YOLO SUN OPINION :
Crucially pivotal for Woodland’s future character, the environmentally oriented lawsuit by Davis-based California Clean Energy Committee (CCEC) challenging (* majority: Pimentel, Davies, Dote *) City Council approval of Paul Petrovich’s Gateway 2 project has completed its legal briefing phase and will be heard by Yolo Superior Court Judge Daniel Maguire on April 12.
Gateway 2 would more than double the size of the (still largely unfinished) Gateway retail center at Woodland’s eastern edge, dominating the city’s future development horizon with a tsunami of commercial sprawl.
Primarily, CCEC’s lawsuit (petition for writ of mandate) seeks court voiding of Woodland City Council approval of Gateway 2 — for reason of various and obvious violations of the California Environmental Quality Act (CEQA).
Desperation driving them, Woodland City Council and Petrovich have hired the largest available caliber of professional legal obfuscation, in a frenzied yet futile attempt to somehow legally paper-over their plainly despicable sell-out of the public good of this municipality.
Briefs filed in this lawsuit starkly expose (majority) city council decision-making permeated by unlawful processes, deliberately (“arbitrarily and capriciously,” in judicial parlance) confounding and eviscerating our basic civic interests.
Process is certainly intrinsic to, and the guardian of, our democratic systems and our community’s health and welfare. Yet, our city council has chosen to abdicate its key role in protecting and promoting our properly lawful community development processes — serially violating them and (whenever needed) shrouding itself underneath legal obscurantisms.
Fortunately for Woodland’s civic health, welfare and character, CCEC attorney Eugene Wilson has successfully shredded the dense curtain of confusion and disinformation thrown up by (Sacramento-based) Remy, Moose & Manley principal and local resident, Whitman Manley, operating to conceal clearly perfidious (majority) City Council approval of Gateway 2.
____ City Failed To Consider Key General Plan Principles ____
Woodland’s General Plan contains numerous “guiding principles,” etc., regarding its downtown area: (i) “revitalize the Downtown district as the heart of the city,” (ii) “intensify Downtown Woodland as the principle retail, cultural, restaurant and commercial district of the city and region,” (iii) ensure that Downtown remains the sole central business district for Woodland,” (iv) revitalize and maintain the East Street Corridor as an economically-viable and physically-attractive mixed-use corridor,” (v) “retain and enhance Woodland’s quality of life, its separate identity and small-town characteristics.”
CEQA requires identification and discussion of “inconsistencies” between a proposed project and relevant general plan documents.
“Plainly,” states CCEC’s opening brief, “a large retail development on the periphery of the city with significant and unmitigated urban decay impacts that would positively degrade the downtown is not consistent with provisions calling for the revitalization of the downtown as the principle retail and commercial district of the region.
“But[,]” explains this opening brief — “the city failed to consider any of the provisions of the General Plan relating to the downtown. [ ] Without ever referring to or discussing the goals and policies dealing with the downtown, the City Council approved a general plan amendment for Gateway II finding that the project did not conflict with any of the goals and policies of the general plan.”
Bizarre — is the proper word to describe this community planning situation.
The city’s responding brief insolently complains that this specific legal claim is judicially barred, because CCEC’s petition didn’t explicitly state it as a formal cause of action. However — as CCEC accurately points out, its petition (for writ of mandate): “[E]xpressly alleges [all] ultimate facts” legally necessary for this legal claim — providing strong citation to valid legal authority on this question: “If the title or label or the pleading, or its prayer or demand for relief, is inconsistent with the allegations [of the petition, etc.], the allegations control.” Thus, the city’s strangely spurious legal objection falls flat.
___ Pattern of Impropriety Lurking Within Gateway 2 Approval ___
CCEC’s reply brief notes at its outset: “The City has failed to point to any discussion of the General Plan provisions relating to downtown revitalization.”
Blatant and spectacular, this CEQA violation itself is a back-breaking debacle for Woodland City Council approval of Gateway 2, utterly revealing its jaw-dropping failure to establish proper process for this controversial project.
Absence of analysis and discussion of the — primary municipal policies — involved with such project consideration strongly indicates more than simply an innocent blunder.
Rather — as further displayed below — there appears added, quite interesting evidence exposing basic contours of a systematic program of prejudicial and unlawful conduct and consequences working / lurking behind / underneath city council approval of Gateway 2.
