Review of 3/1/18 hillside projects appeal hearing
The 3/1 hillside project(s) appeal hearing was a total full house,
eclipsing just about any past crowd. This was must-see, must-be-there
local theater. The reason for such a high turnout in my opinion? Not
because of a mere three houses, but because of the symbolic value of a
project that crystallizes persistent tensions in town between certain
actors and cohorts.
One project?
Staff set up the hearing so as to economically deal with issues common to all three projects, this with pre-approval of the council, applicant, and appellants. By doing so, this lent credence to the contention that the three separate projects are really one project overall.
Brief history
The properties in question were modified through an administrative lot line adjustment. This determination and action was a land use precursor that set the stage for future conflict. City staff maintains that this process was all above board; project opponents see this as a pre-CEQA-piece-mealing move that happened under cover, and where sufficient public notice was not given to appeal or question the process.
Lot pad size interpretation is the key issue
In his staff report, Planning Director David Goodison noted that the lot pad size guideline was the main point of contention, and that there were “different interpretations” as to what that meant. This later came out in a stereotyped debate about exactly what the facts were. Goodison cut to the heart of the matter right away: to deviate from the lot pad guideline requires “substantial reasons to justify non-compliance.” This is the critical take home point. It’s not enough to just want an exception, you have to have substantial reasons why, and these substantial reasons have to conform to the Hillside Ordinance guidelines.
Substantial: of considerable importance, size, or worth. Considerable, real, significant, important, notable, major, large, ample, appreciable, goodly.
Guideline: A non-binding code of best practices. To depart from best practices requires a good reason. For example, to depart from medical guidelines requires a good justification as to why. The current debate over the meaning of “guideline” is similar to that of debates over what “theory” means in science. The correct and accurate interpretation is that guideline and theory are not representative of purely subjective opinions, but rather represent the best current understandings.
The appellants have other issues such as drainage engineering and trees, which I will not address in this essay.
Interpreting the guidelines
What are the different lot pad interpretations? One, is that there should be one 5000-square foot pad of built structures per 10-acre lot, period. This was the clear intent of the framers of the Hillside Ordinance. Two, is that there can be an unlimited number of 5000-square foot pads per 10-acre lot. Three, is an alternative cooked up by the developer to finesse more built structure space per lot.
To make an analogy, if 3000 calories a day is a recommended dietary guideline, the applicant is basically saying that every plate you eat can be 3000 calories. This is a spurious justification, not one based on adhering to health, which is the basis of the diet guideline. For the Hillside Ordinance guidelines, the applicant’s end game is about trying to justify an outcome not intended by the defined best practices.
Staff’s view at the appeal hearing was that the aggregate limit of one 5000-square foot pad per lot is the accurate interpretation. However, in the Planning Commission hearing that resulted in project approval, this staff view was not made clear, and the sense given was that it was up to the Planning Commission to interpret the guideline. At the 3/1 appeal hearing, David Goodison said that the proposed lot pad sizes “greatly exceeds the guidelines.” There is a “deviation of pad size area.” For example, one of the lot pads adds up to 17,000 some square feet.; another is over 20,000 square feet, the final is 8000 some square feet. This is 30,000 some square feet over the guideline as it was meant by the framers of the Hillside Ordinance.
Alternative facts
Discussion and case-making proceeded during the hearing, of how lot pad square footage was to be properly added up. What is a legitimate tally and why? Clearly, the interests of seeing more or less square footage as justified, was the driving force as to how to construe lot pad math.
The core arguments centered around how the various math then constitutes legal compliance, or non-compliance with the Hillside Ordinance. What is the real, true basis for a council decision? What this amounted to, from public comment and council member arguments, was the disputation of alternate sets of facts. The facts, in many cases, appeared to be contingent on many subjective backdrops, on ideology, on property rights literalism, on view-scape and hillside ecology as a public trust common resource, and from allegiances and animosities stemming from local Wall Street or local Main Street interests.
