What Ought To Be a Law, Part II (Oh wait, it's already a law)
"In short, there are significant assertions set forth in the statement of overriding considerations which could support the policy choice made by the County. Unfortunately, these assertions are unsupported by the final EIR or other information in the record."
-- Court of Appeal, First District, Division 4, California, Nov. 4, 1992
- - - - - - - - -
Damn, I'm good.
But first, I have to get something off my chest...
MEMO TO THE SIERRA CLUB: Thanks for f-ing nothing!
Ah, that felt good (you'll see what I'm talking about in a minute). Now on to the matter at hand.
In case you missed it, local Assemblyman, Sam Blakeslee, is conducting a contest on who can come up with the best "What Ought to be a Law."
I've already submitted one brilliant idea -- that elected officials facing recall should not be setting their own recall election date (absolutely needs to change, but probably never will, because IF that law changes, then it will be an admission that what happened with the Los Osos recall process was a gigantic, VERY expensive catastrophe... so, that law, that badly needs to be changed, will, likely, never change... sucks, but that's just the way it is, I guess, huh?)
Well, I've come up with a second brilliant idea for "What Ought to be a Law."
This ought to be a law: The entire environmental review process, as required by law, for a development project in California -- a process that can consume years and millions of dollars -- should not be able to be simply tossed out the window by the government agency behind the development, using nothing more than an unsupported, three-page document called a "Statement of Overriding Considerations," just because the agency doesn't like the outcome of the environmental review process.
As it stands, astonishingly, that is the law in California (California Environmental Quality Act [CEQA]), and that's exactly what happened in Los Osos in 2001.
I first reported on the LOCSD's baseless "Statement of Overriding Considerations" at this link.
What a terrible law.
But... wait a sec... uh oh... what's this? Well, lookie what SewerWatch has uncovered.
It appears that the issue of government agencies popping out "substantively infirm" SOC's isn't uncommon in California. (Imagine that? A gigantic loophole exists in CEQA, and government agencies, including the 2001 LOCSD, jump through it every chance they get. Who woulda thunk?)
I always like it when I see official rulings where the officials are on the exact same page as SewerWatch.
Take my boys, P.J. Anderson (or "Peeje," as I call 'im), J. Perley ("The Pearl"), and Associate Justice, Poche, ("Poachman"). Those are the three judges from the First District Court of Appeals, in 1992, that wrote and "concurred" with that brilliant quote at the top of this piece.
I guarantee you, Peeje, The Pearl, and Poachman would love the story I wrote on the 2001 Los Osos Community Services District's fake SOC, because all four of us come to the exact same conclusion:
If a government agency is going to pop out a simple three page document -- an SOC -- that instantly wipes out months, if not years, of careful and expensive environmental analysis, then that agency better have a damn good reason, backed up with some serious "substantial evidence," for popping it out.
In their landmark ruling on whether SOC's need to be supported with "substantial evidence," Peeje, The Pearl, and Poachman concluded:
"Nonetheless, the Legislature has required that substantial evidence support CEQA findings... Accordingly, we find that a statement of overriding considerations must be supported by substantial evidence contained in 'the final EIR and/or other information in the record.' " [bolding mine]
That is so damn brilliant. And it also means that my second "What Ought to be a Law" idea, is already law.
Government agencies can pop out a SOC, alright. That's fine, as long as there is a valid reason for doing so, but they can't pop them out for no reason whatsoever, other than the fact that the agency doesn't like the outcome of the environmental review process, like the LOCSD in 2001, and a bunch of other government agencies in California, for that matter.
In their Statement of Overriding Considerations, the LOCSD concluded:
And that's it... the reasons stop there. Just those two are listed. And that's all it took to toss the entire environmental review process for the Los Osos wastewater project out the window -- a process that showed that sites downwind and out of town were "environmentally preferred," and, turns out, are much, much, much cheaper.
As I show in my piece, that first reason, logically, is flat out embarrassing.
A stack of official documents, including the county's recently released Fine Screening Report, show that all the extra stuff needed to accommodate a mid-town sewer plant adds anywhere from $30 - $50 million to the project, where the savings associated with the reduced piping and pumping costs from a centrally located facility saves something in the neighborhood of $3 million. Official documents, including the LOCSD's own, show that... all over the place, obviously.
It's laughably flawed logic, and, want to hear something even more hilarious? Officials with the County of San Luis Obispo, today, right now, are using that exact same embarrassing logic.
In their Pro/Con Report for the various sewer alternatives for Los Osos, the county's Technical Advisory Committee lists as a "pro" for the Tri-W project, "Central location reduces cost of collection system."
