Birch Hills Golf Course, A Toxic Blunder.

Title to the Birch Hills Golf course, owned by Union Oil/Chevron since it was built in 1972, was to be transferred to the City of Brea in exchange for being released from the obligation of paying a Parks in Lieu Fee. Who knew what a total nightmare this seemingly simple matter would become?

The pissing contest between Chevron and the City of Brea has consumed over three years in closed sessions, allowed the once popular course to be dramatically reduced in size and to fall into a horrible state of disrepair and finally, last Tuesday, it showed up on Council’s agenda as Consent Item 21.

Consent Item! Bull Sugar!

Consent Calendars are reserved for routine, non-controversial, housekeeping items, or matters the Council has achieved consensus on after previous discussion. Generally, topics that have not been previously discussed by Council should not be put on the consent agenda.

Since the early ‘90’s Staff and Council have been burying critical items on the Consent Calendar to avoid conflicting public opinion. It’s a practice I’ve been fighting for years.

The moment agendas are posted late Friday afternoon, I immediately check the Consent Calendar to see what is getting swept under the rug at the next meeting. I find dubious items virtually every time, the Birch Hills matter is a prime example.

Why Pull The Item For Discussion? 

Three years in the making and this multi-million dollar city asset was being acquired like a thief in the night, with no provision for discussion. Again, bull sugar.

Well over a hundred pages of complicated legal documents, with 14 attachments, were handed off to Council Friday evening and they… we all… had 97 hours to digest and research or corroborate it all.

Thankfully there were several folks willing to attempt the task.

What they found was a grossly incomplete set of documents that saddled Brea, forever, with a toxic, barely profitable piece of property with virtually no means of turning it around without spending a fortune.

How toxic? How costly to mitigate? What options for repurposing some or all of the land to a more safe and profitable use? Nothing in the documents offered even a hint at answers.

Birch Hills Toxicity Is Serious Issue.

Chevron’s field assistant to the project manager on the La Floresta and the senior boots on the ground as the biohazards on the golf course and Rails-to-Trails segment were mitigated, John Bickel, pleaded with Council at their study session to pull the item from the Consent Calendar and table it until they had a better idea of what they were really accepting.

John provided a detailed account of burying countless yards of contaminated soil under the parking lot and the additional mitigation required to bring the property up to residential standards.

John concluded his remarks with the admonition that we just don’t know enough… there are still too many unknowns. There’s a lot more explaining to do before we saddle ourselves with this monster.

Addendum – John Bickel: I think it’s important to add some clarity on exactly what is buried there, why there is more remediation to do.We (Chevron) cleaned up to meet golf course spec not residential. There really is no danger in playing golf, the lake is not contaminated. The soil beneath MAY be, no one knows for sure, it has liner underneath it is why it wasn’t sampled. The unknowns and talk of toxics could damage the income of the course.

Erin Brockovich ring a bell?

Let me add that converting this land to residential use has been a part of the General Plan since 2003. It’s on the city website. The map on page 40 shows this property as low density residential.

The city planners knew it. Unocal/Chevron knew it. Yet the documents to effect the transfer of title provide little or no clear answers how the city might proceed in that direction in the future.

Another Voice Of Reason.

During Matters From The Audience, Dwight Manley chastised Council for putting such an important matter on Consent Calendar and to table the item until the many blanks could be filled in. Clearly Council could not proceed with any certainty based upon the information available.

Here are Dwight’s comments to Council. Please listen carefully. Would you have proceeded blindly to conclude this transaction knowing how little you really knew?

Vargas Exits, Council Dives In.

Forced by legal counsel to recuse himself, Council member Vargas left the meeting. Having voiced his serious concerns since early in the weekend about the Birch Hills issues, Mr. Vargas appeared to be the only real voice of reason.

Many people, believing that Council had clearly heard the public’s position on the matter, left the meeting as well. Thinking it was tabled… they were in for the shock of their lives.

A Comedy Of Errors.

I was watching from home and hung in there. The thirty minutes of bungling and incompetence that followed was gut-wrenching.

In response to half-baked questions from an obviously uninformed Council, staff pulled off an exhibition of world class sugarcoating, deflection, outright misinformation including the “$80 a cubic yard” lie.

If you have the stomach for it, you can watch the streaming video on the city website.

I texted Dwight, warning him that it appeared Council was being drug down a path towards approving the transfer of the Birch Hills Golf Course and direct the Mayor to execute all documents necessary to close escrow.

That’s exactly what they did. They saddled us with a toxic horror and no means to dealing with it lest we spend millions upon millions of dollars ($300 million?) and beg, with fingers crossed, that Chevron and the EPA would approve our request to clean up and repurpose the property.

Unbelievable! Inconceivable!

Brea resident, Thomas Kwan, turned off his TV and emailed Council after listening to Dwight’s detailed and heartfelt plea. A copy of it reached me on Friday. Here I’ve paraphrased a few excerpts.

