Similar to the issues noted in Parts III and IV, most of us assume that if a developer presents a proposal, our city will respond to it in some logical and methodical manner, which will reflect the best interests of the community. Two decades of involvement in community planning in Marin has shown me that this is not often the case.
In the Post World War II era, we have increasingly and very purposefully relied on consumption and growth in all its forms, as the foundation of our economic system. Real estate development is the municipal version of personal consumption. The more we grow the more tax revenues our cities receive, so we can provide more public services to more people, who will buy homes, shop and the new stores, and work in the new offices, which will bring in more sales tax revenues, which will allow us to take on more debt, which allow us to continue to grow even more… without end.
At this point our economy is so addicted to the consumption, development and debt cycle that we don’t even question it. Perhaps it’s time we did.
The case of Hamilton Field - Novato
In March 2015, Marin Sports Academy, LLC submitted a proposal to Novato City officials to build a 1,000 seat baseball stadium and travel-league sports training complex on the former Army Landfill at Hamilton Field. The proposed 55-acre, for profit, commercial development was in clear violation of the original land use plan designating Hamilton Field as a community park for the use and benefit of all Novato residents. Unfortunately, Novato planners have a history (the Millworks, the SMART station, the regional bus terminal, etc.) of rarely seeing a development project they don’t like (more grants, fees and tax revenues), and apparently, the bigger the better.
But why is that? Why does a city immediately begin processing a project that has so many obvious red flags?
The subject property is the old Hamilton landfill, which was “capped” by the Army Corps due to the presence of a variety of EPA listed toxic chemicals buried under the ground. The contents of the landfill were place there in the 1940’s and 1950’s, when environmental regulations were all but nonexistent.
In their October 2006 assessment, the San Francisco Regional Water Quality Control Board noted a long list of chemical contaminants associated with the landfill, which include:
…volatile and semi-volatile organic compounds, petroleum hydrocarbons, pesticides, poly-chlorinated biphenyls, and metals.
Their report also noted that
Pollutants were detected in the groundwater and soil gas beyond the permitted boundary of the Landfill, which suggested that pollution might not be contained within the Landfill.
According to the developer’s own geotechnical report, the proposed project faces significant physical challenges carrying considerable risks of violating the integrity of the cap. If that cap were to be compromised, the results could be catastrophic to health and safety of humans (particularly children), wildlife and aquatic life.
Preserve Novato was formed by community members in Hamilton and Bel Marin Keys to stop this proposal. CVP has provided legal counsel and financial support for public education for almost two years.
In addition to the threat of toxic discharges, residents are concerned with the excessive traffic, noise, and public safety impacts of this regional facility that would draw thousands of tournament participants into their single family, residential area, the site is served only by winding, two lane roads. Finally, the development could not only adversely impact the community’s health, safety, and quality of life, but could also threaten the habitat and wildlife in the newly restored $300 million dollar wetland that is contiguous to the development.
The community’s position has been crystal clear. The land is supposed to be an open field and public park land, not a for-profit, commercial development with semi-pro ball fields, a massive stadium, and other structures. They believe that the city’s desire to approve commercial development, which appeared to be because of the increased tax revenues it would generate, would be tantamount to selling out the principles of Novato’s General Plan for a few extra bucks.
The Sierra Club has also weighed in, strongly agreeing with the community’s comments.
Processing development projects without purpose
Although the developer offered modest concessions and the City indicated that it would require a “CEQA” process for the project, none of the community’s arguments had any effect on the City’s moving the project toward approval. In short order, the city undertook an assessment of Economic and Fiscal Impacts, Visitation Projections, and a Needs Assessment, all of which were carried out by consultants chosen and paid for by the developer.
Again, I fully understand that a city has an obligation to allow anyone to submit any type of proposal and must process it without prejudice. But this proposal was so fraught with issues from the beginning that the community should not have to spend extraordinary amounts to time and money to simply bring common sense to the table.
Before elaborate studies were commissioned about "visitation" and “economic” benefits, wouldn't it have made much more sense to address the toxics problems first and do studies about that?
Instead, the so-called studies produced by the developer’s consultants were predictably farcical and would never pass for objective analysis by any standards. As several community members brought to the City’s attention, their conclusions only supported the developer’s preferred proposal. And, oddly, the City seemed to encourage the developer to continue with his application, while also doing everything they could to distance themselves from whatever happened on the property.
When questioned, the City has acted as if they are powerless to stop the project. The developer only paid $10 for the development “easement” rights from the Army. The City could have purchased those rights at any time and preserved local control of the property. The only logical reason for not doing that would be because they knew that the potential environmental and public health impacts could be significant (it is, after all, a known toxic landfill), and wanted no part of the problems that would inevitably come with that.
But where does that leave the public? What about the public’s right to assume their government is looking out for their well-being?
From the beginning it seemed like the City wanted the developer to succeed in the hope that the project would bring in significant revenues, but they have been content to abdicate their responsibilities to the public and set aside the community values encoded in their General Plan to avoid future liabilities. However, their hopes may be misplaced since the City would ultimately have to approve and permit the project, and provide public services for it, which will put them directly in the path of future legal liabilities, anyway.
Still, one would think that in this situation the City would welcome community input and even emphasize a more transparent public process just to cover their behinds and to avoid accusations of any inappropriate involvement with the developer. However, their reaction to the brewing controversy over the proposal has been the exact opposite. They’ve become even less transparent.
