Clarity Blog

The following article by Laer appears on today’s Daily Caller website:

It should come as no surprise that the leftist legislators and authoritarian bureaucrats who run California are vehemently opposed to fireworks shows. After all, the shows are always fun and usually patriotic.

And against them they are. The California Coastal Commission has led the charge with a multi-year assault on the Sea World theme park in San Diego, which blasts fireworks over Mission Bay every night. That effort shipwrecked on the rocks of Sea World’s considerable political clout and even more considerable legal budget, so the Commission looked for a more vulnerable, less wealthy target.

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A recent event titled Multifamily Building Boom caught our attention.  We haven’t seen the two words – building & boom – used together for awhile, so we bought a ticket to this Building Industry Association program.

It turns out, there is a bit of a boom happening.   Economic conditions and government policies are driving Southern Californians to rent apartments – which is great news for apartment builders.

That’s the good news that was shared.  The tough news was that the entitlement process for proposed apartment communities (typically located on infill sites) can be very difficult.  Opposition from existing neighbors is often so intense that local governments have difficulty approving even the best projects.

Small-group meetings are an effective way to introduce your project to the community in an infill area.

What’s the solution?   Laer Pearce & Associates has developed five guidelines – based on our 20+ years of entitlement consulting – for successfully working with neighbors of proposed infill projects.

1. Start with a simple introduction: Start small. Send a letter, hold a small group meeting.  Let your new neighbors get to know more about you and your concept.  Be prepared to explain why the existing land use (be it a golf course or industrial site) is no longer viable and why your plan can be a positive alternative.  It’s critical they understand there’s a real need for change other than your bottom line.
2. Be inclusive and responsive: Create opportunities for two-way dialog with your neighbors so you can get input during the design process, and eventual buy-in on the final plan.  If you can’t incorporate a neighbor’s idea, explain why.  He or she will appreciate that you tried.
3. Paint the picture: Invest in professional materials that help tell your story through words, pictures, sketches and video.  These materials help neighbors overcome their concerns, and strengthen the opinion of those who want you to succeed.
4. Build a coalition:  It is important that decision-makers see a strong coalition of supporters from diverse backgrounds.  Your supporters will typically come from neighbors who you’ve built relationships with by starting small and being inclusive and responsive.
5. Deal with opponents: Opposition groups will form against most infill projects – especially when rentals or affordable housing are involved. You need to be prepared to respond to misleading statements that cross the line.  We add “that cross the line” because it’s important that you do not get distracted responding to every negative claim that’s made.

These guidelines will go a long way in decreasing the duration and cost of the entitlement process and increasing your chances of success.

Governor Brown almost sounded like a frustrated land developer earlier today when he talked about the impact litigation by environmental activists has on projects that are essential to meeting California’s demographic growth and protecting its frail economy.  Unfortunately, he wasn’t talking about the ecos’ endless legal challenges to new housing developments.

From the Sacramento Bee:

“In Oakland, I learned that some kind of opposition you have to crush,” Brown, the city’s former mayor, said at a renewable energy conference in Los Angeles.  “Talk a little bit, but at the end of the day you have to move forward, and California needs to move forward with our renewable energy.”

Brown said his office will “act to overcome the opposition,” helping projects overcome permitting and environmental challenges. The Democratic governor announced Friday that he had filed a legal brief urging a federal judge to deny litigation seeking to block a solar energy project in the Mojave Desert.

Yes, the governor is willing to “crush” the very environmentalists who were his strong supporters in the 2010 election – but only as long as it’s over government-subsidized alternative energy schemes. Providing housing for Californians? Rebooting the failed economy? Putting thousands back to work? That’s apparently not worth fighting for.

We’re not sure what we feel about government “crushing” environmental litigators. Having seen them slow so many very well-planned new home communities, driving up costs for consumers and driving down profits for businesses in the process, we confess we’re a bit tickled by the idea.

But two things bother us:  First, we can’t deny we’re sticklers for due process and are more than a little concerned when government gets heavy-handed and agenda-driven.  And second, we’d like to see an acknowledgment that useless litigation is just as bad when it’s used as a tool against home builders and, ultimately, home buyers.

Federal wetland regulators suffered a bad decade in the 2000s with the Rapanos and SWANCC decisions temporarily halting EPA and Corps of Engineers mission creep into the regulation of land no one but a regulator could consider to be “Waters of the US” or wetlands.

But like those nasty spirits in Poltergeist, they’re baaa-aack.

