Environmental attorney, Robert C. Goodman, has filed a Petition for Writ of Mandate in Marin County Superior Court, on behalf of Mill Valley Residents for the Protection of Wildlife, against the City of Mill Valley. The Petition asks the Court to immediately “vacate and set aside” the City’s September 16, 2019 adoption of its Fire Ordinance Vegetation Management Plan (amending Chapter 15.04 of the Mill Valley Municipal Code to modify Section 4907 of the California Fire Code, hereafter known as the “Project”).
The Petition challenges the City’s approval of the Project on the grounds that it constitutes a prejudicial abuse of discretion in that in failing to conduct any legal CEQA process to assess potentially significant environmental impacts, the City of Mill Valley failed to proceed “in the manner required by law and as supported by substantial evidence.”
This action by the Mill Valley Residents for the Protection of Wildlife, against the City of Mill Valley’s abuse of discretion regarding is legal responsibilities under the California Environmental Quality Act (CEQA), is welcomed and long overdue.
For more than a decade, the City of Mill Valley, its staff, and in particular its City Attorney, have shamelessly made farcical claims of categorical exemption under CEQA. It fact, it has been their default position for every ordinance, decision, and project proposed, with the clear intention of avoiding their legal responsibilities to protect residents and our environment.
This pattern of abuse has continued even in the face being informed, repeatedly, of their illegitimate and illegal claims. Why our City has such blatant disregard for the law remains a mystery. However, the result has been that by attempting to avoid CEQA, the City has repeatedly tried to limit public hearings, suppress community input, and deny due process of its residents.
Mr. Goodman is a distinguished attorney with expertise in environmental law. He previously served as Trial Attorney for the United States Department of Justice’s Environmental Enforcement Section in Washington, D.C., and is a recipient of the Department of Justice’s Special Achievement Award and the U.S. Environmental Protection Agency’s Bronze Medal for Commendable Service.
Among other things, Mr. Goodman notes in his Petition that
“The Project will require the removal of significant vegetation, affecting no less than 5,000 residential structures, and critical habitat for numerous threatened and endangered species. As is evident from its unique and beautiful topography, Mill Valley contains critical vegetative habitat for numerous threatened and endangered species including, the California red-legged frog, steelhead and Coho salmon, the California tiger salamander and the Northern spotted owl, in addition to the California giant salamander which is classified as a “California Species of Concern” and “near threatened.”
“The Project will eradicate a significant amount of the City’s vegetative landscape thereby causing an overwhelming direct physical change in the entire environment encompassed by the Proposed Ordinance…
“The potential effects on the environment and threatened and endangered species will undoubtedly be felt even outside of the Project area… as these threatened and endangered species migrate, nest and reproduce in the surrounding County lands and waterways adjacent to the City limits in addition to within the City limits targeted by the Project.
“The Project will result in significant removal of vegetation which will cause dangerous erosion and flooding risks.” And “The Project will also result in the unnecessary destruction of California’s native plant heritage, diminishment of water quality, loss of cultural resources and habitat for wildlife, and loss of hillside stability for the purpose of wildfire vegetation management.”
The City’s failure to adhere to the requirements of CEQA is brazen. In addition to their failure to assess the unmitigated negative impacts noted above, the City has failed to evaluate alternatives to its Plan, failed to assess cumulative impacts of its Plan, and refused to consider substantial evidence provided by the community that contradicted their unanalyzed assumptions.
As is well stated in Mr. Goodman’s Petition,
“Respondent has the clear, present legal duty and present legal authority and ability to comply with CEQA. However, Respondent has failed and refused to perform that duty and has abused its discretion in failing to comply with CEQA. Respondent’s failure and refusal is arbitrary and capricious. Respondent’s decision to approve the Project is not supported by substantial evidence. The standard of review is set forth in Cal. Pub. Res. Code 23 § 21168.5.
“Respondent’s actions of approving the Project are invalid and do not comply with CEQA for the reasons set forth above. In failing to comply with CEQA and the CEQA Guidelines and by failing to prepare a full EIR for the Project, Respondent has committed a prejudicial abuse of discretion in that it has not proceeded in a manner required by law and in that the determination to approve the Project is not supported by substantial evidence.
“The public interest will suffer from Respondent’s [the “City’s”] failure to perform its clear public duty to comply with CEQA by preparing and certifying a legally adequate EIR. Respondent’s failure to perform the reviews required by CEQA undermines the CEQA goals of alerting the public and Respondent to environmental changes before they have reached the point of ecological no return. It deprives Respondent of the opportunity to mitigate environmental impacts. It fails to protect the environment and the interest of providing informed self-government. In the absence of adequate information and mitigation measures, the public and the environment will be significantly and adversely affected by numerous environmental harms.”
The black letter law and evidence against the City’s actions is overwhelming. One can only hope the Court sees the wisdom in the arguments made by Mill Valley Residents for the Protection of Wildlife and that it forces the City of Mill Valley to rescind its approval and comply with all the requirements of CEQA.
And, having had to push back for years against the City's abuse of the provisions for "categorical exemption" under CEQA, I personally hope the Court issues a stern warning against its future abuse by the City.
Bob Silvestri is a Mill Valley resident and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded only by individuals in Marin and the San Francisco Bay Area.