The Weakness In Their Case
A Fringe Report: analysis and opinion
This analysis draws from the court papers HERE
and HSRA’s press release, which is found HERE
See also an earlier HSRA letter of objection to the County, HERE
High Sierra Rural Alliance is once again suing the people of Sierra County. Like so many who try to wrest our democracy from us, HSRA claims to do this for our own good. This is an analysis of the court document, with reference to the HSRA press release.
As always, people with an opposing viewpoint will be given space for a “rebuttal” though we reserve the right to answer that rebuttal.
The Court of Public Opinion.
The Prospect understands the “court of public opinion” argument which often discourages journalists from remarking on lawsuits. The argument holds that public opinion is ephemeral and usually poorly informed. “Public opinion” observes no procedures and has no accountability. It’s how we elect our representatives, though, so it must have some value.
We hold that the duty of a free press is to bring information and context to readers. We think the intention of the architects of a free press was that citizens would form opinions. This analysis is not constrained to accept the definitions or procedures of the court, but intends to consider things the court can not. It contains opinion and criticism.
The thrust of the lawsuit seems to be to 1. Establish that the General Plan intends to disallow scattered homes in the mountains (at least without expensive CEQA reviews); 2. Establish that any development is harmful unless in an already established population center; 3. Demonstrate that the County did not follow the law adequately.
In our view, there are weaknesses in the case, again, a view without the kind of constraint that the court observes.
Weaknesses in the case:
We’d like to contest first of all the definition and description High Sierra Rural Alliance uses to give itself standing in the case:
Petitioner has served as a regional watchdog organization on land use proposals in Sierra and Plumas Counties that threaten to adversely affect the rural quality of the County by allowing for development in areas that are not zoned for intensive use and which lead to piecemeal land use planning. Petitioner utilizes public forums for educational purposes and the development of community support.
First, a “watchdog” is different from a “savage guard dog”. As Greg Bulanti said at a SC Board of Supervisors meeting regarding an HSRA action, a watchdog alerts those it serves to danger. It is suggested that HSRA is a guard dog, one we did not seek, but a snarling, dangerous, litigious dog we can’t run off. Occasionally, almost coincidentally, it barks at a menacing stranger.
We’d like HSRA to describe their expertise in defining “rural quality”. It’s also been quite some time since HSRA was able, or even tried, to “utilize public forums for educational purposes” and it can scarcely claim community support. We think these statements lack the substance necessary to be included in the discussion.
One reason there isn’t much local community support for HSRA is that it behaves unilaterally, in its own interest and without regard for the rest of the county.
Petitioner brings this action on behalf of itself and its adversely affected members, whose interests are adversely affected by development that does not preserve and protect agricultural and natural resources, as required by law.
Apparently HSRA believes that somehow the intent of CEQA was for a handful of people to impress their perspective on the rest of the county.
This suggests that HSRA is not a community minded organization, and does not represent the wellbeing of anyone but their members, however many or few, and however distant or local.
We hardly imagine how a few houses scattered around the county, on private land, are going to materially “adversely effect” HSRA’s handful of members, most of whom are specifically forbidden from trespass by many local landowners. There are too many acres and too few parcels.
In TPZ, by number of parcels
80 to 160 160 plus
In TPZ, by acres
80 to 160 160 plus
The Meaning of the Words
To be clear, many of us support HSRA’s rhetoric. We don’t want unwise land use decisions which create problems for the future. However, we find that the group over-states their position by rigidly defining terms.
Under “Factual Background” we read from the court document:
A fundamental purpose of the County General Plan ("GP") is to promote and encourage residential and commercial growth in Community Core Areas and confine the extension of public facilities to these areas. The General Plan states that areas outside of Community Influence Areas be maintained for natural resource industry growth and enhancement, for protection of the County's rural lifestyle and for protection of environmental quality. GP. p. 1-3.
The General Plan seeks to maintain most residential growth to those areas already developed, and it does seek to maintain natural areas in the county, but it does not prevent or discourage owners of large parcels from putting a residence on the property; that is not the kind of “sprawl” the GP expects to curtail. Again, the essence of the argument is that any homes at all constitutes problematic development. What is problematic is in the eye of the beholder, but for most of us, it does us no harm for a landowner to build her or himself a home. It is the essence of the “rural lifestyle.”
