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

10 thoughts on “Poking Holes In Markman & Flower

  1. Well done. I actually forced my way through that entire memo. At first I thought, hmmm, looks like someone hit a nerve. I’ll admit, I skipped Googling those “legal citations” I guess they’re called. I’m not a lawyer.

    When your debunking post showed up today I could’t wait to read it. Like I said, well done. I’m glad you pointed out their dehumanizing tactic. Really frosted me. This dismissive attitude has poisoned public engagement with the city for a long time. It’s got O’Donnell’s name written all over it.

    Don’t hold your breath that we’ll get any answers to the most important questions like “Why did you get rid of the ICF proposal?” and “Why aren’t you allowing the Commission to review both proposals?” and “What, no third proposal?”

    • “Lettin’ the cat outta the bag is a whole lot easier ‘n puttin’ it back in.” (Will Rogers) – so… the cat’s out of the bag now.

  2. This is great summary and I fully support the fact we need to start over. We need to get it right for ALL involved!

    Ken Salazar

    • Ken… Thanks, and appreciate your help in reaching out to the Commission with our request to reboot the process!

  3. I read the handout last Wednesday night and just reread this again. It is so obvious that a lot has gone on behind closed doors. I think it’s time for the city to clean up their act. Over and over we keep hearing promises for accountability and transparency and as far as I can tell no one has ever delivered on their promises.

    I don’t know enough about the economics of development to really judge Brea Place on that level. I do have concerns about adding to a traffic problem thats already beyond fixing. Does anyone really know what the impacts of adding over 1,500 new Breans to the population would be? What about police, fire, schools, parks, water, waste management?

    We can’t afford to be cutting corners. We don’t need lawyers butting in to help cover things up. Unless we tear down something pretty big, like we did with the old high school, we won’t be seeing this sort of opportunity again. We better get it right.

    • Elizabeth… I’m hoping to see some long needed changes to the political landscape of Brea in 2018 and 2020. Time to say adios to the king makers, pretenders and loose cannons. I’ve already heard a couple of names bantered about, one is obviously too old school, the other has real possibilities. We’re going to need to find more folks without inflated egos and personal agendas willing to take on the leadership around here.

      Regarding Brea Place, we have nothing but questions and few answers I’m afraid. So much has transpired out of view. It’s time to drag this out into the light and start over. You’re absolutely right, this is a rare opportunity and screwing it up isn’t an option.

  4. THANK YOU Rick for ALL of your hard work on this Brea Place project. I feel very fortunate to have you on our side. You have put countless hours into this and I know that you deserve a big round of applause from all of us Brea residents!

    I know that I am very grateful for your efforts!

    • Barry… that is very kind, thank you. The reward is not applause but seeing a growing number of Breans taking an active interest in local issues and elections, becoming more informed and less opinionated.

    • If so, it occurred after last week’s Council meeting where he was reported to have been seen.

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