There is widespread concern that local politicians are exploiting California Governor Gavin Newsom’s mandates relating to the coronavirus pandemic to rubberstamp aggressive land use proposals by their political supporters, avoiding accountability in doing so and giving short shrift to the concerns of the residents bearing the hardship of those projects’ impacts.
On March 12 and again on March 19, Governor Newsom issued orders that set out guidelines relating to social distancing and curtailing social gatherings. Those restrictions extended to traditional public meetings and hearings, the convocations in which public agencies come together, in the presence of the public generally and their constituents specifically, to consider and deliberate on public issues and take official action by means of a vote. These assemblages are an intrinsic part of the manner in which democracy is administered in California, and the legislature codified the protocols and restrictions to ensure public participation in the governing process through the Ralph M. Brown Act.
The Brown Act, formalized as California Government Code § 54950 et sequitur, was authored by Assemblyman Ralph M. Brown and passed in 1953 as an act of the California State Legislature. It guarantees the public’s right to attend and participate in meetings of local legislative bodies. Originally a 686-word statute enacted in response to mounting public concerns over informal, undisclosed meetings held by local elected officials, the Brown Act has grown substantially over the years, embodying the concept and spirit of open government, and the degree of seriousness with which that openness is enshrined in American and California culture. It prohibits city councils, county boards, and other local government bodies from avoiding public scrutiny by meeting in secret, or holding “workshops” and “study sessions” from which the public is excluded. It further prohibits a majority or a quorum of elected or appointed members of governmental decision-making bodies from conducting so-called serial meetings in which one member of a panel speaks with another member of the panel and then a third member of the panel is contacted by either of the two that have already conferred with one another to form a consensus on official action to be taken. In this way, all discussion by a quorum of a public board must take place in public. The act requires that all issues or items to be discussed in an official meeting be disclosed on an agenda for that meeting at least 72 hours in advance of the meeting taking place. The act requires that members of the public be afforded the opportunity to address the panel with regard to each issue to be voted upon by the panel prior to any vote taking place. The Brown Act closely circumscribes the concept of confidentiality or secrecy in government, specifying four subjects which a governmental decision-making panel can discuss during an executive or closed hearing outside the earshot of the public, those being negotiations relating to the purchase or sale of property; potential or pending litigation; employee performance evaluation, discipline or termination; and labor contract negotiations. The Brown Act does allow a quorum or even all of an elected or appointed local body to attend a seminar or conference or similar educational gathering; neighborhood meetings, town hall forums, chamber of commerce lunches or other community meetings sponsored by an organization other than the city at which issues of local interest are discussed; meetings of other legislative bodies of the city or of another jurisdiction (such as the county or another city); purely social or ceremonial events without treating such attendance as a meeting of the body, in all cases provided that a majority of members do not discuss among themselves matters of public business. Members of a decision-making body who are not members of a standing committee of that body can attend an open and noticed meeting of the standing committee without violating the Brown Act, provided they are present only as “observers.”
The act has been interpreted to apply to letters and email communications as well, leading to restrictions on the number of parties that can be copied on electronic messages.
In response to the increasing threat posed by the coronavirus, Governor Newsom’s March 12 order suspended certain meeting requirements and restrictions of the Brown Act and Bagley-Keene Act, the latter of which applies to state legislative officers rather than local officials.
The governor further ordered that “all requirements in both the Bagley-Keene Act and the Brown Act expressly or impliedly requiring the physical presence of members, the clerk or other personnel of the body, or of the public as a condition of participation in or quorum for a public meeting are hereby waived.”
With regard to open public access safeguards relating to teleconferencing that are normally applied, the governor’s order suspended the requirement that each location from which the officials participating in the meeting be disclosed in advance; that each teleconference location be accessible to the public; that members of the public be able to address the body at each teleconference location; that agendas be posed at all teleconference locations; and that at least a quorum of the members of the local body participate from locations within the boundaries of the territory over which the local body exercises jurisdiction.
