The General Plan Update is Over, Hypothetically

by Muriel Zeller

The thoughts and opinions expressed are those of the writer, and do not necessarily reflect the views of this website, nor its other contributors.

Regarding the General Plan Update (GPU), Chairman of the Calaveras County Board of Supervisors Jack Garamendi said, “While this project, this document is not perfect, it is a major improvement over where we stand currently today.” A major improvement sounds pretty good, although I am still struggling to understand how a “dysfunctional chapter in our history,” as Garamendi characterized the thirteen year GPU process, could produce a “major improvement.” But I digress.

At the November 12 Board meeting, a resolution was adopted by a unanimous vote of our supervisors certifying the General Plan Update Environmental Impact Report (EIR), adopting the California Environmental Quality Act (CEQA) Findings of Fact and the Statement of Overriding Considerations, adopting the Mitigation Monitoring and Reporting Plan, and adopting the Calaveras County General Plan. In other words, the long and winding road toward a new general plan has finally come to an end. Or has it?

Supervisor Garamendi warned that there are those who “will miss the eternal handwringing and debate” and others “who would fight to the end, threatening to bankrupt our county through litigation if they don’t get a hundred percent of what they want.” Wait, who would want to litigate a major improvement?

Garamendi did not specify who these nefarious folks are that would be threatening the county with bankruptcy, but let’s say, hypothetically of course, that I want to sue the county, even though I’m not really a handwringer. It’s no secret that I am not happy with the GPU, because, for example, community plans were rescinded without replacement and adequate mitigation for the loss of agricultural land was eliminated.

For my hypothetical lawsuit, I’m going to imagine that the GPU violates CEQA, because, in part, the plan presents legally required mitigation measures as optional, and it defers the implementation of legally required mitigation measures to some unspecified time that may never come. Mitigation measures are intended to avoid or substantially lessen significant effects on both the built and natural environments, which often means development will have to pay its own way by contributing, for example, to road construction, habitat conservation, or the preservation of agricultural land. So what are my options? How can I make sure the county follows the law?

Fortunately, I know the answer. As the California Natural Resources Agency explains, “CEQA is a self-executing statute. Public agencies are entrusted with compliance with CEQA and its provisions are enforced, as necessary, by the public through litigation and the threat thereof.” I really want to make sure you get the part where it says that the public is responsible for enforcement of the state’s environmental law “through litigation and the threat thereof.”

The explanation continues, “While the Resources Agency is charged with the adoption of CEQA Guidelines, and may often assist public agencies in the interpretation of CEQA, it is each public agency’s duty to determine what is and is not subject to CEQA.” So the county is obligated to make sure it is following the law. The explanation concludes, “As such, the Resources Agency does not review the facts and exercise of discretion by public agencies in individual situations. In sum, the Agency does not enforce CEQA, nor does it review for compliance with CEQA the many state and local agency actions which are subject to CEQA,” like the GPU.

This puts quite a burden on the public, people like me. In order to enforce CEQA and sue the county, I would have had to “review for compliance” the county’s actions in adopting the GPU since 2006, which means I would have to be farsighted, committed, and self-educated, which sounds like a lot of work, but let’s assume I did the work.  Let’s assume I participated actively and sincerely for 13 years to provide testimony in formal public hearings and in written public comments regarding the GPU and its EIR from the beginning of the process in January 2006 until its completion in November 2019.

Because of the many legal issues related to state planning law and CEQA, I would have needed to hire an attorney to help me with my lawsuit. I couldn’t afford Remy ׀ Moose ׀ Manley, the county’s outside counsel, but maybe I could afford one really dedicated attorney who understands land use and CEQA, a guy who lives in the area and who has dedicated his career to protecting the landscapes of the central Sierra Nevada region, a guy who would reduce his rate because he believes in my cause.

Let’s just suppose that I did the work, hired the attorney, and went to all the trouble and expense because I believe it’s my civic duty. Let’s even suppose that I’m considering a lawsuit not to bankrupt my county but to make it a better place. Let’s get crazy and suppose I care about safe roads, evacuation routes, fire and flood prevention, economic development, housing, adequate water, aesthetics, agricultural land, our rural character, and the natural environment, all of which are impacted by the GPU. Given all that, yes, I might be willing to sue the county to protect my family and my community if I thought they were threatened by an illegal general plan.

Typically, litigation is a last resort to ensure compliance with CEQA. If Supervisor Garamendi is genuinely concerned about bankrupting the county, he and the other supervisors should have listened when citizens expressed valid legal complaints regarding the GPU. County officials could have responded to the threat of litigation. Fixing a flawed general plan would have cost the county less money than a lawsuit which will result in the county fixing a flawed general plan, hypothetically.

Muriel Zeller is a member of the Calaveras Community Action Project (CAP) Governing Committee and the Calaveras Planning Coalition (CPC). CAP administers the CPC, which has been advocating for sustainable land use planning since 2006. You may contact her at murielzeller52@gmail.com.

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