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LETTERS: The Rancho Laguna CEQA Suit

The attorney representing a Moraga man who sued his town over its plan to build a fenced-in dog area breaks down the rationale for the suit and costs of that action.

 

Dear Editor:           

This is clarify some confusion concerning legal costs incurred by the Town of Moraga following its decision to contest the California Environmental Quality Act (“CEQA”) lawsuit that was filed last January by long-time Moraga resident Steve Smith.  The lawsuit was in response to the Town’s claim that the fenced-in dog area it was on the verge of establishing at Rancho Laguna Park (“RLP”) was a categorically EXEMPT Project under CEQA.  In other words, that no environmental review was necessary, at all.

Nevertheless, as the Town later confirmed, it had NEVER been entitled to claim the Project was EXEMPT.  That the Town needlessly incurred at least $58,000 in legal fees by wrongly contesting the lawsuit (rather than simply following the law, as it was required to do), is only a part of the debacle that has been taking place for almost four years now. 

That the Town incurred the costs is particularly troubling, given that from the outset, Town officials (including Staff, Park & Rec Commissioners and the three Council members who voted for the Project, and later the elimination of off-leash hours altogether) had been informed both in writing and at Council & Commission meetings that CEQA review would be required. 

Beyond that Town officials at all levels chose to ignore that CEQA applied, and, accordingly, that there was no basis for the Town to file a Notice of Exemption with the County, is that the Council choose to incur significant legal costs to contest the lawsuit, without simply first assessing whether there was sensitive habitat (requiring CEQA review).

Just having a biologist spending an hour of his/her time to make a brief onsite visit to RLP would have quickly confirmed the validity of the lawsuit.  And even though the Town ultimately paid an environmental firm $7,000 to do an assessment, this amount pales in comparison to the $58,000 in legal fees spent before the Council even thought about simply doing a quick  and cost-effective assessment of the validity of the CEQA claim (again, an hour’s worth of a biologist’s time would have quickly so confirmed).  Mind-blowing waste.

Another part of this almost four-year debacle is the proposed “Project,” itself, and how it would have needlessly eliminated one of the most popular and appreciated features of the park (the North side Picnic and barbeque area). 

Additionally, as to suitability and safety, no one is aware of any existing Dog Park that is as deficient as what would have been left, after the North Side Picnic and BBQ area had been eliminated.  To begin, no one is aware of a Dog Park that has wood chips as its ground cover, or is as narrow and full of trees, as this space would be.  The space, including obstructions and surface, is not suitable for the safe running and playing by dogs, or the walking exercise that dog owners have been able to experience with the 30 years of off-leash hours use.  Further, it would not be usable or accessible for people with disabilities, or balance issues.

Also, and very significantly, whether people were aware of the lawsuit or not, everyone should understand that BUT FOR the timely filing of it, the elimination of the North  Side Picnic and BBQ ( a much appreciated and wonderful feature of RLP) would have been rushed through, and completed by early or mid March of this year.

In other words, without the three Council members (Mendoca, Harpham and Chew) ever asking even one question about the adequacy, safety and accessibility of the proposed dog area (let alone expressing any concern about elimination of the North Side Picnic and BBQ area), it would have been gone, before the Community at large was ever aware of what was going on.

That the three Council members would have so mindlessly eliminated a wonderful feature of the Park, and to do so to create an unsafe and inadequate space for dogs and those owners able to access it, is stunning.

Consequently, to me, as private citizen (and not in conjunction with the CEQA suit), it was preferable that off-leash hours be terminated rather than that RLP be diminished by the needless removal of a wonderful feature of the Park. 

Accordingly, I expressed to the Council that it would be preferable to eliminate off-leash hours, altogether, rather than proceed with creating the inadequate and unsafe area that three of the five Council members were proposing to do. 

The thought being, at that time, that it would have been better to protect the Park from being mindlessly diminished, and then later seeking to restore the 30-year tradition of off-leash hours.  Now, thanks to the Referendum, the off-leash hours have been restored until the Council, either reconsiders, and rescinds their banning off-leash hours, or continues to seek elimination of off-leash hours by letting the issue go to ballot at a later election time.

In closing, hopefully, the above information helps clarify the validity of the CEQA suit to those who may have questioned it.  If not, at the least, I would hope that they realize that BUT FOR the timely filing of it, a wonderful feature of the park would have lost.  Not to mention that certain Council members chose to spend at least $58,000 in legal fees to contest the suit, before just simply paying for an hour a biologist time to inspect the Park.