This is common in project disputes, that opposing parties have alternate facts and/or see the same facts differently. This is totally par for the course. The bottom line for a policy determination however, is not how fervently one believes in their alternate world view, but what is the regularity baseline formula, or sets of formulas, that in the end policy must adhere to?
Since people are born as experts in disputing just about everything, it’s no wonder that the legal profession evolved to professionally dispute facts and interpretations. In the case of this hillside aggregate project, the applicant and appellants have retained lawyers that are doing their best to show that their client’s view is the most correct interpretation. Professional disputers or not, it all gets down to the meaning of words in the end anyway.
Language and culture issues
Getting control of the language, and thereby the law, is the first step in exercising power and control. What we can see clearly is that the local Wall Street cohort, the applicant(s) and supporters, and the local Main Street cohort, the appellants and their supporters, have two different universes of values and facts that go along with them. These different universes collide at many public hearings, over hotels, wine tasting, and tourism/ resident balance.
On one hand are the subjective, socially constructed cultural reasons that put the wind in the sails of alternative fact communities, i.e. partisans. On the other hand, are policies and laws as written, that are meant to guide members of society at large, in some kind of orderly manner. When partisan actors simply want different outcomes, they will argue over the meaning of every last word.
National cultural war/ local cultural war
What is the explanation for the local tension and conflict surrounding a particular set of local Wall Street actors? The local business and residential communities are simply not well integrated, and have come to an adversarial place where their interests do not align. There are no relationships, no appreciation of differences. A pattern of conflict has been established. The Wall Street-level benefits are not shared, which is why some are so rich and others can barely get by (see the Hidden in Plain Sight study). The social costs for such unfairness and inequality fall disproportionately on the majority of people. This is all simply a fractal of national political polarization at the local level, the financialization of the economy, and the one-percent-ization of US wealth at the local level.
California is an extreme version of US inequity, and Sonoma is an extreme version of California. Thus, local culture wars here have the issue magnified to a great degree.
The local business community, in this hillside case, is represented by a developer and investment cohort that centers around a number of key actors that have proposed large projects right in the heart of town. Basically, there is a long-term war over the quality and character of the heart town in Sonoma. There is war of words about the overall costs and benefits. Many have taken sides. Within this side taking, animus and hard feelings have resulted.
The large turnout at the 3/1 hearing is part ways reflective of how many have a stake in the fight, and how compelling the fight is.
View-scape presentation
The view-scape to and from town was another Hillside Ordinance issue that came up. This then fit into a line of questioning from Vice Mayor Harrington: who produced the various studies that the facts are based on? The applicant or the city, or a neutral consultant? It appears that the view-scape has only been presented by the applicant’s architect. Therefore, there is an inherent principal-agent problem with biased information being presented here.
Council options
As the hearing proceeded, the city attorney outlined the various decision making options for the council in terms of project environmental review and interpretation of the Hillside Ordinance. Ask for more environmental review as a single subdivision development project and refer back to the Planning Commission? See the current environmental review as adequate? Refer back to the Planning Commission with direction to comply with the aggregate lot pad interpretation? Deny the projects?
And what if the applicant proposes new project configurations during the appeal hearing but the appellants are appealing the previous version? What of the appellant’s case and ability to respond then? Aren’t changes on the fly pulling the rug out from under an orderly process? The city attorney said that alterations that do not change the essential components can be considered anew (de novo) by the council, but if there are large changes that impact the environmental review, then the new proposal has to go back to the Planning Commission. This all begs the question of how any agreement in interpretation, and elimination of bias, will ever be gained if all the facts are constantly in dispute and there is no solid baseline that actors can agree upon? How will actors agree as to what is an essential component and to what degree it has or has not been changed?
As long as actor’s interests differ, and as long as city council members are poltiicians that represent factions, and as long as council members appoint Planning Commissioners to interpret the facts, and as long as special interests can spend endless time and money to lobby city staff in an Iron Triangle of influence peddling, there will never be a solid baseline of neutral policy, period.