Tri-W's pros:
Yea, right... whatever. However, what they neglect to take in to account for that "pro," is that to build the sewer plant in a "central location" adds tens of millions of dollars to the project, and therefore makes it the "higher costs overall," by f-ing far.
Tri-W's cons:
See how that doesn't make any sense? Nice logic, TAC. (By the way, nice job, Los Osos, catching that. I have a question? Why do I always have to do all of the leg work, like showing that a small park was dictating the Tri-W location, or showing how the SOC is fake, or showing how a "pro" isn't "pro" at all? You guys couldn't see that last one, Los Osos? It's kind of obvious, dontcha think? Yet, I haven't heard one person, outside of moi, bring that up. And it's very important, because without that "pro," Tri-W doesn't have any "pros." And that crap about how the District already owning the site is a "pro," according to the county, is BS. According to District officials, the District desperately wants to sell that land to help with their bankruptcy proceedings, but can't because county officials, inexplicably, consider it a "viable alternative," and therefore CEQA prevents its sale. Unbelievable.)
In other words, "Tri-W's central location" isn't a "pro" at all, in fact, upon further review, it's a massive, massive, gigantically huge "con." County officials manufactured that "pro," just like the LOCSD. The difference is, I understand why the LOCSD did it, to CYA, of course, but I don't understand why the TAC did it.
Several months ago, I e-mailed county officials and asked them how is it that Tri-W's central location can be a "pro," when it's the "central location" that causes the site to have the "higher costs overall"... by far?
What a great question. Which means, of course, that county officials, like Paavo Ogren, the point man for the project, who raked in nearly $50,000 on top of his normal salary for getting the gig, will never answer it.
And, apparently, the Sierra Club doesn't care either if the Los Osos CSD makes up a Statement of Overriding Considerations to lock in an environmentally sensitive, mid-town sewer plant location -- a location that poses "the highest risks" for spills into a national estuary.
The Sierra Club sued the County of Contra Costa in 1992, AND WON, for the exact same thing the LOCSD did in 2001, yet the Sierra Club didn't lift a finger for the ESHA and national estuary in Los Osos, even though they had all that excellent precedence sitting in their corner. Thanks guys! I'm sure Los Osos appreciates the effort.
A couple of more quotes from Peeje, The Pearl, and Poachman, because they are just so great:
"In short, there are significant assertions set forth in the statement of overriding considerations which could support the policy choice made by the County (of Contra Costa). Unfortunately, these assertions are unsupported by the final EIR or other information in the record."
Oh, Lord. That is exactly what happened in Los Osos. As I first reported in Three Blocks, there never was a "strongly held community value" for a sewer plant that also doubled as a "centrally located recreational asset." That was an "unsupported" "assertion." And, without that "community value," Tri-W could not have happened. (What a mind-blowing story.)
and;
"Here assertions central to at least three of the twelve areas addressed by the statement are lacking evidentiary support in the record. Insofar as the statement provides a written account of the balancing process undertaken by the County it is substantively infirm."
The only reason I included that quote is because it contains the phrase, "substantively infirm." What a great phrase. Worth remembering. It applies to a lot in life.
and;
"We reverse the judgment and remand the cause to the trial court which shall: (1) issue a writ of mandate vacating the Board's certification of the EIR... "
See, Sierra Club? All you had to do was mention your air-tight precedence from 1992, in 2001, when the LOCSD submitted their "substantively infirm" SOC, and a court order would have been immediately issued "vacating" the certification of the Tri-W EIR. So easy.
And that's exactly what would have happened.
On a related note, the deadline for entries for the 2007 Pulitzer Prize in investigative journalism is February 1, 2008, and if the Tri-W project isn't officially "eliminated from further consideration" (just like the Andre1 site was months ago) by then, I'm going to be pissed.
You see, in September, 2004, I wrote my second cover story for New Times, Three Blocks Upwind of Downtown, where I was the first, and, to this day, only journalist to expose the Tri-W project for what it is -- an embarrassing, illegal, "bait and switchy," park-with-a-sewer-plant mess, yet, I can't cash in on that landmark story from three years ago BECAUSE the embarrassing, illegal, "bait and switchy," park-with-a-sewer-plant Tri-W project is still, considered a "viable alternative" by county officials, despite the fact that it is in gross violation of the Coastal Zone Land Use Ordinance, its SOC was illegal to begin with (major props to my boys, Peeje-meister, the Pearlster, and Poachie for that one), and it has zero "pros," a laundry list of egregious "cons," and, oh yea, the community hates it.
