Open letter to Planning Director Jim Eggemeyer: We’re losing patience with your secrecy on Big Wave

Letter

Posted by
Wed, April 28, 2010


NOTE: An open letter from Darin Boville to Jim Eggemeyer, Interim Director of San Mateo County’s Planning Department. Jim recently took over as acting head of the department after the resignation of Lisa Grote.

Dear Jim Eggemeyer,

At a Planning Commission meeting in late March of this year you made the startling announcement that you would be allowing Big Wave to help complete its own environmental report and that your staff would assist in this effort. This was necessary, you said, since Big Wave was unable to pay the independent consultant to answer the hundreds of questions submitted by citizens upset with the scale of the Big Wave project and with the secretive-seeming process by which it was being moved forward.

You did not explain how a project budgeted at over ninety million dollars could have run out of money so early in the process.

You made this announcement on a highly controversial topic with no notice to the public—there was no agenda item concerning Big Wave at the Redwood City meeting.

Since the resignation of Director Lisa Grote and since your assumption of duties as Interm Director, your office has become unresponsive to public inquiries. This is unfortunate since as a public servant you have an obligation to serve in your position, however temporary, in a way that meets the standards of good government.

Immediately after your announcement Montara Fog submitted five questions to you. Since then I have received a few e-mails from your staff assuring me that the answers were on the way, that you were busy, that the questions were under legal review.

That was one month ago and still no answers.

It is reaching the point now, Jim, where Big Wave will be finished with its controversial review of itself before the public even knows what is happening or why. This is a poor example of open government.

Here are the five questions:

1)  The arrangement with Big Wave to help answer the public questions without a consultant seems unusual. Has this arrangement ever been used by your office in the past? If so what were the projects and dates?

2)  This arrangement regarding Big Wave was announced by Eggemeyer last week—but it seems to have already been in progress. When was this arrangement agreed to? When did the work begin?

3)  Scott Holmes, of Big Wave, is saying that he expects to answer only 10-15 of the questions. Is that your understanding as well?

4)  If so, who will be answering the remainder of the 245+ questions? County staff? If so, how many hours of staff time is that expected to take?

5)  Will there be any indication to the public on who answered which questions?

If you choose to answer I will happily print your responses here.

Darin Boville
Publisher, Montara Fog


Darin,  I suggest we start a list of questions to add to your five excellent questions. 

I’ll start with a few:  How much time has the Planning Department allocated for finishing the EIR?  How much will this cost the Planning Dept?  Where in the budget can this item be found?  Will the fees other builders/homeowners pay be raised to compensate for this expenditure or is there a reimbursement agreement from the Big Wave group?  Is this a courtesy that will be extended to other projects in the future - say for projects with direct public benefit?

I emailed my District 3 Supervisor, the County Planning Department and County Counsel over a month ago with a few questions regarding the Big Wave Project EIR and have not received a single response from the County.  I was however included in an email response from the Big Wave Project attorney David Byers.

The County Planning Department forwarded my email to David Byers of McCracken, Byers & Richardson LLP.  I’m not sure if Supervisor Rich Gordon and Mike Murphy, County Counsel also forwarded my emails to David Byers.  I have not received a direct response from anyone.

From: “David J. Byers” <[email protected]>
Date: March 24, 2010 10:06:43 AM PDT
To: “sabrina brennan” <[email protected]>, “Camille Leung” <[email protected]>
Cc: , “Michael Murphy” <[email protected]>, “Jim Eggemeyer” <[email protected]>, “Richard S. Gordon” <[email protected]>, “Carole Groom” <[email protected]>, “Rosario Fernandez” <[email protected]>, “Brenda Carlson” <[email protected]>, “Adrienne Tissier” <a>, “Mark Church” <[email protected]>, “Rose Jacobs Gibson” <[email protected]>
Subject: RE: Big Wave Project Environmental Impact Report

Camille,

As I expect from project opponents, the statements by Sabrina Brennan are incorrect. I didn’t know she was an expert on County policy or CEQA.  Actually under CEQA the EIR can be prepared completely by a project applicant and this is done so in other agencies.  In any event the EIR has been prepared by an outside consultant as the applicant has spent  $365,000  so far on its perparation.   I don’t have the time to repond to all the misinformation created by project oppenents but I did think it was necessary to confront the false claim of Ms. Brennan.
 