1. Petitioner challenges the County's action as contrary to the Sierra County General Plan and the California Environmental Quality Act ("CEQA"), Public Resources Code § 21000 et seq. The Ordinance has the potential for significant environmental impacts by expressly authorizing large acre residential estates on over 300 large parcels in the County and thus the County's approval of the project using the "common sense exempton (sic)" was inappropriate under CEQA.
2. The Ordinance is also inconsistent with the General Plan because it allows residential development of TPZ parcels, which is contrary to the policies and standards of the General Plan. The General Plan limits large acreage residential estates to non-TPZ lands designated as "General Forest" in the zoning code. The General Plan -and General Plan EIR -assumed there would be no residential and other related development on TPZ lands, yet the Ordinance would allow such development as a matter of right, without discretionary permitting review by the County.
3. The General Plan requires the County to update its existing zoning ordinances covering TPZ and General Forest designations to reflect General Plan policies and standards. The Ordinance fails to meet these standards. The County has failed to meet the General Plan directive.
The claim later quotes the General Plan:
A primary Timber Element policy is to "[e]ncourage retention of timber lands through land use decisions" and to "seek to avoid the pressure to convert timber lands that arise when residences or related uses are approved amid timber producing lands."
This is a broad goal of the General Plan; however, we’ll suggest it does not prevent the County from making a determination of compatible use which is in legal under the California Code.
Land use under a TPZ will be restricted to growing and harvesting timber, and to compatible uses approved by the county- California Code - Section 51110
The law provides for counties to decide what are compatible uses. There are basically two ways to look at the law.
In the first way, the view HSRA seems to be insisting on, compatible uses are only those uses specified by the law: growing and harvesting timber. This is the view favored by those who believe that freedom is something given to citizens by the government.
The second interpretation of “approved by the county” is that the law allows all uses unless restricted by the county. This assumes that land ownership has rights which the government must take away.
Shasta County has one of the more draconian interpretations of the law. It requires a special use permit and requires the structure be for use by “persons fully and necessarily employed on the premises.”
Trinity requires a special use permit for a residence but allows it unless it dramatically reduces the ability of the land to grow trees.
Siskiyou allows a single family dwelling with no special use permit.
Plumas code permits: “A residence or other structure necessary for the management of a parcel zoned as timberland production if such parcel is 160 acres or greater in size; child day care homes; and limited child day care homes”
Sierra County code previously describes “compatible use”:
"Compatible use" is any use which does not significantly detract from the use of the property for or inhibit growing and harvesting timber.
It also previously identifies one compatible use:
A residence or other structure necessary for the management of land zoned as timberland production.
The recently adopted code specifies:
…necessary for the management of land zoned as timberland production, including an attached or detached garage, on a legally created parcel consisting of a minimum of 80acres.
That is appropriate to the enabling law, which says:
(h)"Compatible use" is any use which does not significantly detract from the use of the property for, or inhibit, growing and harvesting timber, and shall include, but not be limited to, any of the following, unless in a specific instance such a use would be contrary to the preceding definition of compatible use:
(6) A residence or other structure necessary for the management of land zoned as timberland production. (51104)
Key to HSRA’s complaint is the interpretation of the word “development”. Does it mean “a house” or does it mean “houses”. In the most restrictive sense, “development” means any change which increases value or changes use; a single family residence, a garage, a barn, septic and water systems, roads, utility lines all count as “development”.
However, “development” can also mean a “subdivision”: houses, community water systems, paved roads and sewers. The TPZ ordinance already prevents those kinds of development.
In each instance of “development” the County is allowed to consider what the impacts would be. HSRA might make the point that a special use permit is simply that: the County following procedures to assess impact.
However, that isn’t necessary under the law, we don’t believe. Under the law, the County can make broad assessments. One house every 80 or 160 acres located on TPZ land isn’t going to significantly impact the rural nature or environment of the county. The County could, we believe, allow landowners property rights without compromising the goals which require the County to “seek to avoid the pressure to convert timberlands that arise when residences or related uses are approved amid timber producing lands.”
There are really only 227 parcels at issue, not the 300 claimed by HSRA in their press release, since parcels under 80 acres are not going to be allowed a residence, and landowners will be encouraged to remove the properties from TPZ.