And because that mess is still considered a "viable alternative" by county officials, my story -- Three Blocks Upwind of Downtown -- HAS YET TO BE RESOLVED, three years after it was published, and therefore my Pulitzer entry won't have any teeth.
And unless county officials "eliminate from further consideration" the Tri-W project by February 1, 2008, I'm going to have to wait another freaking year to apply for my Pulitzer Prize in investigative journalism... which I'll win, easily. (I mean, c'mon? Woodward and Bernstein? Give me a break. They had it easy. First, there were two of them, second, they had the substantial resources of the Washington Post behind them, and, third, they were spoon fed all of their good information by Deep Throat.
I broke the Tri-W story in September, 2004, all by my little lonesome, with nothing more than my brain, journalism experience, and my Macintosh, and, I didn't have squat for inside sources spoon-feeding me information. Sure, after Three Blocks was published, some excellent sources came forth, but when I was researching Three Blocks, that was only me following a journalistic hunch. Well, me, Bruce Buel, and the rest of the Los Osos Community Services District.)
As it is, I'm already going to have to get some sort of exemption from the Pulitzer selection committee, because Three Blocks was published in 2004, and Pulitzer policy states that the printed article that includes the investigative journalism has to be published within the calendar year.
However, they also say something about how "electronic media," like blogging, can also be considered if it follows-up the initial printed article. I'm going to try and get around that "calendar year" thing by showing the Three Blocks/SewerWatch bundle over the past three years.
I'm confident I'll get the exemption, because, if I don't, the selection committee would be punishing me for being three years, and counting, ahead of the story, and that's not right.
In hindsight, the Tri-W project should have been dumped the day Three Blocks hit the streets. Clearly.
So, please, Paavo, Noel (Noel, my brutha, of all people, you're a looooong time SewerWatch fan, where's the love?), someone, anyone with the slightest bit of juice at the county level, please, officially pull the plug on the Tri-W project by February 1, 2008. I know you want to anyway, because I also know that you guys aren't about to put your solid, professional reputations on the line for an embarrassing, illegal, "bait and switchy," park-with-a-sewer-plant mess that the 1999 - 2005 LOCSD developed.
Look, you analyzed it, as per CEQA, and it's not going to work, as per SewerWatch.
So, just pull the plug now. Why not? That way I'll have a little breathing room for writing my Pulitzer application.
###
-- Court of Appeal, First District, Division 4, California, Nov. 4, 1992
- - - - - - - - -
Damn, I'm good.
But first, I have to get something off my chest...
MEMO TO THE SIERRA CLUB: Thanks for f-ing nothing!
Ah, that felt good (you'll see what I'm talking about in a minute). Now on to the matter at hand.
In case you missed it, local Assemblyman, Sam Blakeslee, is conducting a contest on who can come up with the best "What Ought to be a Law."
I've already submitted one brilliant idea -- that elected officials facing recall should not be setting their own recall election date (absolutely needs to change, but probably never will, because IF that law changes, then it will be an admission that what happened with the Los Osos recall process was a gigantic, VERY expensive catastrophe... so, that law, that badly needs to be changed, will, likely, never change... sucks, but that's just the way it is, I guess, huh?)
Well, I've come up with a second brilliant idea for "What Ought to be a Law."
This ought to be a law: The entire environmental review process, as required by law, for a development project in California -- a process that can consume years and millions of dollars -- should not be able to be simply tossed out the window by the government agency behind the development, using nothing more than an unsupported, three-page document called a "Statement of Overriding Considerations," just because the agency doesn't like the outcome of the environmental review process.
As it stands, astonishingly, that is the law in California (California Environmental Quality Act [CEQA]), and that's exactly what happened in Los Osos in 2001.
I first reported on the LOCSD's baseless "Statement of Overriding Considerations" at this link.
What a terrible law.
But... wait a sec... uh oh... what's this? Well, lookie what SewerWatch has uncovered.
It appears that the issue of government agencies popping out "substantively infirm" SOC's isn't uncommon in California. (Imagine that? A gigantic loophole exists in CEQA, and government agencies, including the 2001 LOCSD, jump through it every chance they get. Who woulda thunk?)
I always like it when I see official rulings where the officials are on the exact same page as SewerWatch.
Take my boys, P.J. Anderson (or "Peeje," as I call 'im), J. Perley ("The Pearl"), and Associate Justice, Poche, ("Poachman"). Those are the three judges from the First District Court of Appeals, in 1992, that wrote and "concurred" with that brilliant quote at the top of this piece.
I guarantee you, Peeje, The Pearl, and Poachman would love the story I wrote on the 2001 Los Osos Community Services District's fake SOC, because all four of us come to the exact same conclusion:
If a government agency is going to pop out a simple three page document -- an SOC -- that instantly wipes out months, if not years, of careful and expensive environmental analysis, then that agency better have a damn good reason, backed up with some serious "substantial evidence," for popping it out.