In the end, it all really just comes down to three votes. That’s all you need to know about Sonoma city politics. Do you have three votes?
Appellant presentation
The appellant’s lawyer, Rose Zoia, in her presentation, said that the project(s) are inconsistent with the 5000-square foot lot pad guideline, and that the project(s) have been modified to the extent that they need to be sent back to the Planning Commission for new environmental review. Said Zoia, you find out if changes are significant by Planning Commission determinations, this is “not the city council’s burden.”
As per the Hillside Ordinance guidelines, Ms. Zoia explained that “should” is an obligatory term, not merely a subjective preference option. There have to be “substantial reasons that justify non-compliance.” 20,000 and 17,000 square feet are a long way from 5000, especially said Zoia, considering that the Hillside Ordinance guidelines are intended for lots 10 acres or more in size, and the combined size of the three lots under consideration is only eight-some acres total. If this were a chess game, I would say, check mate.
Said Zoia, each project before a decision-making body has to be looked at on its own merits according to the rules, not on the basis that other previous projects received exceptions. Ms. Zoia finished by noting that the Housing Accountability Act (the applicant has threatened to sue the city on the basis of the Housing Accountability Act) is intended to deal with affordable housing and not hillside McMansions.
Applicant presentation
The applicant’s (Bill Jasper and Jasper’s LLC/ Trust as proxy for Ed Routhier and Caymus Capital) presentation started with architect Clare Walton. Walton appears to be an innocent party ensnared in the vitriol of local Sonoma power struggle politics. Her presentation was read from a prepared statement and did not have much emotional weight. As with previous Walton graphic presentations, the views of the project(s) from town were glossed over quickly, and minimized, not giving anyone much of a sense of the actual visual impact from various vantage points in town.
Chad Moll, the applicant’s project engineer presented an alternate view of the facts, and argued about the meaning and interpretation of the numbers. At this time, I realized that the definitions of this project were a moving target difficult to keep track of, and what really mattered was whose version you have decided to buy into ahead of time.
Bill Jasper himself got up to present and promptly called the appellants NIMBYs. Jasper also demeaned the quality and integrity of the appellants and their supporters. Why he would question the integrity of people like Joe Costello, Vic Conforti, and Steve Barbose, and contrast that with the integrity of Suzanne Brangham, Les Vadasz, and Robert Demler, is an open question. The point? Maybe people who have so much money they don’t know what to do with it think that makes them more moral and right?
Jasper seemed to have multiple lawyers present, one for the project(s) and the other a personal lawyer. The personal lawyer made the case that other hillside homes had exceeded the 5000-square foot hillside guideline limit. David Goodison’s staff report also mentioned that this record of exceptions seemed to justify more exceptions. One might ask then, why even have any rules if people can just push the edge and that becomes the new law? Those older exceptions did not have the backdrop of a town embroiled in a Wall Street-Main Street power struggle. Now that the struggle is upon us, and push has come to shove, there are rules in the Hillside Ordinance, and they are the legal backdrop.
Council comment, Harrington and Hundley
When it came time for council comment, Harrington and Hundley came out for the 5000-square foot aggregate lot pad interpretation. Harrington said the 5000 was for home, parking, and yard and that was it, no pools etcetera; that’s what the ordinance says. Hundley said that there had been no substantial reasons given to justify non-compliance. Harrington said that the projects as a whole have been piecemealed, and constituted a single luxury subdivision, and that this should go to the Planning Commission to vet as one project. One initial study, for the whole of the project, could be done to see what kind of new environmental review.
Council comment, Cook and Edwards
I am always fascinated by the way Cook and Edwards frame their arguments, as they frequently, if not always, are on the local business community interests side of issues. This is an opportunity for me to understand an alternate universe of meaning. What are their reasons for mostly voting in ways I wouldn’t?