A major upshot of the order was that the decision-making body need not be in the presence of the public or its constituents during the course of the meeting, including while the public was offering its input electronically, telephonically or in proxy by writing.
Nevertheless, Newsom’s executive order yet required that local governmental entities abide by the Brown Act requirement that meetings be agendized and noticed 72 hours in advance; that the agenda be posted in at least one publicly accessible location from which members of the public would have the right to observe and offer public comment at the public meeting, consistent with the public’s rights of access and public comment otherwise provided in the Brown Act.
In issuing the order, Newsom called upon public officials to “use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to the provisions of the Bagley-Keene Act and the Brown Act, and other applicable local laws regulating the conduct of public meetings, in order to maximize transparency and provide the public access to their meetings.”
The order did not affect other key provisions of the Brown Act, including requirements to notify the public on each agenda of what is to be discussed at an open or closed session of the teleconferenced meetings, or the ability of the public to obtain agenda packets or other documents used by decision-makers for the meetings. Nor did the order dispense with the requirement that the decision-making panels publicly report what action they had taken after a closed session is concluded.
In his March 19 order, Newsom suspended some of the provisions of the Brown Act, most specifically those relating to the requirement that the meetings be held in a public venue. While considerable numbers of Californians accepted that the exigency of the coronavirus crisis dictated that certain adjustments in everyday activities as well as those of the government would be made, at least some of those closely attuned to the function of government assumed that officials functioning at the local level would accept the governor’s restrictions in the spirit in which they were made – as a gesture to ensure public safety and health – and that restrictions would not be abused by local officeholders who would seize the exclusion of the public from the deliberative process to take action that under normal circumstances would provoke controversy and tempestuous opposition so that those decision-makers could duck accountability for their decision-making.
To the chagrin of residents in several San Bernardino County cities, however, city staff members, council members and appointed commissioners have perceived the current circumstance to be one in which they are free to act without the restraint of public disapprobation, holding hearings on highly contentious issues outside the presence of the public, giving officeholders the luxury of voting in ways that they perhaps would not otherwise were they not physically isolated from those they were elected or appointed to serve.
For officials in a number of locales, the new ground rules have presented them with an opportunity to take action with regard to certain things which they know are out of favor with a vocal element of the communities they represent, and this has allowed and is allowing them to do so without being subjected to the rip current of resistance they would need to endure during the traditional public hearing process. Some public officials in jurisdictions where their city or agency was faced with projects, proposals or official undertakings that were out of step with the attitudes of at least some of their constituents utilized Newsom’s order to ramrod action through during these virtual hearings, where no prospect of them having to face the constituents whose sentiments they had defied existed.
Recent cases in point involve the cities of Upland and Redlands.
In Upland, two projects massively unpopular with the residents directly impacted by them have been considered by the city council and given go-ahead since the beginning of the month, in each case by a 4-to-1 margin when the vote was taken. In both cases, Upland residents importuned city officials to suspend action on the items until such time that crowd-gathering restrictions that are in place to limit the spread of the coronavirus are no longer in effect, allowing the issues to be more fully vetted in a conventional public hearing setting, where the give-and-take of interchange between city residents and those who represent them on the council is possible. In making those requests for a delay, it was asserted that consideration of the projects in question did not constitute essential governmental activity. City officials disregarded that assertion.
Originally scheduled to consider Bridge Development Partners’ proposal to construct on a 50-acre site north of Foothill and south of Cable Airport a 201,096-square-foot distribution center to be operated by on-line merchandise marketing giant Amazon at its March 23 meeting, the city council delayed considering the matter until April 1, at what was a special meeting to be exclusively devoted to the project. At its March 23 meeting and again at a specially called meeting held on March 31, the council was asked and then ultimately declined to postpone the April 1 meeting/hearing date for the project, which the Upland Planning Commission had considered and then originally recommended against proceeding with. Subsequently, the planning commission made an unprecedented reversal of that decision, and endorsed the project after being heavily lobbied by its proponents.