Despite a very heavy barrage of legal objections and contentions (some strange, many fallacious, most distorted, all likely, legally unsuccessful) from Woodlander Whitman Manley, attorney for the City and Petrovich’s project — it is relatively easy to predict that an experienced jurist such as Daniel P. Maguire will not wilt under Manley’s ferocious (yet apparently foundered) assault.
Hopefully, even crackerjack attorneys don’t get to conveniently fabricate their own facts; although, to do so must seem to be their legal duty at dirty times like these: Attempting to defend a madcap city council run amuck, thoughtlessly trampling our civic interests.
Fortunately for Woodland’s interests, CCEC has filed this meritorious CEQA-based challenge to such a huge and obvious community planning travesty.
Otherwise, our precious community would be living with it, forever more.
Thanks to this lawsuit, we now have a wide window through which to perceive the active quotient of civic corruption in our city.
____ Legal Turnabout ____
One illuminative incident within this legal briefing exchange involves the city’s responding brief crisply demanding of Yolo Superior Court great “deference” / “benefit of the doubt” — type of judicial inclination — toward its decisions regarding key questions of consistency of amendments to its General Plan, citing controlling case law:
“When we review an agency’s decision for consistency with its own general plan, we accord great deference to the agency’s determination. [ ] Because policies in a general plan reflect a range of competing interests, the governmental agency must be allowed to weigh and balance the plan’s policies when applying them, and it has broad discretion to construe its policies in light of the plan’s purposes. [ ] A reviewing court’s role ‘is simply to decide whether the city officials considered the applicable policies and the extent to which the proposed project conforms with those policies.’”
CCEC’s reply brief happily concurs: “As pointed out (by the city’s own brief), the reviewing court’s role has two components — (a) to decide whether city officials considered the applicable policies and (b) to decide the extent to which the proposed project conforms to those policies.
“The City completely failed to consider the provisions of the general plan relating to downtown, and so it fails the first leg of this test.”
In other words — Woodland City Council has no legal leg, at all, to stand on in this matter of its incredible failure to include centrally relevant and lawfully required general plan material within its environmental process regarding Petrovich’s Gateway 2 project.
Citing to controlling case law, CCEC indicates that: “’The question is not whether there is a direct conflict between some mandatory provision of a general plan and some aspect of a project, but whether the project is compatible with, and does not frustrate, the general plan’s goals and policies. [ ] The proper test is whether development [ ] is compatible with and will not frustrate the General Plan’s goals and policies.’”
“There can be no question,” declares CCEC’s brief, “that a major project which the City itself concludes will cause significant and unmitigated urban blight will frustrate the fundamental goals and policies calling for the revitalization of downtown. Unmitigated urban decay plainly frustrates revitalization.
“Further, the City’s repeated [four separate] assertions that projects of this type would be ‘prohibited’ by the general plan [through adopting CCEC’s interpretation] is clearly false. The City need only provide additional mitigation to fully mitigate the urban decay. It is clear that [this] project will inflict significant physical blight.
“The City’s findings regarding consistency with the general plan were conclusory boilerplate and inadequate as a matter of law [because of its failure to consider key general plan provisions relevant to the downtown area, under case law cited above].”
____ Unlawful Urban Decay Mitigation ____
To obtain a proper grasp of additional legal difficulties facing Woodland City Council within this lawsuit, it is necessary to consider another prominent excerpt from CCEC’s reply brief:
“The City has not disputed that the project mitigation calls for the developer to prepare an urban decay analysis for each phase of the project.
“The City has not disputed that the determination of whether that analysis is adequate will be made by the Community Development Department.
“The City has not identified any City Council or Planning Commission review.
“The City has not disputed that Community Development will determine whether there will be a significant impact and whether mitigation will be required.
“The City has not identified any performance standard that would guide those determinations. It proffers only the generalized goal of insuring ‘adequate retail demand.’
“The City fails to identify what options Community Development would have.
“The City points to no evidence that the mitigation would be effective.
“The City does not explain whether urban decay impacts would be mitigated to less-than-significant or whether City staff could rely on the city council determination of over-riding considerations.”
The CCEC reply brief continues: “[Controlling case law] holds such delegations unlawful under CEQA at two levels.
