League of Cal Cities
The following letter has been sent to the League of California Cities, formally protesting their decision to file an amicus curiae brief in the legal matter of CVP v The County of Marin Open Space District.
Ms. Carolyn Coleman, Executive Director of the League of California Cities
Re: Marin County Open Space District v. Community Venture Partners, California Court of Appeal for the First Appellate District, Case No. A154867 (Appeal from the Decision of the Hon. Paul M. Haakenson, Marin County Superior Court Case No. CIV 1701913)
Dear Ms. Coleman:
As a 25 year resident of the City of Mill Valley and president of Community Venture Partners, Inc., the plaintiff in the case of Marin County Open Space District v. Community Venture Partners, California Court of Appeal for the First Appellate District, Case No. A154867, I am writing to respectfully request that you immediately withdraw your organization’s Amicus Curiae Brief, dated March 27, 2019, in support of the defendant and respondent Marin County Open Space District.
Our reasons for this request are as follows:
1. The League has acted without the knowledge or consent of locally elected officials of cities in Marin County.
The issues being decided in this case are controversial, locally, and of concern to residents of all cities in Marin County. That said, the League has chosen to endorse Marin County’s position, at the request of the defendant’s legal counsel, without in any way notifying or soliciting input or the consent of any local, Marin city government officials or agencies, and in the absence of evidence of their support. To my knowledge, no city in Marin has ever taken any position on this matter.
In addition, as the League is surely aware, by submitting their brief and endorsement of the defendant’s arguments, it will most certainly be misperceived by the Court as having been done by the League on behalf of the cities of Marin County, which is absolutely false.
As a consequence, a number of elected officials in Marin, who are concerned about the League’s unauthorized action, have begun to submit letters to the League, copied to the Court, in protest.
2. By supporting the Marin County Open Space District in this matter, the League is endorsing an extreme position against the necessity for an adequate assessment of unmitigated, potentially significant impacts required by the California Environmental Quality Act.
The League is enabling the County in its attempt to set a dangerous precedent, which would hold that the existence of any program EIR of any kind, from any time in the past, regardless of how inadequate that program EIR might be, should be deemed sufficient to address any and all CEQA requirements for any future project, regardless of specific circumstances and specific unmitigated, potentially significant impacts that may be unique to a specific place or time or action by an agency. This dramatic vacating of CEQA would essentially neuter both the letter and spirit of the California Environmental Quality Act.
An affirmation of this contention could mean that no project-level impacts assessment is required before the decision to approve any project, so long as any type of prior program EIR exists, regardless of whether the program EIR ever addressed or even contemplated that project or the potentially significant impacts of the project being proposed. By inference, it could potentially remove all considerations about impacts on existing users of parks and open space, even from the intrusions and environmental damages caused by mountain bikes and motorized bicycles, for projects that propose to change trail usage, trails realignment, or a host of other project-level decisions made by agencies.
3.The League’s response to locally elected officials who have challenged the League’s action is unacceptable.
In response to a letter by a local City Council member challenging the League's action, Mr. Patrick Whitnell, General Counsel of the League of California Cities, responded as follows:
The League submits amicus briefs in cases where the legal issues in dispute are of statewide concern to all California cities. But when we become aware that a city is adverse to the position that the League is being asked to take in a case, the League will not participate. In this case, we were unaware that any Marin County city had an adverse position to that taken by the District on these two CEQA issues. No city directly participated in the case and we had no other information that would cause us to think that any city might have concerns with the League’s participation. [Emphasis added]
If a city wishes the League to withdraw from participating in this case, please ask them to have their city attorney contact me directly with that request.
We appreciate the League’s offer to withdraw their brief, and given the facts and circumstances I’ve presented we hope you will act on that. However, we still find his response problematic.
How can Mr. Whitnell claim to be “unaware that any Marin County city had an adverse position to that taken by the District on these two CEQA issues,” and that “we had no other information that would cause us to think that any city might have concerns with the League’s participation,” when the League made no attempt whatsoever to ask if this was the case? In light of the fact that he goes on to admit that “No city directly participated in the case,” one would normally interpret this as Marin cities being neutral on the case, at best. And, my personal polling of elected officials shows that they are decidedly against the League being involved in this case.
However, more egregious is that Mr. Whitnell concludes by saying, “If a city wishes the League to withdraw from participating in this case, please ask them to have their city attorney contact me directly with that request.”
The tone of this response is astonishing. By framing this as an “opt-out” situation instead of correctly framing it as a “can we have your permission” situation from the outset, the League is superseding the powers of our local governments and abusing its representational mandate. The League’s counsel knows full well that there is not enough time or staff available for any city to request, receive, and properly review and analyze all briefs, documents and evidence in this case (the administrative record is very large), then schedule public hearings on whether or not to support judge Haakenson’s decision or the County’s appeal.
4. By endorsing the defendant’s arguments, the League is endorsing arguments based on false statements made by the County, which conflict with the evidence in the administrative record.
The County continues to perpetuate the falsehood that the vast majority of emails and letters they received supported the change of use of the Middagh Trail to introduce biking, and supported the process they used to arrive at that decision on November 29, 2016. The County continues to claim that over 80% of comments were in favor of the County’s actions. However, the record of evidence shows that at best, emails and letters were 50/50 for and against.
However, while virtually all emails and letters against were from local residents, many of those in support were from parties, who did not identify where they lived (and whom our Internet searches found were not residents of Marin County).
Worse, the County’s briefs to the Court of Appeal continue to deny the existence of the public petition against the proposal to change the use, which was submitted to them in its original, hard copy form in 2016. This was a hand-circulated and hand-signed petition in which over 1,000 local residents, who will be directly impacted by the change, stated their unequivocal opposition to allowing mountain biking on the Bob Middagh Trail, which has for decades been only used by hikers and equestrians.
The County also continues to incorrectly claim that the District presently manages the Middagh as a five-foot-wide hiking and equestrian trail. However, inspection of the Middagh Trail after the improvements were completed show that while the maximum width of the new trail is five feet wide in some places, long sections of the trail are as narrow as 18 to 24 inches wide.
This is a very narrow, winding single-track trail on which to introduce mountain biking.
Again, we find the League’s involvement in this case unacceptable and must insist that the League of California Cities withdraw their amicus curiae brief, immediately.
Thank you for your consideration and this opportunity to submit our comments.
Bob Silvestri - President