Poking Holes In Markman & Flower

Markman & FlowerOn April 13, the City Attorneys Markman & Flower released a memorandum attempting to refute some of the claims I have made on this blog.

What followed was eight pages of prickly language arguing against claims that were never made.

(1) that the City’s hiring of Kimley-Horn Associates was inconsistent with the legal requirements of CEQA. (2) that ICF proposed to prepare a subsequent or supplemental EIR to the 2003 General Plan EIR.

A cursory review of my previous blog will remind any careful reader that I did not make these claims, and I’m not sure why Markman & Flower think I did. I challenged the City’s hiring practices with regard to proposal and records retention processes as a whole, and ICF’s proposal explicitly stated that a subsequent/supplemental EIR or addendum were not the way to go to properly follow the CEQA process.

These facts didn’t stop Markman & Flower from furiously defending their irrelevant positions with disparaging language peppered with legal citations that did nothing to refute my original claims.

Markman & Flower’s opening statement, a blatant and unwarranted ad hominem attack against the character of those opposing the Hines project, underscores their complete failure with all allegations and arguments they made.

Further, Markman & Flower’s characterization of public comments and opinions regarding City Staff’s behavior as “spurious” and “reckless” are insulting, dismissive and unacceptable.

By continually saying things like “claims recently made on social media” they undertake to dehumanize us. We are real people after all, residents of this community who enjoy rights that allow for the free expression of our opinions.

We are not “social media.” We are taxpayers, citizens of Brea, and we do not appreciate any insinuation that our opinions are akin to “fake news.”

The eight pages of blustery, “Well, I never!” pearl-clutching arguments in the Markman & Flower memorandum are largely empty and don’t address the accusations we’ve made.

Markman & Flower may well have overstepped their authority by commenting outside establishing what they believe to be the legal standing of the city’s attempt to comply with CEQA. Their authority does not extend to commenting upon intent or purpose behind public comment, mine or from the general public. Jim… Stephen… if you feel compelled to publish snarky, baseless remarks like those in your memo to the City Manager… create a blog.

Memorandum misses the point.

Markman & Flower charge that we have made, “… unsupported claims… that the City Staffs decision to prepare an addendum to the 2003 General Plan Environmental Impact Report… violates the California Environmental Quality Act.

Obviously, Markman & Flower only skimmed “social media” and never read the (originally deleted, recently recovered) ICF proposal to reach this conclusion. It couldn’t be farther from the truth. I pointed out in my last blog post that while some things may be legal it does not follow that they are prudent.

Markman & FlowerICF’s proposal declared, “We understand that the City’s goal is to tier from the 2003 General Plan Final EIR and the 2005 Negative Declaration for the establishment of the Mixed-Use Zoning Districts to the extent feasible. However, the baseline conditions for the project-level analysis for the current environmental document will need to be existing conditions…, rather than the previously approved land use entitlements. Thus, we do not necessarily believe that tiering from these documents is the best option for CEQA compliance.” [emphasis added]

In what world does “not the best option for CEQA compliance” mean “violates CEQA” — it doesn’t. Markman & Flower, in their rush to discredit public opposition to the project and to fend off allegations of staff misconduct, seem to have accomplished neither.

Markman & Flower self destruct.

In response to Markman & Flower’s professionally myopic comment, “ICF is not a law firm equipped to offer legal opinions on CEQA.” I offer this, ICF employs legal staff well experienced in environmental law, and the proposal was developed and submitted by a principal with 22 years of experience in environmental consulting and CEQA documents.

The conclusions reached by ICF were provided at the request of City Staff. It is fair to assume that ICF was invited to submit their opinions because their expertise exceeded that available on City Staff.

If the City did not feel that ICF was equipped to offer legal opinions on CEQA, why was its proposal sought at all? Discarding ICF’s recommendations without first giving the Planning Commission an opportunity to offer their opinion is ludicrous.

Are Markman & Flower masters of disinformation?

Markman & Flower have little choice but to offer this to avoid any suggestion of treading upon our First Amendment rights, “Members of the public may rightly have strong opinions regarding the merits of the Project and are free to express those opinions through available means, including social media.” Then they immediately return to their ad hominem attack.

They next proffer, “Spurious [fraudulent for those without a thesaurus handy] claims of official misconduct are a different matter, however.” This assumes, without substantiation, that the public’s claims are fraudulent. Until proven otherwise, our claims remain protected speech.