In their landmark ruling on whether SOC's need to be supported with "substantial evidence," Peeje, The Pearl, and Poachman concluded:
"Nonetheless, the Legislature has required that substantial evidence support CEQA findings... Accordingly, we find that a statement of overriding considerations must be supported by substantial evidence contained in 'the final EIR and/or other information in the record.' " [bolding mine]
That is so damn brilliant. And it also means that my second "What Ought to be a Law" idea, is already law.
Government agencies can pop out a SOC, alright. That's fine, as long as there is a valid reason for doing so, but they can't pop them out for no reason whatsoever, other than the fact that the agency doesn't like the outcome of the environmental review process, like the LOCSD in 2001, and a bunch of other government agencies in California, for that matter.
In their Statement of Overriding Considerations, the LOCSD concluded:
- An in-town site (Tri-W) was chosen over other locations because:
- It results in the lowest cost for the collection system by centrally locating the treatment facility within the area served: and
- It enables the treatment plant site to provide open space centrally located and accessible to the citizens of Los Osos;"
And that's it... the reasons stop there. Just those two are listed. And that's all it took to toss the entire environmental review process for the Los Osos wastewater project out the window -- a process that showed that sites downwind and out of town were "environmentally preferred," and, turns out, are much, much, much cheaper.
As I show in my piece, that first reason, logically, is flat out embarrassing.
A stack of official documents, including the county's recently released Fine Screening Report, show that all the extra stuff needed to accommodate a mid-town sewer plant adds anywhere from $30 - $50 million to the project, where the savings associated with the reduced piping and pumping costs from a centrally located facility saves something in the neighborhood of $3 million. Official documents, including the LOCSD's own, show that... all over the place, obviously.
It's laughably flawed logic, and, want to hear something even more hilarious? Officials with the County of San Luis Obispo, today, right now, are using that exact same embarrassing logic.
In their Pro/Con Report for the various sewer alternatives for Los Osos, the county's Technical Advisory Committee lists as a "pro" for the Tri-W project, "Central location reduces cost of collection system."
Tri-W's pros:
Yea, right... whatever. However, what they neglect to take in to account for that "pro," is that to build the sewer plant in a "central location" adds tens of millions of dollars to the project, and therefore makes it the "higher costs overall," by f-ing far.
Tri-W's cons:
See how that doesn't make any sense? Nice logic, TAC. (By the way, nice job, Los Osos, catching that. I have a question? Why do I always have to do all of the leg work, like showing that a small park was dictating the Tri-W location, or showing how the SOC is fake, or showing how a "pro" isn't "pro" at all? You guys couldn't see that last one, Los Osos? It's kind of obvious, dontcha think? Yet, I haven't heard one person, outside of moi, bring that up. And it's very important, because without that "pro," Tri-W doesn't have any "pros." And that crap about how the District already owning the site is a "pro," according to the county, is BS. According to District officials, the District desperately wants to sell that land to help with their bankruptcy proceedings, but can't because county officials, inexplicably, consider it a "viable alternative," and therefore CEQA prevents its sale. Unbelievable.)
In other words, "Tri-W's central location" isn't a "pro" at all, in fact, upon further review, it's a massive, massive, gigantically huge "con." County officials manufactured that "pro," just like the LOCSD. The difference is, I understand why the LOCSD did it, to CYA, of course, but I don't understand why the TAC did it.
Several months ago, I e-mailed county officials and asked them how is it that Tri-W's central location can be a "pro," when it's the "central location" that causes the site to have the "higher costs overall"... by far?
What a great question. Which means, of course, that county officials, like Paavo Ogren, the point man for the project, who raked in nearly $50,000 on top of his normal salary for getting the gig, will never answer it.
And, apparently, the Sierra Club doesn't care either if the Los Osos CSD makes up a Statement of Overriding Considerations to lock in an environmentally sensitive, mid-town sewer plant location -- a location that poses "the highest risks" for spills into a national estuary.
The Sierra Club sued the County of Contra Costa in 1992, AND WON, for the exact same thing the LOCSD did in 2001, yet the Sierra Club didn't lift a finger for the ESHA and national estuary in Los Osos, even though they had all that excellent precedence sitting in their corner. Thanks guys! I'm sure Los Osos appreciates the effort.
A couple of more quotes from Peeje, The Pearl, and Poachman, because they are just so great:
"In short, there are significant assertions set forth in the statement of overriding considerations which could support the policy choice made by the County (of Contra Costa). Unfortunately, these assertions are unsupported by the final EIR or other information in the record."