In all due respect to Mr. Cook, who I know is sensitive to public comments about him, I’m trying to stay focused on the issues. I like Cook personally. Issues are connected to people, so I can’t disentangle it completely.
Cook hewed to an interpretation that there was “wiggle room” in the Hillside Ordinance guidelines, but he did not make the case why by giving “substantial reasons to justify non-compliance.” Cook said there is wiggle room for “common sense.” “Sometimes you just have to do what is right”, he said. “Right” and “common sense” are themselves relative terms open to interpretation; these are not substantial reasons to justify departing drastically from the 5000-square foot guideline limit. What is right and what is common sense is different for different people; these are not universal policy baselines.
In my opinion, the tacit reason Cook did not state, was that private property rights trumps Hillside Ordinance guideline regulations. Property rights, however, are not a blanket freedom to do whatever one wants in spite of zoning codes. For example, would Cook and Edwards condone that anyone could have a cannabis dispensary or a vacation rental in their house? Zoning codes are part of exercising the “local control” that Cook espouses.
Edwards referred to constitutional rights, to be able to build what you want on your own property. Obviously Cook and Edwards see a general appeal to property rights as a substantial reason to grant the lot pad size exceptions. If this was a precedent, then general appeals to all other kinds of amorphous rights and ideals could be made as well, to justify voting for a policy or not. These would basically be political reasons, and not actual fact-based, Development Code-based reasons. If there is a fact-based substantial reason centered on property rights, to grant an exception to the 5000-square foot pad per lot guideline, let’s see it.
Here we start to break into what the Cook-Edwards values are, free market, minimal or no regulation, and property rights, as long as those things stay within a band width of associated right wing values. If an activity has left wing values, then it can be regulated and limited, and that is “common sense.” I’m not trying to be snarky here, just to honestly flesh out what Cook and Edwards appear to be saying. This analysis of what values puts wind in their sails, and of their reasoning process, will also apply to the wine tasting moratorium and cannabis issues.
The typical right wing paradox here is: no limits on guns, pollution, natural resources, mining, grazing, or property, but limits on immigration, voting, a woman’s right to choose, on pot etc. Cook may take exception to my call that he is right wing on the issues. As a liberal, I think I can make that case.
Cook also seems to have an ideal view of Sonoma’s past, one where everyone was friendly and there was no tension. This could be a hearkening back to the rural, small town, good old boy days, before any newcomers came. He could also, like many, be pining for days of civility and decorum. The hyper partisanship does get tiring. Why can’t we just get along? To be fair, Mr. Cook must see there is plenty of blame for local incivility on all sides, and at no time anywhere, did everyone all have the same interests.
Edwards tends to self-reference to make his points, for example, “I was on the SVCAC for eight years and the Planning Commission for seven, I fought the Rosewood Hotel, and I do a lot to serve this town”, and therefore I know and I am right. This is a variation on the theme of how long you have lived in Sonoma makes you more right than relative newcomers. Self- referencing is not a substantive argumentative technique, because no substance is given other than, “well, I do this, so it is right…”. Many people self-reference, and that in itself is not bad. With a public decision making body, however, substantive reasons are called to be given, so the public knows the basis of the decision aside from pure opinion.
Substantive decisions are not made on the basis of who did what, if they are good guys or not, how long they have lived here, how long they have been on commissions etc. Substantive decisions are supposed to have some traceable basis in fact, and be somehow objectively demonstrable, regardless of differing interpretations of the facts. A strong argument (and reason for a vote) has reputable citations, not mere unsupported opinions. A strong argument addresses opposing points head on. A strong, fact-based argument is not just stating a partial case so as to win.
Edwards made a good point about asking if the driveway counted as part of the pad?
Edwards argued about the meaning of the word guideline, that it left room for interpretation, same as Cook’s wiggle room argument. This is the central issue, yes. People are interpreting the guidelines differently. Yet there is the proviso that substantial reasons need to be given as to why. The public needs to hear Cook and Edwards’ actual reasons, so they can be measured against those of Harrington and Hundley.