Markman & Flower persist, offering another unconfirmed allegation, “There is no evidence to support claims of collusion or corruption by any City official and we can only conclude such claims are based on a fundamental misunderstanding of the law, bad faith, or both.

Evidence has been provided, in abundance. If Markman & Flower had invested a fraction of the time “we the people” have put into digging up the truth, they would have avoided these sort of bogus statements.

Further, the blog’s headline “Corruption’s Partner Is Our Own Indifference.” is the only use of the word corruption in the entire piece. It is obviously a reproof to readers not to become indifferent… a call to end apathy. Nowhere was staff accused of corruption.

Never poke a tiger with a short stick.

Markman & FlowerIn recent years the voting, taxpaying public has paid closer and closer attention to how their community was being run and by whom. As the process of reviewing and approving the Hines project progressed, irregularities became apparent. Unfortunately, all attempts to get to the bottom of what appeared to be dodgy business was thwarted at every turn.

Documents were deleted, information requests turned up little or nothing. The City Council and Planning Commissioners were kept in the dark right along with the rest of us. Contrary to the disparaging criticisms peppering Markman & Flower’s eight page memorandum, all observations pointed to staff’s performance as questionable.

This behavior could be corruption, an indication of collusion or simply reflect a systemic case of incompetence.

Now what?

I’ve shared enough by now to make it clear that I believe the Planning Commission and all concerned can round file, toss out, jettison, dump, ditch or deep-six Markman & Flower’s memorandum and get back to weighing the facts.

Fact: Records were improperly disposed of. Solution: Correct loopholes that allowed these documents to be deleted without proper oversight and beg ICF to send another copy of their proposal so the record can be restored.

Fact: Important documents have been withheld from the Planning Commission. Solution: Make sure the missing documents are included in their information packet for the April meeting.

Fact: Whether deliberately or accidentally, the Planning Department has not conducted a transparent process with the Brea Place project. Solution: Start over and invite the Planning Commission and the citizens of Brea into the process and the commenting and collaboration opportunities such a process presents.

Markman & Flower

Dear Ms. Lilley…

On the heels of last Thursday’s resident’s meeting on the Brea Place development by Hines, the following communication to City Planner Jennifer Lilley has circulated from former Brea Council member and Mayor John Beauman.

John has been considerate enough to allow Brea Matters to add this to the public discussion before the next Planning Commission meeting on Tuesday, February 28.

Dear Ms. Lilley,

This paper is a flashback — based on the best of my recollection — when I served on the General Plan Advisory Committee (GPAC), 2000-2001, prior to being appointed to the City Council in Nov. 2001, serving through Dec. 2010, including two terms as mayor.

The General Plan (GP) was approved in Aug. 2003, which I had the opportunity to participate in, including staff presentations. In light of the extensive overview of the overall GP, no particular concerns were noted or addressed for what is now the Hines’ project site, which is understandable in light of the broad scope of the GP, a 2-inch-thick document covering a broad array of diverse study areas.

For the reasons stated below, applying the 2003 GP EIR to the proposed project is both inadequate and inappropriate.

The GPAC committee consisted of fourteen (14) members, representing a cross-section of the community, with a variety of professional and educational backgrounds. None of whom had expertise in urban development or zoning.

Our focus as a committee was principally on the overall GP rather than on any specific urban-infill site. Our collective knowledge was based solely on what consultants and staff presented. Our ability to ask relevant questions across the broad range of development was naturally limited by our lack of specific experience and knowledge.

At the time, there was no compelling reason to dig deeper into any potential future land uses for that site, since no specific concerns were raised. Even with it being designated Mixed Use I, there was no discussion or insight into what any future development may look like, especially without specifics.

I certainly did not imagine a project the scope and magnitude of the proposed multi-story apartment complex.

Our limited knowledge at the time was not even remotely adequate to project any future potential use for that site. In conclusion it was virtually impossible to even wrap one’s imagination around what any potential future project could potentially look like, all of which necessitates the need for a current EIR.

One last word, when reviewing that particular area, one envisions that any development on that site would be consistent with the community at large. Such a large apartment complex as is being proposed certainly isn’t.

Respectfully,

John Beauman, former Mayor

There, Ms. Lilley, is the real truth.