This means that if all 227 parcels over 80 acres build a house, it will be 227 houses built on 80,000 acres. Doesn’t that qualify as rural?
Further, it isn’t as though the County has no control over the houses built on those parcels, they still have to conform to the building permit process in every other way.
Also, we wonder how HSRA’s stated goals would be reached if the land owner simply converted the land to General Forest, though HSRA has attempted to prevent that change to landowners in the past. Discouraging single family residences on TPZ land and then making it difficult to remove land from TPZ unfairly penalizes the landowner in a double jeopardy manner.
HSRA is attempting, through manipulation of the meaning of the General Plan, to use TPZ land as open space. The County already has a designation for that.
The fuel of concern is probably the vast TPZ holdings of SPI. HSRA sued to prevent SPI from taking thousands of acres out of TPZ. If SPI divided its holdings in to 160-acre TPZ parcels and cut roads to each one, that would probably constitute a development which would require intensive study. That suit ended with SPI abandoning the change, which denies the County the property taxes they’d have gotten as the land came out of TPZ, while probably not protecting anything. That’s an opinion.
HSRA claims that the new ordinance was approved by incorrectly using the “notice of exemption” (which the court document incorrectly identifies as “CEQA review on December 22, 2011”) and claims that, contrary to what the County found, the planned changes are likely to impact the county negatively.
They state in the court document:
Here there is a reasonable possibility and a fair argument that the Ordinance’s allowance for residential estates on TPZ parcels will have the potential to cause or lead to environmental harm due to cumulative adverse impacts to public services, fire protection, wildlife or fish habitat, water quality, open space, scenic corridors, public health and safety and/or other important resources and/or values, which were never analyzed in the General Plan or the General Plan EIR. The allowance for residential development on hundreds of TPZ parcels also has the potential to lead to land use conflicts and growth inducing impacts that were also not analyzed. Because the Ordinance allows for residential development as a matter of right, it does not provide any hearing process for such development, meaning that future project level CEQA review may not occur due to the lack of discretionary action on the part of the County.
The Prospect has, in other articles, explored the rationale behind restricting “development” in remote areas. They are HERE
In their press release HSRA stated: “Lands zoned TPZ are afforded generous tax benefits in exchange for the (sic) being limited to timber production enhancing uses.”
The press release is not a court document, but even here, they’ve misstated the purpose of the law. It is to encourage timber preservation and production, but as an additive benefit. It isn’t to restrict TPZ land to just the “enhancement” of timber, which is a reductive interpretation.
The County also prejudicially abused its discretion in approving the Ordinance because the Ordinance allows for a number of conditional uses on TPZ lands that are not allowed under the General Plan including processing plants and packaging plants for forest products (and all necessary buildings and support facilities); commercial gas, oil geothermal, wind, solar, water and other well construction and related facilities, fire stations, information centers, ranger stations; environmental education centers, field stations, shooting and target ranges, cultural events, and communication towers. These uses conflict with the General Plan requirements for TPZ lands that exclude urban development or any other ancillary uses which do not enhance timberland viability or timber activities, or which generate revenues uncharacteristic of timber production or are a use for which a suitable alternative site is available outside of TPZ lands.
If HSRA is correct, if the General Plan prohibits those activities on TPZ land then the General Plan is wrong, and needs to be changed at once. The law forming TPZ allows most of those uses, though ranger stations are not often found on private land. None of those are prohibited by the law defining TPZ uses, and our General Plan would be screwing landowners needlessly.
However, we think HSRA is misapplying the General Plan, and casting its meaning too wide.
The proposed zoning change will frustrate the policies of the General Plan by allowing for large acreage residential estates and other incompatible conditional uses on TPZ lands, thus permitting the very development that the General Plan intended to restrict on TPZ lands.
In approving the project, the County has taken the position that it may adopt an Ordinance that allows for the development of a residential estate on a TPZ parcel as a matter of right,
Key to the argument, is the term “large residential estates”. That conjures images which might not be quite accurate. A landowner who builds a house on TPZ hasn’t changed anything pertinent to the law, and it might well not be a mansion. Is a house built by the property owner with the intention of managing the timber an “estate?”
