On 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.
ICF’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.
In 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.
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.