EPA released today a draft guidance it hopes will clarify which waters are protected by the Clean Water Act in light of these decisions and which are not.  To our reading, it seems the agency is a bit forgetful of the power the Judicial Branch has over the Executive Branch. For example, borrowing from a summary provided by the Association of California Water Agencies, the guidance would deem the following as protected waters:

• Traditional navigable waters [check]
• Interstate waters [check]
• Wetlands adjacent to either traditional navigable waters or interstate waters [watch out!]
• Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning they contain water at least seasonally [watch out!]
• Wetlands that directly abut relatively permanent waters [watch out!]

How long is a season? When do waters become relatively impermanent? How adjacent is adjacent? For an administration that doesn’t like loopholes when they apply to corporations, these seem like loopholes of a drive-a-truck-through-it scale.

There’s another bunch of possibilities too, like if a “significant nexus” [how significant?] is found, then “wetlands adjacent to jurisdictional tributaries to traditional navigable waters” would be under federal jurisdiction, as well as that good ol’ regulatory Pandora’s box, “other waters.”

We were glad to see swimming pools specifically excluded.  More significantly, “erosional features (rills and gullies) … that are not tributaries or wetlands” are excluded. This is significant in the arid West, where these features, no matter how ephemeral, have been subject to regulation as if they were little Mississippi Rivers and Okefenokee Swamps.

On the plus side, the Obama administration has just ensured unemployment insurance claims from attorneys with Clean Water Act expertise will dry up like a Utah rill in August.

The guidance is now undergoing a 60-day comment period.

City councils in Azusa, San Juan Capistrano and San Clemente each approved major land use projects over the past few months.  All three of these projects are now in a battle for survival as voters attempt to overturn project approvals through the referendum process.

These three incidents should serve as a cautionary tale for property owners:  You don’t just need the support of decision-makers; you need the support of more than 50 percent of the voters.  This support should be secured prior to a vote of a city council or board of supervisors because referendum signature gathering begins immediately after project approval.

As Orange County’s leading public affairs firm, we’ve helped clients defeat referendum drives. In one instance, our efforts helped give Yorba Linda its own high school, as our YLHS YES! campaign for Shapell Homes turned back opponents.

Here’s a review of the basic process under state law (municipalities may alter this process by ordinance, so be sure to check):

• Proponents have 30 days from approval of the ordinance to circulate a petition calling for repeal.
• There is no title and summary or publication requirement.  Proponents may commence circulating the petition as soon as the ordinance is adopted.
• The referendum must contain the full text of the ordinance or legislative act the proponents are challenging.
• Proponents must gather signatures from not less than 10 percent of the registered voters in the city according to the last report of registration.
• Any voter who has signed a petition may withdraw his or her signature by filing a written request with the elections officer at least one day before the petition is filed.
• The ordinance that is subject of a referendum is automatically suspended once the referendum petition qualifies [NOTE – this stops any activity on your property related to the approvals you just received].
• Once the city election official certifies the referendum has the requisite number of signatures, Council must either repeal the ordinance, or place the measure on the next regular municipal election, or call a special election to consider the ordinance.
• If a special election is called, it must be held no later than 88 days from the date the election is called.
• The City attorney prepares an impartial summary and the proponents and opponents prepare arguments for and against the referendum (and rebuttals) for the ballot statement.

A good reference:  California elections code section 9235-9242.  If you’re facing a referendum, or feel your project may face one upon Council approval, give us a call so we can talk strategy.

Just when you thought things couldn’t possibly get any worse for NIMBYs – the Not-In-My-Back-Yard activists who have plummeted in decision-makers’ perception from noble protectors of neighborhoods to crybabies wanting to win a big jackpot for their “hardship” – we came across this:

In their lawsuit, the homeowners say the project, which involves mixing soil and cement deep underground along the levee line, will be disruptive and could damage their homes and yards. They’re also concerned about noise from equipment that could approach 90 decibels, about as loud as a motorcycle.

Sounds like a run-of-the-mill NIMBY complaint, right?  But wait … these aren’t just any NIMBYs.  These are the folks who live along the 17th Street Canal in New Orleans – yes, that canal, the one famous for failing during Hurricane Katrina in 2005, leading to the destruction of entire neighborhoods.  And this is just the latest skirmish in a simmering battle between homeowners and the government that has spawned lawsuits, appeals and multiple court rulings.