The last document of the set of exhibits setting forth the request for approval of the Birch Hills Golf Course Ownership Transfer Documents is the Covenants, Conditions, and Environmental Restrictions…which contains the Soil Mediation Plans for the different parts of the property.

There remains on the southern portion of the property toxic chemicals including among others, PCB’s polychlorinated biphenyls, dioxins/furans, relatively stable compounds toxic chemicals that will be there for a long time.

Who in their right mind would want to accept the Draconian responsibilities and liabilities associated with that property and the associated acquisition agreement?

Keep in mind not all of the soil has been tested. There may be areas of contamination that have not been found, have been buried without record or carried by the elements elsewhere to an untested area.

As far as I am concerned the owner (Chevron) should keep Birch Hills, build a sarcophagus over the site and fence it with skull and crossbones signs around the property.

If Brea wants to take over compliance with the EPA and OCHCA restrictions and share the responsibilities and liabilities, then Chevron should fund a multimillion dollar trust for such.

So What’s The Damned Rush?

There are no critical deadlines, threatening penalties or life and death issues here. No real urgency at all. Hell, we’ve screwed around with this for three to four years. Can’t we take a few more weeks… months… to make sure we do this right?

There are legally acceptable ways to delay the final execution of escrow while we connect all the dots. Why wouldn’t Council use every means at their disposal to do this right?

 

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

Corruption’s Partner Is Our Own Indifference.

I don’t do indifference. I don’t do close enough. I don’t accept half truths. When I want answers I’ll go to almost any length to get them. I’ve got them… in spades!

After several months of investigation, submitting numerous CPRA requests to the City Clerk with the hope of finding some truth about the Hines Brea Place project, I finally discovered the truth.

We, and I mean the City Council, the Planning Commission and concerned citizens, have been the victims of a deception of unprecedented proportions.

The deception begins to unravel.

I requested copies of an RFP to write/produce an Addendum to the Brea General Plan Final EIR, a list of firms invited to submit a proposal, all proposals received, other written communications between City of Brea staff and firms invited to submit a proposal. All I got was the now widely distributed proposal from Kimley-Horn plus the general response which had become painfully familiar…

“There are no documents responsive to your request.”

So I emailed the City Clerk with this inquiry, “Just to confirm, the non responsive results verify that multiple firms were not invited to submit proposals. The city policy to seek competitive bids was waived and the PSA ($59,981.00) with Kimley-Horn was approved on a sole supplier basis.”

The email was bounced to David Crabtree, Director of Development, who, on Monday morning, April 3, responded, “We solicited two proposals for this CEQA review, Kimley-Horn and ICF International. We selected Kimley-Horn for the job and executed a PSA with them. We do not have any responsive records to provide regarding the requests, other than what we have given you. We have not retained a copy of the rejected proposal from ICF — it was over a year ago and we don’t have any reason to retain. Hope this information is of benefit. Dave”

Red flags started going up like a May Day parade in the Kremlin!

I responded to David, “How were the solicitations made if there are no responsive documents? What, as you remember, differentiated the proposals such that you selected Kimley-Horn? Was the decision based upon low bid? Is the discarding of the ICF proposal in keeping with the city’s records retention policy?”

Thankfully I wasn’t limited to hammering the city with CPRA requests. Other resources became available so I shortly received a copy of the letter soliciting ICF’s participation in the project and the proposal they submitted. You know, the one staff decided to shred.

Busted!

The proposal was crystal clear, writing an addendum was absolutely the wrong thing to do… so wrong that ICF refused to do so and instead submitted a proposal to do a new EIR in accordance with CEQA. Forget all that legal mumbo jumbo tossed about by the City Attorney. Here’s what the ICF proposal said:

“We understand that the City’s goal is to tier (i.e. extrapolate) 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 that exist on the ground, 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, and have attempted to explain our rationale below.”

Translation: You’re asking us to write an addendum “if feasible.” It’s not feasible. Let us explain why you should not do this.

“The General Plan Final EIR acknowledges that it is in fact a Program EIR…” Program, get it, not project! You can’t use a program level document to assess impacts at the project level — especially 14 years later!

“If a later activity would have effects that were not examined in the program EIR, a new Initial Study would need to be prepared leading to either an EIR or a Negative Declaration.”

Precisely what I and several others have been referring to as “cumulative” impacts. Like the traffic impacts created by Central Park Brea and La Floresta.

It gets better!

“While the previous environmental documents set the expectation for future development of the site in accordance with the General Plan and Zoning, it is our opinion that the previous environmental documents are not sufficient to cover the development project and that a standalone EIR be conducted, incorporating the previous environmental documents by reference. We believe this to be the best course of action for the following reasons:

  • The General Plan EIR is a first-tier program EIR. Tiering (i.e. extrapolating) from this EIR might be appropriate for new General Plan policies or actions, but not specific development projects.
  • Use of a Subsequent or Supplemental EIR, or even an Addendum, would be appropriate if there were minor changes to the General Plan (which was the previous action evaluated). Specific development proposals were not identified in the General Plan, and therefore the project does not represent a minor change to the previous project.
  • The impact analysis under the General Plan is at a program level, and does not address the impacts associated with development of the site and impacts on surrounding areas. Thus, the impacts associated with development of the site have not been adequately defined or disclosed.
  • Over 10 years have passed since certification of the General Plan EIR and the Zoning District Negative Declaration. Thus, existing conditions and circumstances have changed substantially since that time, and new issues must be examined under CEQA.

