measures plainly — did not – lessen urban decay impacts — to the extent feasible.
Thus, Manley brazenly mischaracterizes this basic issue to the state Supreme Court. There is here no “erroneous conclusion” by the appellate court; it properly concluded that Gateway 2 mitigation processes were variously and egregiously unaccountable for protecting the environment.
Manley reiterates using case law about “all feasible efforts / steps” being taken, “a sufficient degree of information” being considered by the City regarding Gateway 2 — when the Opinion firmly and obviously rules directly to the contrary.
“In simple terms, the City never claimed to have solved the urban decay problem,” asserts Manley. But, did it lawfully consider this basic subject and take all feasible steps to reduce the severity of significant environmental impacts?
The Opinion says: No.
Manley adds, threateningly: “Because the Opinion makes it legally risky to adopt mitigation measures of uncertain efficacy to address significant unavoidable impacts, some agencies may simply choose not to do so.”
So, if local agencies are no longer able to circumvent CEQA with sham mitigation measures, they won’t do anything at all, simply depending upon aggressive statements of overriding considerations to shove through adverse projects, the more difficult / risky to mitigate, the more likely mitigation will be ignored?
This plainly is a very awkward policy path for the League of Cities, etc., to advise be taken: If we cannot be sloppy and unaccountable, we won’t address adverse environmental impacts of development.
Does Manley genuinely represent the public-policy positions of these statewide public-agency organizations upon this key point?
The Opinion On Urban Decay Mitigation
Quoting from the Opinion: “When a project will result in an adverse change to the physical environment, CEQA instructs that ‘the agency “shall provide that measures to mitigate or avoid significant effects on the environment are fully enforceable through permit conditions, agreements, or other measures. [ ] The purpose of these requirements is to ensure that feasible mitigation measure will actually be implemented as a condition of development, and not merely adopted and then neglected and disregarded.” [Citation to statute and case law.]
The Opinion continues: “[The City Council] Resolution approving the project does not identify any specific mitigation measures nor does it provide any standards [ ] in deciding whether the developer-proposed mitigation is sufficient. ‘This is inadequate. No criteria or alternatives to be considered are set out. Rather, this mitigation measure does no more than require a report to be prepared and followed, or allow approval [ ] without setting any standards.” [Citation to case law.]
“Given the City’s recognition that Gateway II will cause urban decay, it was required to do more than agree to a future study of the problem,” states the Opinion, “Even if [such a] study is subject to administrative approval, it is analogous to the sort of post hoc rationalization of agency actions that has been repeatedly condemned in decisions construing CEQA.” [Citation to case law.]
“A showing of sufficient demand for the goods sold by a particular planned tenant for Gateway II does not address the issue of whether urban decay in downtown has been sufficiently alleviated. Moreover, the City’s solution to “either require additional mitigation or require an alternative use” lacks any standard to ensure sufficient abatement of urban decay. [ ] Lacking any ‘criteria for success’ in abating urban decay, the measure does not ensure any actual mitigation.”
After reviewing several other relevant issues, the Opinion declares that “the City has failed to adopt adequate mitigation measure to address urban decay impacts as required under CEQA.”
CEQA Mixed-Use Alternative Analysis
“Alternatives Analysis” is at the very core of CEQA.
As the Opinion states: “The California Supreme Court has explained, “CEQA’s substantive mandate that public agencies refrain from approving projects for which there are feasible alternatives or mitigation measures is effectuated by [the legal provision that] a decision-making agency is prohibited from approving a project for which significant environmental effects have been identified unless it makes specific findings about alternatives and mitigation measures. [ ] This requirement ensures there is evidence of the public agency’s actual consideration of alternatives and mitigation measures, and reveals to citizens the analytical process by which the public agency arrived at its decision.”
It is starkly apparent that this fundamental element of CEQA has been slyly circumvented with City approval of Gateway 2.
The City unlawfully shifted its legal rationale for declaring the supposed “infeasibility” of having residential uses within the Gateway 2 project, from economic reasons, to environmental reasons, without admitting it or explaining why.