The canal, by the way, was built about 100 years ago, long before any of these folks purchased homes alongside it.  At that time, they apparently thought it was a fine thing to have water cruising by their back yards at the level of their roofs.  But let’s not let that get in the way of them upping the decibel level of their whining.

The Center for Biological Depravity…er, Diversity, announced its top 11 priorities for bringing the U.S. economy to a halt in 2011.  It was going to go with 12, but making sure Jerry Brown appointed an ultra-enviro to head California’s Resources Agency has already been crossed off the list.

As you’d imagine, this year’s agenda is filled with plans to protect a whole slew of species from various man-made dangers.  If you’re a wolf or a bluefin tuna, this just might be your year.  Humans…not so much.  After taking baby steps last year, the Center hid in the middle of its list a rather Maoist priority to “Challenge the Overpopulation Paradigm.”  That’s right Joe Citizen, you and your 2.3 adorable kids (and their future kids) now have big fat target on your back.  As if an economic meltdown and global terrorism weren’t enough.

We’ll continue to encourage other groups to tackle overpopulation this year. We’ll distribute hundreds of thousands of condoms and ramp up the overpopulation dialogue through high-profile projects, including a study on the connection between overpopulation and diminishing water supplies in the Lower Colorado River Basin, the Center’s unique newsletter, Pop X, and targeted actions to Congress.

We’ll be interested to see their study on the Colorado River, which is facing challenges.  But that’s more so from several years of drought than too many newborns from too many “What Happens in Vegas…” nights.

Maybe the Center is grabbing for headlines to boost its coffers.  Maybe it’s tired of fighting on the environmental front lines and has chosen to try the back door.  Maybe it just doesn’t care for chubby babies with good short games.  Maybe all of the above.

Either way, it’s time to come to grips with the fact that you and your family are the bane of the world’s existence.  Happy New Year!

Read the rest of the Center’s 2011 priorities here.

Judge Oliver Wanger today dropped a bomb on the U.S. Fish & Wildlife Service and its supporters in the environmental movement by ruling that the Service’s efforts to protect the delta smelt by cutting off water supplies to folks and farmers from San Jose to San Diego lacked scientific justification.  In a 225-page decision issued late this afternoon, Wanger threw out the biological opinion (“BiOp”) written by the Service, and used by the Service to severely limit pumping of Sacramento-San Joaquin delta water to thirsty users to the south.

“[T]he public cannot afford sloppy science and uni-directional prescriptions that ignore California’s water needs,” Wanger wrote, as he endorsed some of the Service’s science as just fine, but called other elements “arbitrary and capricious,” that it “represents a failure to use the best available science,” and that the Service failed to address or explain “material bias” in the data.  He also said these mistakes “fatally taint” other scientific findings used by the Service to cut water deliveries.

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What were the three biggest late-breaking California water stories?  Well, the news-heads and policy wonks here at Laer Pearce & Associates have compiled them for you here.  You’ll find the Big Three here, or you can follow LPALand on Twitter for up-to-the-minute news and analysis. You can also sign up to receive the Big 3 via email here.  This edition:

CARB Sets a Standard It Can’t Meet

The California Air Resources Board apparently didn’t read the First Amendment before it decided to propose a regulation prohibiting false statements made to its board or staff.  Now we don’t condone lying, but if enacted, the new policy would have CARB deciding what’s true and what’s not.  Scofflaws could face various “penalties” to be named later…by CARB.  And as we’ve seen with CARB’s recent use of phony data and resumes to push its agenda, any dissenting opinion may be fair game for this new carbon-clouded truth Gestapo.

CARB’s public notice on the proposed regulation

Read Laer’s Cal Watchdog op-ed on the policy

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Laer was awarded the Gwen Rosebeary Award by the Building Industry Association, Orange County Chapter (BIA/OC) at its 44^th annual Installation Dinner on November 6^th.  The annual award is given to an individual who has demonstrated a long-term commitment and outstanding dedication to BIA/OC.

Following more than 25 years of service to the local chapter, including a decade on its Executive Committee, Laer was named a lifetime member of its board of directors last year.  He also currently serves as the Vice President/Public Affairs for BIA Southern California and has helped both organizations weather several crises, deal effectively with regulatory challenges, and communicate their messages to BIA members and the public.

The LP&A family helped to keep the award a closely guarded secret from Laer until the time his name was announced at the dinner.  They worked together to collect old (and embarrassing) photos of Laer and humorous antidotes for outgoing BIA/OC President Dave Bartlett of Taylor Woodrow to share with the audience.