Thus, for the reasons above, we have proposed to prepare a stand-alone EIR for the proposed project.”

There it is, the smoking gun Zim Walker has been talking about!

Let’s get back to the sticky parts of the process.

Monday, late afternoon, I shared all of this with City Manager, Bill Gallardo. Somewhat stunned, he agreed to bring all of this to the attention of David Crabtree, first thing Tuesday morning. Early Tuesday I received this from Bill:

“Hi Rick: Not ready to discuss… still gathering the facts… if not today for sure tomorrow. Thanks. Bill”

Here is my response:

“Bill… After being deflected, misinformed and flat out lied to for almost two months I finally uncovered irrefutable evidence. I shared all of this with you Monday afternoon, saving you the months of time wasted I was subjected to.

As you are abundantly aware, I have documents that prove staff knowingly ignored information from a highly reputable source, one solicited by staff specifically for their guidance and assistance in the Hines Brea Place matter. Staff was clearly told, in no uncertain terms, why relying upon an addendum to our 14 year old General Plan and FEIR violated CEQA guidelines on multiple grounds.

Members of the Planning staff violated current city records retention policy by destroying the incriminating communications mentioned above. They also knowingly violated the CPRA by reporting to Lillian Harris-Neal, City Clerk, that they possessed no records responsive to my requests when the truth was, as clearly admitted to in the email I received Monday morning from David Crabtree, Director of Development, that the documents had been destroyed.

Any reasonable person discovering what I’ve discovered would likely reach the same conclusions I have, that there has been collusion amongst some members of the Planning Department and City Attorney’s office, to violate environmental law (CEQA) and the public’s right to know (CPRA), with the ultimate objective to hide everything from the Council, the Planning Commission, the City Manager and the public they’ve been hired to serve.

Please, regardless of who may be counseling you to circle the wagons, finding a way to minimize damages and public exposure, I ask you to do the right thing. Choose instead to serve the people’s best interest. And please, provide full accountability and transparency while you strive to resolve these egregious acts.

Restart the Planning Commission on a proper course of action in the matter of the Hines Brea Place development so it might reach a positive conclusion that benefits all concerned.

Purge city staff of those who hold themselves above the law and follow personal agendas that ignore the people they’re hired to serve. Re-educate members of city staff who have inadvertently been duped into facilitating the misconduct of their peers.

You’re asking for an extra day beyond what we discussed on Monday. If it means the people of Brea will receive the service and justice they deserve… of course.

Respectfully, Rick Clark”

Fast forward to Wednesday afternoon.

smoking gunAgain, Bill and I had a lengthy conversation about what I had uncovered and what he intended to do next. He shared the response he received from David Crabtree, “Early last year we conducted meetings with the City Planner, City Attorney, Hines staff and their attorney and John Koos, the Hines consultant. We evaluated both proposals and elected to go with the one from Kimley-Horn.”

Hang on, wasn’t I told by Hines’ Project Manager Bhavesh Parikh, “they were only invited to participate in initial discussions about the addendum but were given no role in the final decision. The City Planner unilaterally made the decision.”

So “they” included the Hines attorney and consultant. No mention of reviewing two contradicting proposals. No suggestion “they” played a role in the decision.

I’m having a pretty damned hard time buying off on all of the smoke and mirrors surrounding the Hines project and everyone concerned.

I told Bill that as there seemed to be no attempt on the part of staff to rectify anything, they left me with no alternative but to publish my findings and opinions on Brea Matters.

The Russians are coming! The Russians are Coming!

One might think so since Brea Matters, less than 5 hours later, was hacked! Yup, obliterated from the interwebs! Scrubbed, deleted, summarily violated! Six years of hard work and dedication erased.

Thanks to a brilliant webmaster, most of the site through 2016 was recovered by morning and I’ve republished the balance today. In sharing what happened with a couple of close friends, this was best characterized as a malicious targeted criminal enterprise.

Okay folks, it’s up to you now.

I know this has been a lot to absorb. My first reaction to finding out the truth was, “Oh no, not in good ol’ Brea!” Get over it. It happened here and we need to step up and do something about it.

Both City Council and the Planning Commission have been alerted to this post. Most of it, especially the ethics and legal ramifications, are brand new to them. As this starts to sink in, I suggest you send them an email letting them know how you react to it.

Haul your feelings into the Planning Commission meeting on April 25th and speak up. Get there early or Hines will have already filled the good seats with their Hollywood extras and you’ll be left standing in the back again.

Is this how you want your city run? Is this how you believe your community can create a sustainable future for itself? For you? For your kids and grandkids?

Some serious housekeeping is in order!

Markman & Flower