David J. Byers, Esq.
McCracken, Byers & Richardson LLP
870 Mitten Road
Burlingame, CA 94010-1304
Phone:  (650) 697-4890
Fax: (650) 697-4895
.(JavaScript must be enabled to view this email address) 

From: sabrina brennan
Date: March 23, 2010 11:39:31 PM PDT
To: Camille Leung <[email protected]>

Dear Ms. Leung,

For many years it has been the practice of the San Mateo County Planning Department to have both the DEIR and Response to Comments (FEIR) prepared by an outside consultant, without the applicant or his consultants interfering or influencing the process.  This best practice ensures that the EIR is reasonably independent of influence from the applicant.

The Big Wave Project Facilities Plan was written by the applicant as an advocacy document.  Some information from the Facilities Plan was used by the EIR consultants in the DEIR, so already their have been questions as to the independence of the DEIR.

CEQA reports must be unbiased which is not possible when the applicant writes the report. It is not appropriate to allow a proponent of a project to prepare any of the legally required environmental documents.

The proposal to delegate preparation of documents to Scott Holmes, Big Wave Project Director is improper because he is a strong proponent of the project and he is concerned about the future of his developmentally challenged child.

The Big Wave Project Environmental Impact Report should be independently prepared.

Thank you,
Sabrina Brennan

It’s instructive to read Sabrina’s letter and Mr. Byer’s response.

He describes Sabrina’s statements as “incorrect”, makes an irrelevant assertion, and then fails to refute Sabrina’s point, which is that this appears to be a mysterious departure from the county’s traditional practice, made without notice or adequate explanation.

CEQA basically allows an applicant to prepare the DEIR.  However, CEQA does not allow an applicant to prepare the responses to comments unless it’s done as an updated DEIR which then requires recirculation as a Revised DEIR.  Byers doesn’t actually address this point, although it doesn’t matter since any law that we cite will be claimed by Byers to not apply, be an incorrect interpretation, whatever.  My dad liked to say “When you ask a lawyer ‘how much is 2+2?’, the lawyer responds ‘how much do you want it to be?’”

I stopped by the Planning Dept. yesterday for a chat with planner Camille Leung. 

Camille said she asked Jim Eggemeyer, Director of Planning to respond directly to questions from the public.  She said, “I don’t know why he hasn’t responded.”

I asked when County Counsel would respond to the questions I emailed over a month ago and she said she expected a response several weeks ago and didn’t know if or when Mr. Murphy’s office would respond.

She said the Planning Department has requested the developer make some “significant” changes to the project with regard to traffic and water.  She said the negotiations with the developer are on-going and did not want to say anything specific because she said Planning doesn’t know yet what the results of the negotiations might be.

“...This is a poor example of open government…”

Rather, it is an open example of poor government.

Kathryn, Great questions to add to this list. It’s the largest development on the coast, oe of the most controversial, and as soon as Eggemeyer takes over the information flow shuts off—well, as Sabrina’s e-mails show, it shuts off as far as the public is concerned. Apparently the Big Wave folks are being copied on our correspondence!

Simply amazing.

I guess I could cut them some slack if Eggemeyer was a new guy who was still getting up to speed but he’s not—hasn’t he been there for something like fifteen years?

—Darin

I posted the MCC’s recent letter on Montara Fog, but I suppose it belongs here as well. This way we have a compendium of the questions pending re: Big Wave:

Re: Big Wave – Big Wave EIR Status

Dear President Gordon and Members of the Board,

We are writing to express concern over what we perceive to be a number of deficiencies with the Big Wave DEIR CEQA process.

The following are three broad areas of concern for attention by the Planning Department.

First, we would like a road map of the process for moving the project forward following the end of the DEIR comment period and the submission of 245 public comments. It is our understanding that the project applicant, citing economic hardship, has offered that Scott Holmes, Big Wave Project
Engineer—an interested party in the outcome of the proposal would be providing responses to the public comments submitted in response to the DEIR as part of a collaborative process with SMC.

We believe this will create a public perception of bias and unfairness. We request some indication of whether the current DEIR is likely to form the basis for continued evaluation or whether the applicant will be required to re-scope and re-submit the project either in a recirculated DEIR or, given the long-range phasing of the project, as a PEIR (Program EIR).