A  simple inspection would have readily confirmed the validity of the suit, and that the Town was not entitled to claim the proposed project was categorically Exempt from CEQA review.

 

Best regards,

Bill Cosden
Attorney for Steven Smith in
Smith v. Town of Moraga

Tony Rodriguez July 10, 2012 at 04:25 PM
And what did the biologist find? No threatened or endangered species of any kind. Zero. (That rat is not threatened or endangered.) What apparently has to happen? A fence to cordon off a few dozen feet beyond the creek bank (an area that, we are told, has been fair game for all manner of use for the past 30 years). I don't think defending the outer reaches of CEQA compliance for technical or hyper-technical issues was really what the lawsuit was about. In any event, I continue to believe that people should turn their energies to finding a negotiated resolution, which means trimming back on the A to Z arguments ("balance issues" are really in play for people who are taking dogs to an off-leash area to run the dog?) -- less swords, more plowshares..
MollyB July 10, 2012 at 10:37 PM
@Tony - So let me make sure I understand your "no harm; no foul" doctrine for the Town of Moraga. If an employee of Moraga comes to a stop sign or stop light in a town vehicle, and if he/she is reasonably certain that he/she will cause no harm nor will be harmed, then he/she has the right to blow through said stop sign or stop light regardless of what the state vehicle code says. And if a whistle blower sees and reports, and possibly brings suit because the report is ignored, what would be a legal infraction for others, the city is justified in spending $58,000 to defend the employee's actions (as opposed to issuing a "mea culpa" and paying the fine, if there is one, and pledging not to act in such a manner in the future). And when the action of the $58,000 defense cost gets publicized, instead of coming down on whomever in the city decided that this was a battle to be fought, because of the "no harm; no foul" doctrine the community comes down on the whistle blower who filed suit. Do I have this right?
Fritz 'Congodog' Stoop July 11, 2012 at 01:34 AM
The point is the Town did not behave prudently, but instead made knee-jerk decisions that incited unnecessary expense. Can anyone say 'speed bump'? All the claims about 'a small vocal minority' wanting the park for their own use are supercilious and juvenile. The referendum is locked and loaded, ready to proclaim that the issue is really the protection of our pristine little park, which the Town (for reasons as etherial as the morning fog) wants to slice up like a frozen pizza and not at all about man's best friend. Sometimes the best decision is no decision. There is nothing altruistic about the forces at play here that want to abrogate a working traditional system for thirty pieces of silver from a private business that will bring noise, traffic and garbage to our mellow sanctuary.
2nd Generation Moraga July 11, 2012 at 03:27 AM
Mr. Rodriquez I don't believe you go far enough in calling out the hypocrisy of the letter above. This lawsuit was strictly about getting the TC to stop the project so the minority of off-leash dog users could retain their "RLP play area". Mr. Cosden's actions and those of his supporters were petulant and destructive, and cloaking these actions in "concern for the environment" is ridiculous. Mr. Rodriquez, I hope your interpretation of the referendum statute which you oulined in a separate post is accurate, and the Town can move forward with Town Manager Keimach's compromise plan.
Tony Rodriguez July 11, 2012 at 03:47 AM
2GM-- see Cal Election Code 9241, I believe; not much interpreting needed, it says "the ordinance" has to cool for a year, not the subject matter. Mike D. -- I completely agree that there is nothing to be gained from devolving into debate about the various stops we've made on this journey, whether it be revisiting the lawsuit, the ad hoc committee, the parks and rec comte process, etc. As you say, what's the point of debating the debate? I do want an intellectually honest discussion, so I call out things like above, and the incorrect statements that the TC "can't" address the issue for a year. Above all else, I truly do want people to stop firing and loading rhetorical cannon and to work this out cooperatively.
Mike D. July 11, 2012 at 04:58 AM
Mr. Cosden, your own plaintiffs version of events contradicts what you have written above. He claims you asked him over a glass of wine at the dog park to be the plaintiff so you could move forward with the lawsuit.. Your claim that the town was wasteful in responding to your lawsuit is another whopper. Your lawsuit set off a chain reaction of mind blowing waste(both money and time). Would you have filed if the "loser pays" frivolous lawsuit law was in effect in California(i.e.put your own money at risk)?  I believe you are a resident of Orinda. What many Moragans want is for the hurling of spitballs at one another to end and for the focus to turn to finding a productive solution. I don't think a letter to the editor rationalizing your lawsuit well after the damage was done helps move things forward
