CEQA in the San Joaquin Valley: A Boon to Citizens

Shrouded in mystery and misinformation, and once again under intense attack by developer-driven politicians, the California Environmental Quality Act (CEQA) is one of the least understood and most powerful weapons Valley citizens have against the negative effects of growth and sprawl.

Perhaps because it’s associated with lawyers and litigation, CEQA has never been recognized as the layman’s tool it really is. And mass media have done a poor job characterizing as it anything but an obstacle to progress. The truth is, CEQA is intended to be the average citizen’s resource for insuring development pays its own way, avoids detrimental impacts on quality of life, and mitigates negative impacts of population growth. Developers and their allies oppose CEQA because it exposes potentially expensive problems.

The Planning and Conservation League’s Everyday Heroes offers an enlightening view of CEQA, one rarely described in mainstream media, but one far more accurate than the demonizing and mystification preferred by those who oppose reasonable regulation of growth. The cases described therein involve everything from toxic wastes issues to preservation of wildlife.

One case involves our own Merced County, where, according to Everyday Heroes, the city of Los Banos, “substantially revised its General Plan to establish a new eastside urban limit line and to redirect urban expansion away from the GEA. CEQA’s mandate for integrated planning and environmental review also enabled the City, through the General Plan Environmental Impact Report, to develop a number of special policies designed to protect the natural resources that lie just beyond the City boundary.”

The “GEA” is the Grasslands Ecological Area, a 160,000 acre preserve of living history, where plants, animals and especially waterfowl represent one of our greatest successes at stewardship of California’s priceless natural resources. The city of Los Banos chose a “wise use” approach to development and planning, using CEQA to enhance the city’s appeal because of its proximity to one our greatest natural areas. According to Daniel L Cardozo,

CEQA is the only mechanism for comprehensive and coordinated land use and resource planning in the GEA. It has played an indispensable role in enabling the restoration of the resource by informing and influencing decision-making on a long series of development proposals in or adjacent to the GEA. Even more important for the long term, the CEQA process is shaping relevant General Plan policies to take into account the protection of the GEA.

Los Banos dealt with burgeoning population growth wisely and in so doing showed that CEQA can be critical factor in insuring preservation of California’s renowned natural landscape.

In Stanislaus County, two CEQA cases are especially noteworthy. The first, Stanislaus Audubon Society, Inc. vs. Stanislaus County Board of Supervisors, involves a “Negative Declaration.” In essence, a Negative Declaration is made when county supervisors review a development proposal and decree there are no conceivable negative effects resulting from the project.

In the late 80’s, Stanislaus County Supervisors declared no negative effects for a proposed golf course on Willms Road in eastern Stanislaus County. Willms Road was a favored destination for many Stanislaus Audubon Society members because of its diverse bird life. It features a wide variety of raptors, including Bald and Golden Eagles and is the only place in the county where birders regularly see Lesser Nighthawks. When they first heard about the proposed golf course, Stanislaus Audubon Board members were stunned at the Negative Declaration. Most felt that increased traffic alone should have been addressed.

Some of the board members knew enough about golf and golf courses to know that golf courses seldom make money as stand-alone entities. In fact, golf courses are often lead attractions for residential development. When Audubon members raised these issues with planners and supervisors, they were told their concerns could be dealt with later.

Concerned about wildlife issues, the growth-inducing effects of a golf course, including the problem of sprawl (Willms Road is distant from metropolitan areas), Stanislaus Audubon Society board members sought legal advice. They were lucky enough to receive pro bono assistance from Remy and Thomas (now Remy, Thomas, Moose & Manley), the most renowned CEQA experts in California. The ensuing litigation produced one of Remy and Thomas’s many published cases, in part because it contended successfully that the evidence supported a “fair argument” that “a proposed golf course/resort in a rural area might cause significant environmental effects.” The court didn’t agree with the County’s argument that possible negative effects could be dealt with later. The court ordered an Environmental Impact Review.

The Stanislaus Audubon case was significant because it set a legal precedent.  No longer would it be possible to address negative effects after the fact when considering development proposals. The old policy of kicking the can down the road and letting others pay the price was gone.

By far the highest profile and most typical CEQA case in the northern San Joaquin Valley was Diablo Grande. Once again, golf was an issue, but here the centerpiece of a project with a thirty year build out plan was a course designed by none other than Gene Sarazan and Jack Nicklaus. Celebrity-starved local media went gaga, and touted Diablo Grande as the “economic engine” that would pull the region out of perennial economic doldrums.

Pharmaceutical magnate Don Panoz, a charismatic entrepreneur whose long string of successes included a thriving winery and resort in Braselton Georgia, promised Stanislaus County a resort destination and development that would rival any in the west, save perhaps such iconic legends as Pebble Beach. Panoz was even associated with auto racing, another glamorous venture that further burnished his image as the hero who could provide the economic engine that would drive us to prosperity.

From the beginning, knowledgeable insiders wondered where Diablo Grande, situated in the parched hills of south western Stanislaus County, would get enough water to service such a large project. San Joaquin Valley residents find it easy to forget they are part of the arid southwest, a region that would be desert without the extensive system of dams and canals that has made it an agricultural paradise. The lush greenery of our fields and orchards is in many ways a misleading mirage; many of our farmers are literally out of water unless we have wet years, as the latest three year drought has shown us. Concerned that Diablo Grande would end up appropriating water from farmers, the Farm Bureau and a group called Protect Our Water filed suit, arguing Diablo Grande had not provided a reliable water source for its massive build out.

As is often the case, litigation dragged on for years. The upshot was, however, that Diablo Grande litigation provided another pivotal precedent for CEQA. Lead appellant attorney Rose Zoia, of Brandt-Hawley and Zoia, argued successfully in the Stanislaus Superior Court that Diablo Grande planners had failed to address water issues with an adequately detailed plan. While it’s hard to believe that prior to the Diablo Grande decision planning for water was haphazard at best, that was exactly the case.

Unfortunately for current residents of Diablo Grande, litigation only made it imperative that developers show a water source; it said nothing about water quality. By 2008, Diablo Grande homeowners were afraid to use water the California Department of Public Health said exceeded state limits for trihalomethanes, compounds strongly associated with increased risks of cancer. And in 2010, the Western Hills Water District proposed rate increases as high as 700% to stunned Diablo Grande residents. The District claimed the golf courses at Diablo Grande were using far more water than residents were paying for.

One disgruntled resident, in online commentary in the Modesto Bee, wrote, “I think the county and our system is to blame for all the ills….the county approved Diablo Grande….without ensuring that the builder has made provisions for water and sewer.” To this homeowner, the clear problem was too little regulation, not too much. It appears grandiose development proposals require more than glitz, glamour and golf to meet what most people consider ordinary standards for quality of life.

Today, developers and their allies in state and local office are again chanting, “jobs, jobs, jobs,” as they blame the state’s economic ills on regulation in general and CEQA in particular. Land use attorneys like Modesto’s George Petrulakis ramp up the talk show rhetoric and attribute Diablo Grande’s problems to “economic terrorism” fomented by “messianic environmentalists.”

Counting on a short public memory and the desperation brought about by a deeply troubled economy, those who call for deregulation can look on California’s long history of unbridled growth for encouragement. And if the all too painful lessons of Wall Street aren’t enough to teach people the dire consequences of deregulation, why should developers and their allies worry about a few disgrunted homeowners in Diablo Grande?