Second, we request that story poles be required for all proposed structures in order for the public to have a complete idea of the scope of the project.

Third, we have been alerted to the fact that the applicant has cited the Permit Streamlining Act as a basis for expediting the review of the proposed project. Is it your position that the Permit Streamlining Act applies at this stage of the project?

Thank you for your consideration.

Sincerely,
s/Neil Merrilees
Chair, Midcoast Community Council

>>Rather, it is an open example of poor government.


Ah yes… the coastside and it’s affectionate interaction with the County in it’s finest hour.

Have any laws/statutes/policies been broken yet? Just curious.

>>he coastside and it’s affectionate interaction with the County in it’s finest hour.<<

The irony of your post is that it is the lack “affectionate interaction” with the planning department that is the source of my complaint, and that of others.

Aren’t you a proponent of open government? Do you think Jim Eggemeyer is satisfying his ethical obligations in this regard? Or should we just wait while Eggemeyer stonewalls so that his back-room deals can be revealed to us in a fait accompli.

Is that how government should work?

—Darin

Kevin Barron:
“...Have any laws/statutes/policies been broken yet? Just curious…”

Well, the California Environmental Quality Act (CEQA) requires full disclosure and analysis of all environmental impacts of a proposed development project. Any significant impacts must be mitigated to less than significant, or else that is grounds for denial of the project.

Here we have a Trojan Horse project that imposes huge negative impacts on the environment, but where the County, through its typical planning department incompetence and ingrained collusion with developers, is both failing to disclose major environmental impacts and proposing little if anything to mitigate them. Is that a violation of CEQA? You tell us.

“through its typical planning department incompetence and ingrained collusion with developers, is both failing to disclose major environmental impacts and proposing little if anything to mitigate them. Is that a violation of CEQA? You tell us. “

No. I believe they are underway w/ filing an EIR. Granted not to your liking, but legally nonetheless.

“planning department incompetence and ingrained collusion with developers”

Tell us how you REALLY feel…

The zoning for the proposed Wellness Center does not allow residential housing.

The developer is trying to pull a fast one by claiming the Wellness Center residential housing would be allowable under the current zoning because it’s a sanatorium.

It is my understanding that a sanatorium/sanitarium is a medical facility associated with the treatment of tuberculosis before antibiotics.  The proposed Wellness Center housing does not qualify as a sanatorium or sanitarium.  The developmentally challenged adults who would pay to live at the Wellness Center are healthy and productive.  They are not suffering from tuberculosis. 

Developmentally challenged adults should be integrated into society.  To suggest they be quarantined in a sanatorium, away from community services is wrong.

The developer should find a site that is zoned for residential housing; located near a library, grocery store and ADA compliant sidewalks.

“...I believe they are underway w/ filing an EIR. Granted not to your liking, but legally nonetheless…”

Legally? We’ll see. The history of CEQA is full of examples of inadequate, incomplete, and otherwise flawed EIR’s in which lead agencies (in this case the County) tried to short-cut, subvert, or avoid following the law, only to be held accountable later at much expense to all. And that appears to be exactly what is on track to happen here.

>>The history of CEQA is full of examples of inadequate, incomplete, and otherwise flawed EIR’s in which lead agencies (in this case the County) tried to short-cut, subvert, or avoid following the law

Not going to go on a rant, but many folk feel CEQA, CCC et al have way overstepped their original charter to begin with, and like most big government, embellishing more problems that require governance, thusly justify their funding, growth, et al.

Frankly, the CCC needs to be sued more often than not by private industry. They are out of control in a myriad of ways. I’m sure that upsets some people, and not just realtors AKA the Lex Luthors of Coastal Nogrowthers.

I’ll be shocked if Big Wave ever happens, as I’m sure the outcry will extend to fixtures they use being made in some third-world country using child labor.. and thusly demanding a 500 page report by the developer, replete with 3 rounds of public commentary comprising 153 letters to the country requiring the developer to respond to each point, and respond yet again to counterpoint. It’s like Dilbert-meets-the-Marx-Bros at times.

Kevin, which parts of the draft EIR do you think are unnecessary?

Granted, the DEIR is a long document, but a *lot* of it is boilerplate, pasted in by the consultant, providing important background and requiring no additional labor.

“...realtors AKA the Lex Luthors of Coastal Nogrowthers…”

I think Lex Luthor might be offended by that statement.