September Ranch lawsuits charge corruption of county planning process.
Thursday, July 1, 1999
If it''s spectacular fireworks you''re looking for, there''s no need to wait until the Fourth of July. The hottest show in town this holiday weekend begins July 1 at the courthouse in Monterey, where Superior Court Judge Richard Silver will preside over what promises to be one of the most bitterly contested land use battles in recent history.
The county is under fire from two separate lawsuits--one filed by attorneys Michael Stamp and Fran Farina on behalf of the Sierra Club and the environmental group Save Our Carmel River, and another filed by attorneys Zan Henson and Richard Rosenthal on behalf of the Save Our Peninsula Committee and the Responsible Consumers of the Monterey Peninsula. Both suits contend that, with the tacit approval of county staff and officials, September Ranch developer Jim Morgens and his attorney Tony Lombardo manipulated the planning process in a way that undermined fair public participation and deceived the Board of Supervisors in order to garner approval for a project that fails to comply with environmental and area land use regulations.
"The issue is one of integrity," argues the lawsuit filed by Stamp and Farina. "Two critical project changes were sneaked into the final resolution without public knowledge, without advance notice and without board action, destroying any illusion of due process or governmental integrity."
While the lawsuits against the 94-home development project dispute many of the project''s findings relating to water rights, traffic mitigation and consistency with the Carmel Valley and Monterey County master plans, the most damning accusation leveled by the plaintiffs'' attorneys is that Lombardo, with the help of county staff, altered the wording of the Board of Supervisors'' final resolution after the board''s 3-2 approval of the project on Dec. 1.
Specifically, the lawsuits contend that Lombardo changed the wording of the board''s final resolution to permit water pumping at a "net" level of 51 acre-feet, which the suits charge could result in pumping as much as 15 percent beyond the limit approved by the board. Lombardo is also accused of changing the requirement that 15 inclusionary housing units be built on-site by giving Morgens the option to pay in-lieu fees to the county, a violation of the Carmel Valley Master Plan according to the lawsuits.
"There is no substantial evidence that [the final resolution] represented the independent judgment of the board, or of anyone but the applicant," says the Stamp/Farina lawsuit, which argues that the board approval should therefore be invalidated.
"The public process itself was prejudicially tainted by last minute manipulations and the addition of new information designed to lead to political approvals before the end of the 1998 calendar year," charges the lawsuit. "It culminated in a board resolution never seen by the board, with material changes in ''net'' water and inclusionary housing units inserted into the official board action without notice. There is no evidence in the record to suggest that staff revised it or wrote any of it."
"We''ve emphasized that [the California Environmental Quality Act (CEQA)] is intended to provide objective, informed decision-making, and that clearly is what is missing here," Stamp says. "My concern is the county is not doing its work and letting someone else do it. The whole process is a subversion of CEQA, it was a rush to judgment that was politically driven. The evidence as we see it is, at best, a gross abuse of the system, and unless someone told the [supervisors], they may not be aware of it. Whether their own attorney [Doug Holland] advised them of this is unknown to us."
Supervisor Judy Pennycook told the Weekly that she had no knowledge that changes were made after the board''s Dec. 1 vote.
"I have not been made aware of the changes; it is troubling and it''s new to me," says Pennycook, who voted against September Ranch after being denied a continuance to study the project proposal in greater detail.
"I didn''t support what the board agreed upon, and I will be asking counsel to inform the board if there is any truth to this. This is very disturbing," Pennycook adds.
A request for an interview with Lombardo was unreturned as of the Weekly''s press deadline. However, in the brief filed on behalf of September Ranch, Lombardo contends that planning staff provided the Board of Supervisors with a draft resolution containing the project modifications prior to the Dec. 1.
"During the hearing, the board and staff identified several modifications to the resolution to reflect decisions made during the board hearing which were incorporated into the motion to approve the project. The board voted 3-2 to approve the project and directed the county staff to prepare the final resolution," says the brief.
As far as Stamp is concerned, Lombardo''s assertion that the supervisors knew what they were approving and that the final resolution fully reflected that approval is debatable.
"The sequence of events is confusing because of the way county documents were prepared by the applicant on computer discs and then edited by county staff in ways which do not leave a clear paper trail," says Stamp.
"The board resolution the supes voted on had changes in it prepared by Lombardo and given to county planner Andrew Harris. There is no evidence in the record to suggest that staff revised it or wrote any of it. There are questions whether the board saw it, or whether it was created the day of the hearing, and there is no substantial evidence that the [final resolution] represented the independent judgment of the board, or of anyone but the applicant."
Although Lombardo has long been a target of vilification by environmentalists over his perceived "manipulation" of the planning process, Stamp and Henson say that whatever abuses Lombardo may or may not be guilty of, ultimately it is the county that is responsible for upholding the integrity of the system.
"The county is on trial here as much as September Ranch itself, looking at the way county staff have addressed this project," says Henson. "In my opinion the staff crossed over the line to become an advocate as opposed to a more neutral allowing the board to do what it wants. You could almost say it was a political decision. The staff gave the board the decision they wanted to hear."
According to Henson, there is a delicate balance between the need for the developer to assist in creating the findings for a development project, and the planning department''s responsibility to ensure those findings are accurate and in compliance with regulations.
"You have to understand it''s not uncommon for the developer to draft proposed findings and documents and present them to staff for their consideration," explains Henson.
"It does two things, it eases the load for staff and, secondly, it''s common knowledge among attorneys that by shading and nuance you can make a difference and can include things that help to make it more likely for a client to prevail if there is an appeal to the court. It is a common practice and nothing I would condemn as a practice in and of itself, but the catch is the staff has got to be super-alert to scrutinize these things and recognize they come from a participant in the process, not a neutral party.
"I don''t know for a fact Tony may have taken this practice to another step than I am accustomed to seeing to prepare proposed staff reports," adds Henson. "I can''t verify that and I suspect he would deny he prepares staff reports."
According to the lawsuits filed against September Ranch, the county may have crossed the line into "advocacy" when county Counsel Doug Holland sent two memos to the Board of Supervisors prior to their Dec. 1 meeting.
The county refused to release the first memo to the plaintiffs despite a request under the California Public Records Act. The second memo stated, in effect, that the Planning Commission''s findings and prior approval of the "environmentally superior alternative" of 49 units with a baseline water use of 26 acre-feet for September Ranch was deficient and economically unfeasible. The conclusions in that memo, says the suit, relied wholly on correspondence sent by Lombardo to Holland.
According to the suit, Lombardo then faxed a copy of Holland''s memo to planning department head Bill Phillips reiterating that the Planning Commission could not legally reduce the size of the project, that water credit transfers are permissible without a county ordinance, and that a judicial decree is not necessary for use of riparian water for the project.
Although the charges of manipulation may not be enough to void the September Ranch approval, the more technical arguments over the validity of the project''s water use, water rights transfers, traffic impacts, and consistency with CEQA and local land use policies suggest that the project will likely require additional analysis and/or possible modification before it can be built.
Regardless of the final outcome of the September Ranch lawsuits, attorney Stamp hopes the issues raised in the suits will put the county on notice to do a better job in evaluating future projects.
"The public trust is at issue," insists Stamp. "It''s not whether you''re for or against development, but whether you believe in the integrity of county government."