One attempt at a substantive reason for departing from the Hillside Ordinance guidelines, was that past exceptions to the code justify the current excesses. This is a two-wrongs-make-a-right argument. This type of argument basically says that pushing the edge of the law then makes a new limit for the law. This would be consistent with a free market type of approach: that unregulated individual behavior results in an emergent larger good. Such reasoning should also logically result in allowing cannabis to be sold in town, and cannabis tasting etc., since it has already been sold and tasted in town for years anyway, or to allow anyone to have a tasting room in their house, or a vacation rental.
What are Cook and Edwards’ substantive arguments? “Right”, “common sense”, guidelines give wiggle room, private property, the US Constitution now trumps the local Development Code?
Endless appeals?
Another good point Edwards made was, what about the potential for endless appeals, if this process is sent back to the Planning Commission? Well, as long as there is such antipathy in the community between people who feel strongly about different versions of facts and right and wrong, then endless appeals may be the fate we have to deal with. That’s who we are. We live in one of the most extreme municipalities in the US in terms of how the issues break out.
Presumably it is the Planning Commission that makes determinations about the essential components of projects, as based on the Development Code, which is the solid, policy legal baseline. But then, if local actors don’t like that, they can appeal, which puts interpretation of the Development Code to politicians who are maybe more responsive to subjective values motivations than they are to any objective policy determinants. And if the council votes counter to what the Development Code says, then city can be sued, in an endless war of words and interests. Many are tired of the constant disputation. Does anyone see a way out? The real question, and next big power struggle, will be the wording in the new General Plan.
Alternate universes colliding
What we saw in the 3/1 hillside homes appeal hearing was two universes of alternative facts colliding in front of a council that just about exactly mirrored those two universes of alternative facts. Harrington and Hundley on one side, Cook and Edwards on the other. Mayor Agrimonti is in her own non-partisan universe. For Cook and Edwards, a free reign of business and money appears to be the highest value; this is what I call local Wall Street values. Other council members are open to business and money interests, but also represent other values, what I call Main Street values.
Trapped by our own minds
Everyone, including myself, habitually shoehorns all interpretation into their preferred buckets.
This is human perceptual nature, and something that we all are trapped by. How do we get locked into these subjective values buckets that we then see as incontrovertibly true? How can we be “a community” if differing opinions cannot coexist? As long as we all adhere to rigid but conflicting interpretations of the facts, we are in for more trouble, no matter what the General Plan or Development Code says.
Conclusion
The hearing will be continued on 3/19, as after six hours, and much more to discuss, it was mutually agreed by council and staff to carry on later.
A straw poll vote had Hundley, Harrington and Mayor Agrimonti agreeing that a 5000-square foot pad per lot should be adhered to, and that an environmental review of the three parcels as a one unified project should be done. It sure looked like the votes were there to support the appeal. Now the applicant has skated and has a respite.
We’ll see if the straw poll vote tally holds, or if two weeks of Jasper arm twisting can change Mayor Agrimonti’s mind. To vote for the appellants, and with Harrington and Hundley, Mayor Agrimonti will be on solid, factual ground, based on the best practices wording and intent of the Hillside Ordinance.
Limits of 5000-square foot pads total, per lot, would lessen all environmental impacts, and maybe result in project approval quickly, even on 3/19.
There are alternate interpretations of the Hillside Ordinance, as the applicant asserts, and that Cook and Edwards buy into. For Mayor Agrimonti to vote with them, I’d think she would, like everyone else, need to have the substantial reasons clearly articulated. So far, in six hours of hearing, this alternate interpretation argument has not been persuasively made. The reasons to grant a pad size exception have not been adequately stated. What part of any “property rights” document is going to be invoked to countermand the local Hillside Ordinance? If “property rights” can be an argument to evade zoning regulations, will that not set a precedent for all sorts of zoning code violations, rendering the local Development Code meaningless?
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