Manley argues through case law, that the City can depart from this project’s Environmental Impact Report, at its sheer discretion, making its own separate findings, upon “substantial evidence in the record,” as the legal basis for declaring infeasibility / inferiority of the mixed-use alternative.
The key to this dispute, about which Manley fails to be persuasive, is the word: Substantial (evidence in the record).”
Thus, the Opinion strongly disagrees:
“Although the draft and final EIRs rejected the mixed-use alternative on grounds of economic infeasibility, the City approved the project on grounds the mixed-use alternative was environmentally inferior. The City did not acknowledge it switched from the rationale of “economic infeasibility” due to “leakage of sales” to one of “greater environmental impacts” as the grounds for rejecting the mixed-use alternative. The administrative record does not indicate the City discovered additional information showing the mixed-use alternative to be an inferior environmental alternative.
“The City attempts to explain its shift by asserting that ‘[t]he determination in the EIR that the Mixed-Use Alternative failed to meet project objectives was the opinion of the City’s EIR consultants.’ The City continues that ‘[a]s such, the feasibility conclusions in the EIR were not binding on the City Council, and the Council had discretion to reach conclusions that differed from those in the EIR.’
“The City adopted a rationale unsupported by its EIR analysis. The City’s unexplained switch form a rationale of economic infeasibility to environmental inferiority as the basis for rejecting the mixed-use alternative conflicts with CEQA requirements to ‘disclose “the analytic route the . . . agency traveled from evidence to action.”’ [Citation to case law.]
“Here, the City administrative process sheds no light on how it came to reject the mixed-use alternative based on environmental inferiority instead of economic infeasibility in the draft and final EIRs. Consequently, the City has failed to comply with CEQA in rejecting the mixed-use alternative on grounds of environmental inferiority to the project as approved.”
Is this a situation of an “erroneous conclusion” by the appellate court, or one of sour-grapes denial by Manley, Petrovich and the City?
CEQA Energy Analysis
Manley basically attempts in his Request to create a linguistic dispute with the Opinion, about the words “link” and “overlap,” referring to what legal standard of review should be adopted by the court to address energy issues. The Opinion correctly relies of the notion of “overlap.”
The City did not analyze or consider transportation energy impacts of Gateway 2, according to the Opinion:
“The City does not deny its EIRs do not assess transportation energy impacts. Instead, the City argues its reduction of the size of the project as approved necessarily means some of the transportation energy impact was mitigated. The City also asserts it has mitigation measure designed to reduce vehicle trips. Of course, the City cannot way how much less transportation energy is needed for the project as approved because the issue has never been assessed in an EIR. CEQA EIR requirements are not satisfied by saying that an environmental impact is something less than some previously unknown amount.”
“We conclude the City’s EIR analysis is deficient insofar as it does not assess or consider mitigation for transportation energy impacts of the project.”
The Opinion also finds fault with the City’s sheer use of the state building code, as proof of environmental integrity, when this code clearly does not address significant matters under CEQA.
Manley misconstrues basic case law, relating to the fact that: “Potentially significant energy implications of a project shall be considered in an EIR to the extent relevant and applicable[,]” instead focusing on the use of the word “should” at a later point in the relevant law. Manley incorrectly argues that permissive language of this aspect of the law must control.
Of course, the Opinion strongly disagrees with his reading of legal precedent.
The Opinion also continues:
“[T]he City did not properly assess the construction and operational energy impacts of Gateway II. Tellingly, the City concedes the draft EIR ‘did not consider the potential energy impacts associated with [ ] three hotels, a 20,000 square foot restaurant, three fast food restaurants, an auto mall, and 100,000 square feet of office space.”
“[T]he City’s EIR’s for Gateway II do not indicate any investigation into renewable energy options that might be available or appropriate for the project. [ ] The City responds that it “was not required to incorporate any renewable energy features[;] CEQA is violated when an EIR contains no discussion of a potentially significant environmental consideration.”
Is it any wonder that Gateway 2 was voided by the court?
There are no “three erroneous conclusions” within the Opinion, as Manley argues. The Opinion should be published, as ordered by the appellate court.