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CVP vs MCOSD goes to the California State Court of Appeals

On July 17th, Marin County appealed the ruling in favor of Community Venture Partners, by Marin Superior Court Judge Haakenson, which prohibited the change of use on the single track Bob Middagh Trail, in the Alto Bowl Preserve, to allow mountain biking.

Community Venture Partners' opposition to the Marin County Open Space District’s plan and Judge Haakenson's carefully worded opinion were not about whether mountain biking was good or bad, but rather, it was based on the argument that the County violated the requirements of the California Environmental Quality Act (CEQA) in making its change of use decision on the Bob Middagh Trail.

The County filed its Appellant's Opening Brief on January 2, 2019 (click on the text link to read the Brief). Attorney Michael Graf, acting on behalf of CVP and other members of the community, filed our Respondent's Opposition Brief on February 14, 2019 (click on the text link to read that Brief).

In that Respondent’s Brief, CVP states the following:

In Respondent’s view, the central issue on appeal is… the validity of the District’s legal position that the impacts of the Project on existing trail users of the Middagh Trail are not cognizable impacts under CEQA, but instead simply ‘social effects’ unconnected to the physical effects of biking caused by the Project. Under this theory, it does not matter that neither the RTMP EIR nor Consistency Assessment analyzed how changing the Trail use to allow for mountain biking would impact existing users because these are not impacts to consider in the first place. See DOB, pp. 11, 45-53.

The trial court correctly rejected this position. See 4 CT 730-733.

And

Had the District completed a proper CEQA review for the Project, it could have identified whether there were mitigation measures that might avoid the significant impacts to existing users due to conversion of the Preserve into a bike riding connector route, and if such measures were not available, whether there were alternative approaches to achieving connectivity that would not require the conversion of the Preserve and Middagh Trail into a biking route. Here, these issues were never addressed, contrary to CEQA. See Pub. Res. Code § 21002.

The District argues that to uphold the trial court’s decision in this case would represent a “radical expansion of existing law.” See DOB, p. 49:5-6. This is incorrect. Existing CEQA decisions and Guidelines support the trial court’s ruling. Here, the District conducted no CEQA review whatsoever in approving a bike connector route through the middle of a County preserve along a historical hiking and horseback riding trail. The record contains considerable evidence that opening the Preserve up to biking will have significant impacts on the environment, including frequent physical and social impacts between bikers and hikers and horse riders. Given the facts of this specific case, upholding the trial court’s decision to require the District to consider these impacts is not an expansion of CEQA, but instead simply an affirmation of CEQA law and fundamental policy. See Pub. Res. Code §§ 21000 (b)-(d); id., § 21001(b).

The County’s arguments this time around remain essentially the same as they were in the trial court (See the County's Trail Court Opposition Brief here). The Appellant’s Brief goes as far as it can to rationalize their actions by creating a post hoc account of the chronology of events and their intentions to suit their purposes. We continue to reject their arguments and ask the court to do the same (see our Respondent's Opposition Brief).

Ironically, the County had ample CEQA remedies available to it, more than three years ago, when it was initially challenged by the community on this. It would have been relatively easy at that time to conduct a proper CEQA process with public hearings and comment, except for the fact that such a process would have undoubtedly revealed that their predetermined decision (possibly going back as far as 2014) was unjustifiable.

Having dealt with the County now a number of times on legal issues, in my opinion, I would sum up their standard approach as follows: Generally, start with a predetermined goal or way of operating, do a slip-shod job of things and as little as possible to comply with the law, then when you’re caught in the act, fight like hell and say and do whatever it takes to get away with it.

The County Counsel and the Board of Supervisors appear to have no shame.

The Alto Bowl Preserve is unlike other County open space areas

The Alto Bowl Preserve was the result of decades of community involvement and financial support to create a place of solitude in nature for hikers and equestrians. It is quite unique in how it came about. A letter in the record from Marla Orth to Pat O’Brien, then General Manager of MCOSD, in 2016, sums it up nicely.

The Alto Bowl Open Space Preserves - An incredible feat accomplished by the perseverance and commitment of Marin County residents and the City of Mill Valley. This was accomplished against all odds, as plans were well underway to construct 1100 high-rise apartments (first phase) to be followed by hundreds of additional mega-homes. Fortunately, these lands were purchased and then subsequently donated to the MCOSD for perpetual environmental stewardship. This was all accomplished by the generosity of 6,000 individual donors and the lobbying efforts of the City of Mill Valley to win a $1.6 million dollar grant under State Proposition 70. Not a single county taxpayer dollar was expended on this effort. It is a true example of public-private partnership and collaboration--- something we could use a whole lot more of these days. [Emphasis added]

The County’s “bass-ackwards” CEQA process

As numerous residents noted in their letters to MCOSD, starting in early 2015 and leading up to the agency’s approval of the Bob Middagh Trail change of use in November of 2016, it was clear from the beginning that the change in use to add biking on the Middagh Trail, was the only project being considered. It was the only option presented for comment at the August 2016 public workshops and the only project the public was asked to comment on. After the County’s decision to approve the project was announced in the winter of 2016, final plans, specifications and engineering commenced in January of 2017.

However, by that time the County was well aware that CVP was investigating the legality of their approval process, because CVP began filing Public Records Act requests as early as the spring of 2016, and continued to file such requests through the first quarter of 2017. It appears this prompted them to attempt to cover their tracks. As such, after the Middagh project was already “shovel-ready” and about to be presented for Board of Supervisors' budget approval, the County released a document they called a “Compliance Assessment,” which ostensibly explained why they were in compliance with CEQA and had no need to do anything further.

There is no question in my mind that the Compliance Assessment was done as an afterthought to cover their tracks, largely in response to CVP breathing down their necks. It was an attempt to legitimize the Middagh project approval decision that was made six months prior. The County now continues to argue, without evidence and quite indignantly, that the Consistency Assessment was planned from the beginning.

Based on the records that I've reviewed, the Alto Bowl proposal appears to have been hatched as far back as 2014, and its public process was intentionally limited, and “facts” were fabricated along the way, to reach a predetermined outcome. In my opinion and the opinion of many residents who participated in the process for several years, the County put the cart before the horse, sensed they might get caught, then back-filled with documentation after the fact, in direct conflict with CEQA requirements.

As I’ve said, it is impossible to predict the outcome at the Court of Appeals, but we pray the higher court sees the wisdom in Judge Haakenson's decision.


We want to thank all of our donors who have helped us bring forward our legal challenge. If you have not yet donated, please consider supporting the CVP Marin Open Space Legal Fund, to allow us to continue to defend your interests.


DONATE TO THE MARIN OPEN SPACE FUND by clicking HERE


Bob Silvestri is the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded solely by the support of individuals in Marin and the San Francisco Bay Area.