Oh, Lord. That is exactly what happened in Los Osos. As I first reported in Three Blocks, there never was a "strongly held community value" for a sewer plant that also doubled as a "centrally located recreational asset." That was an "unsupported" "assertion." And, without that "community value," Tri-W could not have happened. (What a mind-blowing story.)
and;
"Here assertions central to at least three of the twelve areas addressed by the statement are lacking evidentiary support in the record. Insofar as the statement provides a written account of the balancing process undertaken by the County it is substantively infirm."
The only reason I included that quote is because it contains the phrase, "substantively infirm." What a great phrase. Worth remembering. It applies to a lot in life.
and;
"We reverse the judgment and remand the cause to the trial court which shall: (1) issue a writ of mandate vacating the Board's certification of the EIR... "
See, Sierra Club? All you had to do was mention your air-tight precedence from 1992, in 2001, when the LOCSD submitted their "substantively infirm" SOC, and a court order would have been immediately issued "vacating" the certification of the Tri-W EIR. So easy.
And that's exactly what would have happened.
On a related note, the deadline for entries for the 2007 Pulitzer Prize in investigative journalism is February 1, 2008, and if the Tri-W project isn't officially "eliminated from further consideration" (just like the Andre1 site was months ago) by then, I'm going to be pissed.
You see, in September, 2004, I wrote my second cover story for New Times, Three Blocks Upwind of Downtown, where I was the first, and, to this day, only journalist to expose the Tri-W project for what it is -- an embarrassing, illegal, "bait and switchy," park-with-a-sewer-plant mess, yet, I can't cash in on that landmark story from three years ago BECAUSE the embarrassing, illegal, "bait and switchy," park-with-a-sewer-plant Tri-W project is still, considered a "viable alternative" by county officials, despite the fact that it is in gross violation of the Coastal Zone Land Use Ordinance, its SOC was illegal to begin with (major props to my boys, Peeje-meister, the Pearlster, and Poachie for that one), and it has zero "pros," a laundry list of egregious "cons," and, oh yea, the community hates it.
And because that mess is still considered a "viable alternative" by county officials, my story -- Three Blocks Upwind of Downtown -- HAS YET TO BE RESOLVED, three years after it was published, and therefore my Pulitzer entry won't have any teeth.
And unless county officials "eliminate from further consideration" the Tri-W project by February 1, 2008, I'm going to have to wait another freaking year to apply for my Pulitzer Prize in investigative journalism... which I'll win, easily. (I mean, c'mon? Woodward and Bernstein? Give me a break. They had it easy. First, there were two of them, second, they had the substantial resources of the Washington Post behind them, and, third, they were spoon fed all of their good information by Deep Throat.
I broke the Tri-W story in September, 2004, all by my little lonesome, with nothing more than my brain, journalism experience, and my Macintosh, and, I didn't have squat for inside sources spoon-feeding me information. Sure, after Three Blocks was published, some excellent sources came forth, but when I was researching Three Blocks, that was only me following a journalistic hunch. Well, me, Bruce Buel, and the rest of the Los Osos Community Services District.)
As it is, I'm already going to have to get some sort of exemption from the Pulitzer selection committee, because Three Blocks was published in 2004, and Pulitzer policy states that the printed article that includes the investigative journalism has to be published within the calendar year.
However, they also say something about how "electronic media," like blogging, can also be considered if it follows-up the initial printed article. I'm going to try and get around that "calendar year" thing by showing the Three Blocks/SewerWatch bundle over the past three years.
I'm confident I'll get the exemption, because, if I don't, the selection committee would be punishing me for being three years, and counting, ahead of the story, and that's not right.
In hindsight, the Tri-W project should have been dumped the day Three Blocks hit the streets. Clearly.
So, please, Paavo, Noel (Noel, my brutha, of all people, you're a looooong time SewerWatch fan, where's the love?), someone, anyone with the slightest bit of juice at the county level, please, officially pull the plug on the Tri-W project by February 1, 2008. I know you want to anyway, because I also know that you guys aren't about to put your solid, professional reputations on the line for an embarrassing, illegal, "bait and switchy," park-with-a-sewer-plant mess that the 1999 - 2005 LOCSD developed.
Look, you analyzed it, as per CEQA, and it's not going to work, as per SewerWatch.
So, just pull the plug now. Why not? That way I'll have a little breathing room for writing my Pulitzer application.
###
posted by Ron at
1:08 PM
|
8 comments
If you're looking to put some action down on who's going to win Assemblyman, Sam Blakeslee's, "
