The Pinnacle
December 10, 2004

Developers get early EIR access
Environmental group decries Santa Clara County policy that allows developers to see environmental impact reports not available to the public

By Jonathan Jeisel, Pinnacle Staff Writer

An environmental group is challenging the way Santa Clara County's government reviews its development projects, alleging it unfairly and illegally allows developers confidential access - and possible influence - over early drafts of environmental reports without giving the public the same rights

While the group says there's no direct evidence that the county's admitted policy of confidential correspondence with developers has watered down the environmental protections on any one project, that's also half the point: because the public is excluded from the process, they say it's difficult or impossible to tell.

It could become a big issue in South County, which holds a large portion of the county's unincorporated land and a significant number of high-profile proposals that will undergo such review, ranging from the relocation of the San Martin waste transfer station to the subdivision of the 8,000-plus acre Castro Valley Ranch west of Gilroy.

And if the fledgling campaign to change the policy is successful, its impact could be even greater, since the practice is apparently common across many cities as well.

"We're not alleging there's any turnover of power or anything nefarious going on, but it's bad policy to let one side - the side with a financial interest - influence the (reports) without letting in the sunlight for other members of the public who are interested," said Brian Schmidt; he is a lawyer with the Palo Alto-based Committee For Green Foothills, the group that's taken up the issue.

County officials maintain it's common and reasonable practice for local governments to work with developers to ensure the reports -- often prepared for controversial projects -- are accurate before they go out for public review.

Showing those early drafts to the public would create a bureaucratic nightmare, they say. And they stress that under the county's system it is government planners - and not developers - who make the decisions about what the environmental reports contain.

"We don't hide information about (environmental) impacts," said Lizanne Reynolds, a land-use lawyer with the County Counsel's office. "We don't shove things under the rug."

California environmental law requires that governments determine what impacts projects will have on traffic, noise, endangered species and a host of other factors, and agree to measures to offset them. The reports are circulated for public comment before the project is approved and can influence what those measures will be.

The problem with the county's policy, Schmidt said, is that by looking at working drafts of those reports in secret, developers can theoretically disagree with the severity of the impacts -- and argue they should be downplayed. And they can have much longer than the 30 to 45 days the public has in a typical EIR comment period to make their case.

And since the public doesn't see where the county or its consultants started from, they can't tell how things changed.

"The draft report says 'Here are the problems,' but the developer will have a chance to beat them down," Schmidt said. "There's no one standing on the side of the environment.

"Our line is not that it's wrong to share these documents with developers, it's that it's wrong to share them with them and no one else."

Schmidt said the issue came to his attention when he learned that the county was sharing an internal "working" draft of environmental impact reports on a proposed Stanford University expansion plan with college officials. When Schmidt -- who himself attended Stanford -- asked to see those documents, he said county officials refused.

Schmidt believes that's a violation of the California Public Records Act and other laws that say the government cannot unveil previously private documents and be selective about it. After filing a request under the act, Schmidt said the county eventually released some emails about the project -- but not the working drafts themselves, which county officials said they had destroyed in a routine effort to keep files clean.

"That magnifies the problem," Schmidt said. "They're doing secret and undisclosed discussions with developers over documents they then destroy. It's really hard to trace that path."

Defenders of the county's policy say it's reasonable to run draft reports by developers to ensure the facts about the project are correct and to avoid making erroneous assumptions about how developers are willing to offset impacts, when those strategies may not be feasible because of excess cost or technical difficulty.

For example, an environmental consultant may recommend moving historic buildings on the Stanford campus or building around them, Reynolds said, without realizing the difficulty or problems associated with that.

But releasing early drafts to the public is an invitation for bureaucratic nightmares, such as unnecessary controversy over errors and further time and expense retooling and distributing multiple reports.

"We don't want those documents to be in the public record because if the consultant finds an erroneous (environmental) significance and it's wrong, it's confusing and will lead to all kinds of claims that the analysis is faulty," Reynolds said.

And if a developer argues that impacts aren't as significant as the county's consultant believes, she stressed planners make the call. The county contracts with environmental firms to assemble environmental reports -- rather than allowing developers to do so - and acts as the liaison between them.

"Sometimes there's a dispute and we'll listen to (a developer's) concerns, but ultimately we make the decision and our approach is going to be conservative," Reynolds said. "If it's arguably significant, we'll include it.

"There's certainly no negotiations about whether we call a project's impact significant."

Schmidt's group is lobbying county supervisors to change the policy. It has not threatened a legal challenge, but is not counting one out, either.

After checking with county attorneys, District 1 County Supervisor Don Gage said there's nothing irregular about the policy.

He likened the county's process to the one the county goes through when subjected to an audit, when he said auditors release a pre-publication draft of their findings to the county to review factual accuracy before going public.

"It's not giving us an advantage," he said. "They don't come to us and negotiate with us - it's making sure information is factual."

His sometime opponent on land-use issues in unincorporated San Martin, Sylvia Hamilton, showed interest, however. The San Martin Neighborhood Alliance has pushed relentlessly to be involved in discussions about possible expansion at South County airport from the beginning, rather than waiting for consultants to draft chapters of the airport's new 20-year plan.

"We definitely want to be involved throughout the entire process, not just after they've written their report," Hamilton said. "We want to be involved parties, not just reactionary parties."

The city of Gilroy will also run initial information about environmental impacts by developers, and planning manager Bill Faus agreed it's common practice. But he said the idea is to allow developers to voluntarily reduce environmental impacts on their own.

For example, Hecker Pass landowners dramatically retooled their development plan for that sensitive area after planners noted there would be dramatic impacts to agriculture. Landowners ended up clustering homes together more tightly to keep the remaining farmland in large swaths that are more commercially viable.

"The intent is not to do something behind closed doors," Faus said. "The intent is to give developers a heads-up and recognize there may be something that's not acceptable."

But Faus also said he would release working draft information to a member of the public who pressed him.

"You can't conditionally open a door for review," he said. "Once you open the door, you can't say no."

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