“First, the city council cannot delegate the responsibility for considering the environmental analysis to staff. and second the CIty cannot delegate to the developer the responsibility to assess environmental impacts by directing the applicant itself to conduct the market study subject to approval by Community Development Department.
“CEQA requires that EIR be prepared “directly by, or under contract to, the lead agency [the City] (emphasis added).
“The City attempts to characterize this as delegating the — ‘implementation’ — of the mitigation.
“Yet, the mitigation calls for a study of the impacts that has not been done, for new decisions about significance, and for the design of mitigation that has not been identified. This is far more than implementing mitigation.
“As the court stated in [controlling case law] — ‘the development of mitigation measures, as envisioned by CEQA, is not meant to be a bilateral negotiation between a project proponent and the lead agency after project approval; but rather, an open process that also involves other interested agencies and the public.’” [Emphasis added.]
Woodland already has bad experience with such “bilateral negotiations.”
CCEC’s reply brief declares that: “The mitigation described [ ] and adopted by the City constitutes (i) an unlawful delegation, (ii) deferred design of mitigation, and (iii) piecemealing.”
____ Unlawful: “Piecemealing: ____
“Piecemealing” is legal jargon for a “phase-by-phase” conduct of urban decay analysis and project progress / build-out..
“Piecemealing is unlawful under CEQA. The City cannot break the urban decay analysis down into distinct segments or phases [ ] for that obscures the cumulative urban decay impact,” states CCEC’s opening brief.
“Agencies may not chop a project into smaller units in order to avoid consideration of the entire project,” the brief continues, citing substantial authorities within both case law and statute.
“The City offers nothing to dispute the fact that it has approved a phase-by-phase review,” explains the CCEC’s reply brief. “This procedure is unlawful under CEQA.”
The city’s responding brief, of course, denies this allegation. “No piecemealing occurred,” it states. Its argument seems to rest on the premise that Gateway 2 is to be built-out according to a “program [style] of site-specific review of particular projects within [Gateway 2,] performed at each step of the way. [Likely for several decades].”
The issue before the court is whether this — “program” — is legally solid.
The city’s brief also argues that Gateway 2’s regular environmental process “describes and analyzes the whole of the project, not some subset of it.”
However, CCEC’s reply brief swiftly dispatches this suspiciously awkward notion: “The City points to the urban decay study done for the entire project, but the mitigation approved by the city council over-rides that analysis. (Emphasis added.)
“[Council approval explicitly] provides that the operative analysis for urban decay will be done by the developer later and used to determine whether urban decay would occur ‘as a result of the proposed phase of the project.’” (Emphasis added.)
What a sly policymaking sleight-of-hand!
Congratulations, Woodland City Council. Petrovich was no doubt giggling and prancing around some room, when the decision was made to adopt such a mitigation approach for his project’s “program.”
Thus, CCEC’s reply brief clearly exposes the city’s destructive legal hoax, expressed in its responding brief — that its environmental process — “describes and analyzes the whole of the project, not some subset of it.”
Indeed, future phases / segments of the Gateway 2 project will not become — “described and analyzed” — until much later — with the project proponent / site-specific applicant — unlawfully — in charge (with approval of city staff) of developing mitigation studies and the processes / design of mitigation.
What a swell deal for Petrovich!
And what an unlawful distortion (political / planning sham) of the CEQA-based concept of a — “program” — project!
“Program” projects may be legally acceptable at certain times and upon a proper foundation and structure, but Gateway 2’s delegations of policymaking authority legally required to be retained at city council level – to city staff and Petrovich – is obviously unacceptable – yet, our majority city council chose to approve it, likely with an expectation it would not be sued.
As CCEC’s reply brief declares: “Contrary to the City’s repeated assertion, [lawful CEQA process] must describe feasible mitigation. [ ] Identifying ways in which a project’s impacts can be mitigated is one of the fundamental purposes of [CEQA].”
____ Unlawful Nature Of Future Public Review ____
City of Woodland’s responding brief asserts that: “[F]uture phases, and the market studies prepared for them, will undergo public scrutiny.”
The extreme legal weakness of that cleverly expressed view, is the real nature of public influence that is genuinely possible within such a context.