“Transparency” as a hollow promise
In the past year, the City of Novato has been making pronouncements about the importance of transparency and an open public decision making process. However, in May 2016, when a member of Preserve Novato requested copies of public documents, relating to all discussions between city staff and the consultants that prepared the assessment studies, their request was denied on the grounds that this was “privileged information.”
Similar to the response the Friends of Corte Madera received about the WinCup files (Part I), Novato City Clerk, Shari Hartz, wrote,
Although the City is in possession of the records responsive to your request [communications between the City staff and their consultants], all of them are exempt from disclosure… under the deliberative process privilege [Emphasis theirs].
Her contention was that allowing the public to know what the staff was doing would restrict the
free and uninhibited exchange and communication of opinions, ideas, and points of view essential to the functioning of big government.
Hmmm. I thought those were precisely the reasons why the public needed to know what staff was doing, saying, and making deals about behind closed doors. Isn’t this the reason we have a Public Records Act in the first place?
With rare exceptions, the only documents that are privileged under the law are those that fall under “attorney-client” privilege, and even those are narrowly defined. In other words, just because the City Attorney sits in on at a public meeting, and responds to the questions of staff and elected officials, it doesn’t mean the minutes of their discussion are privileged. “Privilege” generally only covers documents or notes related to closed session discussions that involve specific litigation (not even “concerns” about potential litigation).
Why is it that I know this but highly paid city attorneys across Marin don’t… or pretend not to know?
Lately, in Marin, local governments have been taking the most aggressive position possible to extinguish the public’s right to know what they are doing. Asking for information seems to be interpreted as questioning their judgment. The across the board defensiveness makes you wonder what they are all hiding.
Subsequently, the First Amendment Coalition (“FAC”), a nonprofit public interest organization, filed two more requests (on June 7, 2016 and June 16, 2016) for the same documents. Both of these requests were also denied on the same grounds. As a consequence, the First Amendment Coalition filed a lawsuit against the City of Novato for non-disclosure of “secret emails” and other requested, public documents.
The FAC has called the City’s actions “inexplicable,” and commented that the City’s actions raise “serious questions about whether political influence has shaded or compromised the integrity and objectivity of the consultants’ work.”
In their petition (court documents here), FAC’s executive director, Peter Scheer, states,
The emails belong to the public. Novato can’t keep them sealed up just because they might prove embarrassing to some city officials.
The deliberative process privilege has become the mantra of government officials who don’t trust the public to know what their government is doing. We believe the privilege is overused and much abused.
The plot twists again and again
In a somewhat surprising turn of events, the developers recently announced that they were withdrawing their application and now intend to go directly to the Army Corps, in Washington DC, to obtain an approval to construct the proposed sports complex. Their contention appears to be that since the property is owned by the Army, their proposal to develop it is under the auspices of their Easement Agreement with the Army, not the City. Therefore, they contend that the City’s approval is not needed, nor are they beholden to local codes, California law, or other requirements.
All of this remains questionable.
Novato Community Development Director, Bob Brown, has confirmed that the applicant has withdrawn the project and that the City has ceased all processing of it. On the legal questions of whether or not the applicant can actually circumvent local government and be granted a development approval by the Army, he referred us to Novato City Attorney, Jeffrey Walker.
We emailed Mr. Walker and asked if the City’s interpretation of the law coincided with the developer’s. Mr. Walker did not respond to our inquiry.
However, our cursory reading of the terms of the applicant’s Easement Agreement with the Army is that it does not, in fact, provide for the construction of "structures" on the site. In the opening paragraph, it specifically notes allowing "athletic fields, roads, trails, walkways and parking," which are all surface uses, not structures. Nowhere in the agreement are structures noted. Also, the agreement includes numerous provisions about how the developer cannot in any way disturb the land (digging, trenching, cutting, filling, etc.).
This effectively makes building anything, even a bathroom building, impossible because all buildings have foundations and underground plumbing (sewer) connections, gas lines, water lines, and other ground disturbing components.
Furthermore, the Easement Agreement clearly states that anything having to do with the landfill and its toxic contents are subject to the requirements of all local, regional, and federal laws and agencies, which would include CEQA, NEPA, and other governing regulations.
Since all this is arguably the case, one has to ask, why did the City of Novato even begin to allow this application to be processed in the first place? Shouldn’t they have sought out a definitive legal opinion regarding the ability to construct anything on the site before wasting the applicant’s and the public’s time, money, and energy?
On September 8, 2016, the City of Novato suddenly reversed course, folded their bluff, and agreed to release all the documents requested by Preserve Novato and the First Amendment Coalition.
But, why does it take a lawsuit to get local government to be transparent?
In each of the cases presented so far, city staff worked counter to the interests of the general public they’re supposed to be serving. Yet, it’s doubtful that any of them believe they’ve done anything less than an exemplary job. Public criticism of public employees by elected officials in Marin, no matter how poor their performance, is unheard of. All our elected officials seem to do is shower praise upon public employees and grant them ever more generous compensation.
But, why is it that everything that is purported to be so harmonious and wonderful on the surface is in fact so dysfunctional? And why is it that a city's first response is always denial and obstinance, or worse?
Let’s look at our County government and see what kind of example they’re setting.
 Keep in mind that a CEQA process can include a categorical exemption (no studies or analysis), a Negative Declaration (no alternatives studied), or an EIR
 See the following articles: Hamilton Field Sports Complex – Critique of the Needs Assessment Study, Hamilton Field Sports Complex - Critique of the Assessment of Visitation Projections, and Hamilton Field Sports Complex - Critique of the Economic & Fiscal Impacts Analysis.