You are allowing this development agreement with the Hines Development Corp. to advance in a manner that is, if not illegal, certainly unethical and… as Mr. Beauman suggests, “is both inadequate and inappropriate.”

You have two weeks to rectify this situation, bring the Brea Place project to a temporary halt while initiating the sort of envisioning and environmental scrutiny a project of this scope… and Brea citizens, demand.

First, fix the process then fix the project.

BOUSD Puts $148 Million Dollar Bond On November Ballot!

BOUSD Board met last Monday evening and once again I’m turning to a Brea resident with special insight into the district, Connie Lanzisera. Connie has monitored the BOUSD for many years, holding them accountable on a wide variety of issues… mostly linked to money. The Board attempted to very quietly hustle a bond issue onto November’s ballot and almost got away with it. Here’s the backstory from Connie.

BOUSDI would like to thank the many Brea residents that attended the BOUSD Board meeting Monday night voicing their opinion on a possible $148 million dollar bond. Even though the outcome did not turn out as many had hoped, it was good to see the public become involved in the discussion.

For many hoping to at least delay the bond issue for a couple of years, the BOUSD Board’s decision to put it on the November 8th ballot appeared to have been decided before the meeting began.

Unfortunately, the School Board chose not to listen to Brea taxpayers who had legitimate complaints about, amongst many things, the lack of transparency thus far in this process.

Strong opposition voiced.

Every person opposing the bond measure told the board they would support a bond IF and only IF the District was truthful, transparent, and thorough in explaining how the $148 million dollars would be spent.

It seems both prudent and reasonable to ask for a detailed list of projects and costs the District wants to spend. However, the District has provided only a vague list in their attempt to define the scope of work to be performed.

They want the taxpayer to cough up $148 million dollars without any prior oversight from Brea residents… no questions asked.

BOUSDBOUSD – History repeats itself.

This mimics the Board’s strategy in 1999 when they duped voters into approving a $27 million dollar bond for which there has never been an adequate independent audit. We are still paying for it even though the money was spent many years ago.

In 2012 the Board tried to slip another $54 million dollar bond initiative onto the ballot but voters were smarter and the measure failed… much to the embarrassment of both district staff and the Board who assumed the measure would easily pass.

This year, attempting to gather public input, phone surveys were conducted on a very limited basis. Less than 300 taxpayers were contacted at a cost of $127,340 (those phone calls cost $425 each).

The consultant confirmed they called from a list of voters who had voted in the last two presidential elections because they had a high probability of voting this November. They called the week after their huge sob story postcard landed in Brea mailboxes. This is playing a numbers game, nothing else.

How many surveyed were homeowners or renters like you and me who will eventually be stuck paying the bill? Hardly a projectable sample.

Marketing vs. Engagement.

The District, rather than legitimately seeking public support, is relying on buzzwords tested by the financial interests in the bond industry. Rather than conducting broadly announced public hearings where community opinions might become part of the public record, the matter slipped onto last week’s agenda like a thief in the night.

Had sharp eyes not spotted the attempt to sneak the resolution through, there would have been little or no opposition expressed. A handful of teachers and PTA parents would have congratulated the Board for their forward thinking.

BOUSDBOUSD – A pattern of deception.

If the School District begins this process deceiving the community and trying to mask their intent, how can we expect them to be transparent and truthful when it comes to spending our money? Their flagrant disregard for truth is obvious.

The Board couldn’t (or wouldn’t) answer questions to how the $148 million dollars would be spent. Their answers, turning to those tested buzzwords, were generic phrases like fixing leaky roofs, upgrade wireless infrastructure, energy efficiencies and environmental upgrades and reinforce eroding hillsides.

This will raise the quality of education how?

Board member excuses ring hollow.

BOUSDBoard members spoke of their good stewardship and management of district assets, bragged about their success “saving” the district during tough financial times and took issue with comments from the audience to the contrary.

BOUSDBottom line, this is the Board that, in spite of millions of dollars in bond revenue and millions in profits from the sale of properties, has allowed our schools to deteriorate into a completely deplorable and unacceptable state of disrepair.

Our children and parents deserve better… so do those of us whose property taxes will take a big jump for another 30 years. The plan is not sufficiently clear or adequately detailed. The public has been disregarded.

The only reasonable choice is to vote no on the BOUSD school bond measure in November.

BOUSD