The council convened in the early evening of April 1, not physically in Upland’s city council chamber, but rather virtually from its respective members’ homes or professional offices, with Mayor Debbie Stone being the only elected member of the panel at City Hall, where, from her office by means of a video hook-up with the others, she conducted the meeting. A video of the council members and the audio of the proceedings, with a 30 to 40 second delay, was broadcast or displayed on the city’s local cable network as well as on the city’s website.
Upon Mike Poland, Upland’s contract planner, briefing the council on the project, and Community Development Director Robert Dalquest providing an encapsulation of the development agreement, Heather Crossner, Bridge Development’s first vice president for development, and Brendan Kotler, Bridge’s executive vice president, touted the project to the city council, after which 49 members of the public, virtually all of them Upland residents, weighed in with regard to the proposal. Of those, 19 inveighed against the project. One resident took no stand with regard to approval or disapproval. The other 29 spoke in favor of the project. As the last of the speakers, one who was not in favor of the project, began to marshal evidence that the project proponent had paid several of those who had made statements in support of the project money to make those statements, the final speaker’s access to the meeting microphone was terminated. The city council did not question Crossner nor Kotler about the veracity of that report, nor did it address during its deliberations the issue of whether the proponent had provided money to Upland residents to secure their statements of support for the project during the hearing.
Recurrent elements in the arguments made against the project were that despite its scope and intensity its advocates had used an inadequate mitigated negative declaration process rather than a full environmental impact report to achieve environmental certification for it and that city staff had misapplied and misinterpreted the city’s current land use and zoning codes to certify that a distribution facility project constituted a permissible use on the site, which bears industrial/mixed use zoning.
A common theme in the arguments made on behalf of the project was that it represented a substantial step forward for the city in terms of economic revitalization.
After discussing the project, the council voted 4-to-1 to give it go-ahead, approving the site plan and signing off on the mitigated negative declaration, a finding that the project had no irremediable environmental impacts.
Less than two weeks later, at its first regularly scheduled meeting this month, as opposed to the aforementioned specially-called one, the Upland City Council met Monday night, April 13. The most time-consuming item on the agenda was another highly controversial project, a proposal by FH 11 LLC, a subdivision of Frontier Homes, to develop 65 single family detached residential units on 9.2-acres within a 20.3 acres site near 15th Street that had previously been committed to serve as a stormwater detention basin, an intrinsic element of an elaborate flood control network serving as a repository for water that during a deluge is channeled away from properties to the north, including the Colonies at San Antonio subdivision, as well as other surrounding properties on the city’s northeast side.
Once more, city residents earnestly requested that the city council postpone a consideration of the matter until such time as a proper public hearing could be held, wherein the council would have the opportunity to hear in person the full gamut of residential input on the matter. City Officials declined to do so, and the city council once more held a virtual hearing in which the public was unable to have direct contact with the city’s elected decision-makers.
On Monday, April 13, Development Services Director Robert Dalquest and Joshua Winter, the city’s planner on the project, gave an overview of the project proposal, known as the Plaza Serena subdivision, explaining that it consisted of a residential specific plan, and would require that the council sign off on a general plan amendment along with a zone change and certify the mitigated negative declaration done for the project to give it an environmental certification. Andrew Winterstrom, of Frontier Communities, also fielded questions from the council relating to the project.
Thereafter, 22 members of the public, most of whom live in the immediate environs of the project, addressed the council. All 22 registered opposition to the project. Thereafter, the council voted, 4-to-1 to approve a motion by Councilman Ricky Felix seconded by Councilman Bill Velto to approve the residential specific plan, accede to a general plan amendment and parallel zone change, and then certify the mitigated negative declaration, tentative tract map and design review. Councilwoman Elliott dissented from the majority in the vote.
In Redlands, the planning commission met on Tuesday and the city council met on Wednesday, in both cases in virtual forums that excluded direct public participation, with the opportunity for those so inclined to participate telephonically.