Fritz 'Congodog' Stoop July 11, 2012 at 02:05 PM
The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness.  ~John Kenneth Galbraith
Jon Chambers July 11, 2012 at 03:59 PM
Bill, can you please support your statement that, "as the Town later confirmed, it had NEVER been entitled to claim the Project was EXEMPT". CEQA exemptions seem pretty common for dog park projects. See, for example, pages 45-52 of http://sfplanning.org/Modules/ShowDocument.aspx?documentID=8804, where SF Park/Rec claims a CEQA exemption for a $150,000 renovation of Douglass Dog Park, or page 5 of http://www2.oaklandnet.com/oakca1/groups/ceda/documents/agenda/oak034433.pdf, where Oakland's Planning Commission finds a CEQA exemption for a dog plan area at Lakeview park (that would have covered an existing lawn area with bark/mulch). On the bark/mulch topic, Doggoes reports, "Mulch is probably the second most popular ground cover." http://www.doggoes.com/articles/dog-park-turf. Similarly, Windsor, CT reports "Bark mulch is a typical cover." http://www.windsordogpark.org/proposal.html Claiming that the lawsuit prevented the elimination of the North Side Picnic and BBQ area seems to ignore the fact that Plan C (the LD alternate to the Town's December plan) also coopted this area, while D2 and Jill Keimach's plans both retained at least some space for this function. Finally, it's hard to resolve your description of the debate as an "almost four-year debacle" with your assertion that "it would have been gone, before the Community at large was ever aware of what was going on". Was the process moving too fast, or too slowly--or does that depend on the decision made by TC?
Fritz 'Congodog' Stoop July 11, 2012 at 06:26 PM
Jon, You are a noble opponent. Key word, OPPONENT. Why are you so adamant about changing the pristine setting? It is much improved by the play structure. Are you so driven by the need for a practice field that you would essentially ruin our traditional use of the park, pen our pets, destroy the unblemished view with another fence. How about this, I believe this is an original offering (which is astounding considering the effort put into this debacle thus far): We fence in an area at the parking lot side of the lawn large enough for use as a practice field, a place for pickup games of all sorts, etc. The cost is minimal, Fence only, no path additions/extensions, no interrupted walking path for the large amount of walker/runners that use the park daily, no "dog" double gates, etc., etc. etc.. I see it as a near perfect solution for all concerned. It would take some 'training' by the dog owners as to how to perfect their visit duties and pet protocol. What say you? Can we compromise in this manner? Seems a win-win! Congodog
Jon Chambers July 11, 2012 at 08:10 PM
Fritz, I'm not really OPPOSED to anything other than misinformation. I definitely don't support a fence, although I'm willing to accept a fence if it helps address the problems with dogs that aren't properly controlled by their owners--the ones you accurately refer to as "animated accessories". I don't need a practice field at RLP, although I don't see a problem with a limited use practice field--IMO, practice is a valid use of the park. But I would personally trade the practice field for a good way to control the problematic owners. Most of my problem with Plan C had to do with the placement of the proposed fence--it was literally front and center. Jill's plan at least moves the fence back a reasonable distance. I don't like it, but I can accept it. Fencing in a field by the parking lot would seem to make the fence even more prominent, while still not addressing the other issues with improperly controlled dogs. All that said, I appreciate the spirit of your suggestion. There are definitely areas where we agree--we both don't like fences in general, we both don't like interrupting the walking path, we both don't want high costs, and we both want better behaved owners. Seems like there is enough common ground to find a compromise.
Nancy Lee July 11, 2012 at 08:38 PM
I take it everyone will be at the meeting tonight???
KFrances July 11, 2012 at 08:45 PM
Modern Conservatives just believe in limited government. Governments take power....as much power as they can get away with.... to keep things easy and profitable for them. (Ceqa lawsuits - or CEQA exempt when it serves them - ie. One Bay Area worry) The Moraga Dog Park should be a simple up or down vote by citizens of Moraga.
Robert Blits July 11, 2012 at 10:27 PM
Jon, You seem very fond of misdirection and your first statement following your first question to Mr. Cosden about CEQA exemptions and dog parks is exactly that. The CEQA law suit was to protest the destruction of a sensitive habitat in and around Rancho Laguna Park and not the dog park per se. Perhaps you care to find an example where “CEQA exemptions seem pretty common” for dog parks where that dog park actually destroys or is put in place on top of a sensitive habitat or perhaps examples of other projects that destroy sensitive habitats where CEQA notice of exemptions are common. Perhaps you can explain why the latest plan by the Town actually excludes this “sensitive habitat”, the same habitat that would have been completely “grubbed” (Jay Ingram’s words) and therefore destroyed had the CEQA law suit not been filed to actually protect it. Could the reason be that the Town excluded the area that was contested by the lawsuit in their latest dog park plan because when the Town finally did an assessment of that area (after having already incurred $58,000 of legal expenses) the Town was informed (again) that this area did indeed include species of concern and might also be an area where there may or may not be other protected species of animals or native plants.