If there exists within the “program” of Gateway 2 no legal structure of proper review by elected or appointed bodies (council / planning commission), to be wielded in a flexible, congruent manner; but rather, city staff possesses the ultimate legal authority — staff decisions clearly will circumvent the level of legal responsibility demanded by CEQA for decisions regarding project mitigation (as noted in case law citation, above).
Public interests may well observe such deferred mitigation approvals — but actual “scrutiny” is tightly tethered to considering the limited format of an already adopted program of mitigation, later (phased and) designed by the project proponent, outside of open, public influence or control — thus, directly confounding basic CEQA (“open process”) requirements.
As stated in the CCEC reply brief: “The City is wrong to suggest that public review of the mitigation will come at the project level. Except in the unlikely event of a fundamental change from the broad project description, the [actual] urban decay analysis has been completed at the programmatic level.”
Case law cited by CCEC explains that: “We emphasize once again that the time to analyze the impacts of the project and to formulate mitigation measures to minimize or avoid those impacts was [ ] before the project was brought to the Planning Commission and the City Council for final approval.” (Emphasis in original.)
____ Unlawful Project Mitigation Funding Scheme ____
“[Environmental process for Gateway 2] did not describe a feasible fair-share mitigation program,” explains the CCEC reply brief.
The purpose of this specific mitigation element is to create a “Retail Strategic Plan” and other (in the end, only potential) commercial studies which may (only perhaps) retroactively respond to approval of Gateway 2, rather than being used to determine this mammoth project’s conditions of approval.
Thus, these (potential) studies are a peculiar means of simply entrenching institutionalization of Gateway 2 approval and progress — in a “cart-before-horse” fashion of municipal policymaking.
The city’s responding brief clearly states that such studies — are not legally intended to avoid significant urban decay impacts — but rather only to maybe be available to perhaps help to provide some limited manner of information.
CCEC’s reply brief reveals a dysfunctional condition with regard to this aspect of purported mitigation:
“Nothing in the record indicates that a plan to pay for the [mitigation] plans was ever discussed by the city council. Nothing suggests the planning commission considered this. No cost estimate has been identified. No proposal or description of the work exists. No time frame has been identified. Obviously, neither the language cited nor the record supports the idea that the city committed to pay for the studies.
“The administrative record contains no evidence that the fair-share contributions required of the applicant [Petrovich] would be part of any real program to mitigate urban blight. There is no evidence that the necessary funds would ever be obtained. Nothing shows this mitigation to be feasible.”
CCEC’s reply brief strongly support this view with on-point, persuasive and controlling case law.
Again, Woodland has very bad experience with this sort of loosey-goosey nature of developer latitude — still awaiting any form of mitigation activity, whatsoever, in conjunction with severe environmental impacts of Petrovich’s original Gateway retail center.
____ Unethical Presentation of Record ____
Alright, we’ve already witnessed (and Yolo Superior Court Judge Maguire will doubtless concur) quite a lot of grotesquely devious legal / planning mischief — perpetrated by (majority: * Pimentel, Davies, Dote *) Woodland City Council.
But, this legal / community planning drama not even close to over.
Yolo Sun will need to publish (* on April 11, prior the April 12 court hearing on the case *) yet another (special) installment of this investigative series, in order to reasonably contain for its readership the absolutely stupendous dimensions of unlawful transgressions upon our civic interest given life by relevant actions of Woodland City Council.
This (special) installment of will include an incisive analysis of the odd function of the planning notion: “adequate retail demand” – a lynchpin element within the city’s “program” approval of Gateway 2.
One salient issue must not be delayed in mention, however.
CCEC’s reply brief outlines this matter: “The City offers no explanation or evidence to justify the vague and infeasible [commercial] use limitations [ ] adopted by the Council.
“Rather, it argues that it was not informed during the administrative proceedings that there were objections to urban decay mitigation that is so vague and unenforceable as to be meaningless and that it was not advised to consider [commercial] use limitations.
“This is incorrect [as well as legally unethical for Whit Manley to assert].
“Petitioner [CCEC] and others were emphatic,” states CCEC’s reply brief, “that the City had failed to describe or adopt specific and enforceable mitigation for urban decay”
The administrative record obviously contains numerous comments directly intended to suitably object in this precise manner, submitted by: CCEC, Yolo County Board of Supervisors, David Wilkinson, Bobby Harris and (ironically) Tom Stallard — now a Woodland City Council Member who voted against approval of Gateway 2.