At its meeting on Tuesday the planning commission convened, with Chairman Conrad Guzkowski, and commissioners Steven Frasher, Julie Rock-Rynerson, Mario Saucedo, Joe Richardson and Karah Shaw participating through some order of electronic means. It was not clear where the commission was physically located, and whether they were jointly assembled or separate.
City officials had initially sought to use the planning commission to put its imprimatur on a request by Mistretta Canyon Partners, LLC for it to be granted a second one-year extension on a previously granted tract map and conditional use permit for a subdivision of approximately 182 acres into 24 single-family residential lots and three lettered open space lots, located south of Highview Drive and east of South Lane, in the agricultural (A-1) district along Live Oak Canyon Road. In doing so, the city represented the proposed action as a simple one which required no discussion, placing it on the Tuesday April 14 meeting agenda’s consent calendar. The consent calendar is reserved for routine and non-controversial items. Other than placing the item on the agenda, the city had made no effort to alert those in the immediate vicinity of the project or those who had previously weighed in on the project that the commission was poised to take action on the matter.
Live Oak Canyon is the first exit off the 10 Freeway east of Yucaipa Boulevard, most highly recognizable as the location of the seasonal outdoor Live Oak Canyon Christmas Tree Farm and Pumpkin Patch. Live Oak Canyon runs approximately four miles in a southwesterly direction where it intersects with San Timoteo Canyon. Along this roughly four mile stretch is a patchwork of five governmental agencies, a checkerboard of the counties of San Bernardino and Riverside and the cities of Yucaipa, Redlands and the sphere of influence of Calimesa.
Chairman Guzkowski, after being informed that there were members of the public who were intent on being heard with regard to the project, pulled the action item off the consent calendar.
“I know we have public comments on this,” Guzkowski said. “We received an extensive amount of them.”
Catherine Lin, the project planner for the subdivision proposal gave an overview of the project.
The project is located on vacant and unimproved property designated in the city’s general plan for resource preservation. It is zoned for agricultural use. When the city in 2005 gave approval to the development of the 180-acre property into 85 residential properties, a lawsuit ensued which resulted in the placement of Measure R on the ballot, as a result of which the city’s voters had the option of keeping or changing the agricultural zoning on the property. The city’s residents voted in favor of keeping the agricultural zoning there intact.
Nonetheless, permission to develop the property was sought using a loophole in the city’s hillside grading ordinance. That resulted in a court case in which a stipulated judgment was entered on December 14, 2006, giving the applicant an entitlement to proceed with the project. The parties involved in the suit agreed to allow a planned residential development not to exceed 36 lots with no further environmental impact reporting or certification required. The city purchased 60 acres from the developer to ensure it would remain as open space, pursuant to an amendment of the stipulated judgment. In 2015, the city planning commission approved a tentative tract map for a subdivision of 24 homes on the now-approximately 121-acre site. When the project wasn’t under way by 2017, the tentative map was given a two-year automatic extension under state law. It was subsequently given a further discretionary one-year extension by the planning commission last year. The planning commission was this week tasked with granting Mistretta Canyon Partners another extension.
Pat Meyer, the representative of Mistretta Canyon Partners, said the project had been reduced from the original development proposal to 36 units by the Mistretta Family, who then reduced it to 24 lots clustered in the northwest sector of the property after the city purchased 60 acres of what he said was the roughly 180 acres involved. He said that the project now sets aside 81.48 acres of the approximately 120 remaining acres currently owned by the family in its natural state, including wildlife corridor. “Out of the original 180 acres, 141-and-a-half-acres are now preserved as open space,” Meyer said.
Though the city officials had hoped the matter would zoom quietly past the commission, an alert activist informed other like-minded individuals on Monday that the item relating to Live Oak Canyon was going to be discussed at the meeting the next day, and the city received as of 3 p.m. on Tuesday 18 emailed comments and three voicemails, all opposed to the extension, which the commission was thus obliged to have read into the record or hear.
Redlands Planning Manager Brian Foote read the 18 written comments into the record, which took him 20 minutes and 15 seconds.