We’ll suggest that here HSRA attempts to conjure a bogeyman, the rich landowner, aloof and selfish in his mansion surrounded by his lands. However, their bogey misses the very important point that if the landowner continues to use the great majority of the parcel to grow trees, the intention of the law governing TPZ is met. It doesn’t matter who builds what house, so long as the greatest use of the land is to grow trees.
Property owners are typically citizens and enjoy protection under the law. From the property owner’s perspective consider that many TPZ lands were put into TPZ without the permission of the owner.
(a)On or before September 1, 1977, the assessor shall assemble a list of all parcels, which, as of the lien date in 1976, appeared in the judgment of the assessor to constitute timberland, but which were not assessed for growing and harvesting timber as the highest and best use of the land.
(b)On or before September 1, 1977, the assessor shall notify by mail, which is certified and with return receipt requested, owners of parcels listed under subdivision (a) that their land has been included in such a list. (CAL. GOV. CODE § 51110)
The acreage taken by the house is taxed at a higher rate than the TPZ land around it, so the land no longer being used to grow timber is no longer taxed at the lower rate. Nothing in the original law intends to rob the property owner of any rights or deny any uses which diminish the intent of the law for the land: to grow timber.
Building a house on TPZ land doesn’t necessarily have to have negative effects. Road requirements mean roads are improved. That improvement alone might mean the end of some low-water crossings and other sources of erosion and siltation. It improves penetration into the forest to fight fires. There are many benefits to having residents in the hills.
However, HSRA believes the right of its members to look across the private land in the county without seeing a porch light is more important than landowner rights to properly use land.
High Sierra Rural Alliance has failed, in our view, to substantiate its claims. Its claims would put an unnecessary burden on those building in the woodlands. It strips rights from property owners even though there is no real evidence that single family homes on larger TPZ parcels necessarily degrade the environment, and we’ll suggest that people building homes to care for their land is a very, very rural thing to do. HSRA completely strikes out on the “rural quality” argument.
Neither do they make a compelling case that the General Plan intended to constrain the occasional and scattered residence. It is urban development the GP refers to.
Finally, they have failed to demonstrate how 227 homes scattered over 80,000 acres constitutes a sufficient impact that the “common sense” solution isn’t appropriate. The Planning Commission met and discussed the issue, the Board of Supervisors held public hearings and discussed the item at length. Qualified County staff spent hundreds of hours on the ordinance and citizens met on the matter, including a member of HSRA.
Finally, the Breast Meat:
Here is HSRA’s reward for being selfish:
1. For a Peremptory Writ of Mandate ordering the County to withdraw approval of the Ordinance and to follow CEQA and County General Plan policies in taking any further action with respect to these matters.
2. For a Peremptory Writ of Mandate ordering the County to implement the General Plan mandates set forth above; and
3. For a declaratory judgment that the County's proposed action is inconsistent with the current General Plan and that the County has failed to implement the mandatory requirements of the General Plan as set forth above;
4. For reasonable attorney's fees under Code of Civil Procedure § 1021.5. 5
5. For costs of suit.
6. For such other and further relief as the court deems proper.
Having only minor standing, failing to demonstrate any material harm, failing to demonstrate that the General Plan intends no rural homes, failing to demonstrate a lack of diligence on the part of the County, and attempting to curtail lawful uses of forest lands, the Prospect analysis awards the plaintiff nothing.
It is clear that if HSRA prevails, there will be a reduction in timber production land in the county. Owners and purchasers of TPZ might well recognize that the land has greater value if a residence can be established, particularly when timber prices are low. Sellers of TPZ land might decide to harvest prior to sale even though the market is low. There is a ten-year sunset, but ten years is not long in timber planning terms.
Lands that have residential value as well as timber production value might be taken out of TPZ and developed. One assumes HSRA would fight each attempt, but eventually the effect will be to limit the amount of timberland.
More negative consequences accrue from this and other actions by HSRA. They devalue the position of those who are genuinely concerned about specific projects or ordinances.
They also desensitize citizens to the dangers of bad land use. By constantly exaggerating the impacts of normal rural activities, the group “cries wolf” too frequently.
By behaving unilaterally, without input from or care for the community, HSRA has set itself apart.
Be Happy, compromise.