Jon Chambers July 11, 2012 at 11:01 PM
Robert, let's be real here. I posed a reasonable question to Mr. Cosden, and you reply with flames. If you review recent correspondence posted on the Town website between Town Manager Jill Keimach, and David Shapiro, Mr. Cosden's co-counsel, you get a more balanced picture of the true flow of information. http://www.moraga.ca.us/council/meetings/2012/071112/XIARLPReferendum.pdf, pages 45 & 46. Ms. Keimach asks Mr. Shapiro: "Can you provide me with information the Town received before December that proved that an animal of special concern, specifically the dusky footed wood rat, had habitat at Rancho Laguna Park? I have requested several times that Tina [Mr. Shapiro's wife] send me your biological report, but have not yet received it. I was hoping the Town could use your study so we didn't have to pay twice for the analysis. I would still appreciate any information you have in order to mutually help us both save time and money, protect the park, and reduce redundant efforts." Mr. Shapiro replies: "On the CEQA issue, we didn't get a written report and Tina told me she gave you the biologists names with whom we spoke." From this exchange, it's pretty clear that the Town actively sought information on environmental concerns from plaintiff's counsel, but that there was no written information available. If there is any misdirection here, it's not coming from me. TRod's comments from yesterday seem to be particularly on point.
Fritz 'Congodog' Stoop July 11, 2012 at 11:03 PM
Nonsense! 'Limited Government is just another hackneyed bullet point used to comfort the middle class as they seek identity where there is none of consequence. And they are indistinguishable from most Liberals. It is in fact a one-party system. Corporate Monotheism is the true adversary and until the 'moneychangers' are reigned in, we haven't a chance at a system in which determinism and hard work have a chance at a payday.
Fritz 'Congodog' Stoop July 11, 2012 at 11:04 PM
But, of course.
Jon Chambers July 11, 2012 at 11:15 PM
Some of us have Wednesday night swim meets. May be there later. Understand we might be harming our kids with overly competiitive organized sports, but such is Moraga in the summertime.
2nd Generation Moraga July 11, 2012 at 11:33 PM
Interesting information on the town website: The much stated "1800 signatures" actually equated to only 1,014 "sufficient signatures", which is a total of 13 over the required 1001. I'm now for rescinding the ordinance, and then having the TC simply eliminate off-leash dog hours. Enough is enough.
Jon Chambers July 11, 2012 at 11:38 PM
Don't get too excited 2nd Gen. Think that when the County gets to the required number of signatures, they stop counting. So while 1,014 were actually certified, a much larger number could have been certified, if necessary. While I disagree with their approach, I have to give the off-leash advocates credit for collecting a large number of signatures in a very brief time period--they did a really good job on this. Now, if we could bring all that energy and enthusiasm to a compromise solution, we could get something positive done.
Ryan July 11, 2012 at 11:38 PM
So @ 1800 you were reasonable but now that it is just over 1000 you are just over it and want them to ban off leash hours completely? Somehow I don't think this is what put you over the top.....
2nd Generation Moraga July 12, 2012 at 12:08 AM
@JC: 1,830 unverified signature / 1,089 verified signatures / 1014 "sufficient" signatures. 75 "not sufficient" (3 not sufficient due to duplication). Not sure how they count them or if they count them all (it seems like they do). @Crime Dog: Yep, rescind the ordinance, eliminate the off-leash hours. Cost = $0.00. Enough is enough.
Ryan July 12, 2012 at 12:19 AM
You have been in town for 30 years at least, how long have these off leash hours bothered you? Why did it take you so long to stand up to these unruly dog owners? What about them using the park for a very limited amount of time per day makes you so upset?
Jose July 12, 2012 at 03:55 AM
I am pretty sure this "30 years of off-leash tradition" is low-balling the historical facts. Joaquin Moraga's own dog, Higgs-boson, was never on a leash. But despite that, the more relevant and important issue would seem to be this civil war in Moraga and the endless blame game which will not end! Some of us on the sidelines would love to end it for you before you make the national news. Put 2 proposals to a vote. The expense will be justified if it restores the peace.

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