The three voice mails in opposition to the extension were not heard during the hearing.
The written communications raised issues with regard to biological resources, drainage, erosion, cultural resources, open space preservation, traffic, aesthetics and fire prevention.
Lin said it was her professional opinion that the issues raised in the most recent round of comments had been addressed in the previously filed environmental impact report for the development and that mitigation measures relating to those issues had been included in the original conditions of approval, such that no further environmental analysis was warranted.
On a motion by Richardson, seconded by Frasher, the commission voted unanimously to grant the extension and make a finding that no further environmental review was required.
Dave Matuszak, the president of the Friends of Live Oak Canyon, told the Sentinel he did not believe the commission should have considered the extension, given the intense public passion with regard to the project and the inadequate opportunity to express those opinions available at Tuesday’s forum, given the coronavirus safety restrictions imposed on the public.
“I have concerns that the meeting was even held,” Matuszak.
Matuszak said, “Our organization called the Friends of Live Oak Canyon came into existence more than thirty years ago for the purpose of preserving the natural environment of Live Oak Canyon. That is our stated goal. I have presided over the non-profit organization for about thirty years. I have been involved with all five different government agencies and regularly attend many public hearings relating to any local government action to be taken with regard to development or any other issue. So, I was shocked that the meeting took place. I was given no notification of the meeting. I have been very active with the City of Redlands for over three decades. They know who I am and that if there is going to be any discussion relating to any type of development that I want to be noticed. I received no notification. I found out about it late the night before the meeting. I had to rally our organization at the last moment to make sure there was some public testimony that reflected the position of our residents. Our residents accounted for nearly half of the written public comments. All were against the extension.”
Matuszak continued, “I am not aware of anyone whose testimony said it was a good thing to extend that permit, yet the planning commission voted unanimously to make the time extension. I would question whether the members of the planning commission were listening to the members of the public.”
Matuszak said, “My first question to the planning commission is: Are they being responsive to the people they represent? If you look at Tuesday night’s meeting there was a blatant disregard of the issues that were raised by the residents of Live Oak Canyon. Their decision to extend the permit was a slap in the face to our residents.”
Matuszak said he would further ask, “Is the City of Redlands doing what is reportedly being done in other jurisdictions? Are they minimizing public comment by holding what should be considered non-essential public hearings? It’s not clear to me if this is an intentional attempt to minimize public comment and slip a decision through without it being noticed, or if it is simply an irresponsible and reckless policy to hold a non-essential public hearing during a state of national crisis brought about by the COVID-19 pandemic. Ultimately, it is the Redlands City Council’s decision to regulate their management’s public activity. And doesn’t anyone in the planning commission have any concerns about holding a non-essential public hearing in these times for their own safety? Perhaps the answer lies with an exposé of whether the Mistretta group donated to any of the council members’ campaign funds.”
Matuszak said he resented local public officials using the emergency situation to slip out from under their obligation to hear and redress the public-at-large’s concerns.
“I frequently attend those meetings,” Matuszak said. “I’m in a high [coronavirus] risk category because of my age and preexisting medical conditions, so I intentionally didn’t attend the meeting. I did respond in writing, but public testimony is always more effective than written testimony. If you are sensing a pattern of this going on in other places as well, I believe there should be some questions asked of local government and particularly the City of Redlands. Quite frankly, I think that the governor of California should put a stop to all non-essential meetings and particularly meetings like what was held yesterday with the processing of the request to extend the time for that project.”
Government should apply the same standard to itself that it is imposing on citizens, Matuszak said.
“Restaurants are closed,” he said. “Gatherings of more than ten people have been banned entirely and the City of Redlands was conducting a meeting that was non-essential. That meeting should have been postponed until it was safe for the public to attend.”
At Wednesday’s city council meeting, the mayor and council members discussed issues relating to the coronavirus emergency, but did not address the concept of limiting the city’s virtual meetings to essential business.
-Mark Gutglueck