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Chapter II - The Writ of Mandate
The Writ of Mandate—Tool for Reversing Development Approvals
State law gives elected city councils and boards of supervisors the power or “discretion” to approve developments. That doesn’t mean, though, that they can do whatever they feel like doing. They must exercise their discretion lawfully.
This means, first, they must follow the procedures required by any applicable law. For example, if the law says they must hold a public hearing before voting to approve a development, they must do so. If the law says they must prepare an environmental impact report (EIR), they must do so. Second, they must make findings, usually in writing, that explain and support their decision. For example, “This board finds that the Avarice Ranch Project will create jobs and provide needed housing in the area.” Third, the findings must be supported by substantial evidence in the record. The record normally consists of the documents and testimony before the decision makers at the time they vote. Just saying the Avarice Ranch will create jobs, for example, is not enough. The record must contain substantial evidence that it actually will.
If the decision makers violate any of these three requirements, they abuse their discretion, and you can get a writ of mandate overturning or setting aside their decision. A writ of mandate is a court order commanding them to set aside their decision to approve the development. To get one, you must show that the decision makers failed to follow the procedures required by law, failed to support their decision with findings, or failed to support their findings with substantial evidence in the record.
You can read the law providing for writs of mandate in the Code of Civil Procedure (CCP). The laws passed by the California legislature are contained in 29 codes, like the Penal Code, the Water Code, and the Labor Code. The Code of Civil Procedure contains the laws about how to sue in civil (as opposed to criminal) courts. All of these codes are divided into numbered sections, and Code of Civil Procedure section 1094.5 tells about abuse of discretion and the writ of mandate.
Whether you file a lawsuit in pro per (on your own behalf) or retain a lawyer, it’s essential that you start to build your case before the development gets approved. If you don’t, you will almost certainly be thrown out of court for not exhausting administrative remedies.
So before charging into battle, you will need to know a few things about the system of land use approval and about the laws that supposedly regulate it. Then you can put forth the required participation, futile though it may be in the short run, so that you have standing to file a lawsuit later on.
1. The deck is stacked against you
You’ve probably found that the local system is set up to make it difficult to influence or challenge development decisions.
Public hearings are held in the daytime, during normal working hours. Notices of these hearings are encoded in an alphabet soup of planning and legal jargon—GPA 91-678, ZC 91-87, TTM 14489—and are buried in the back pages of newspapers sometimes unavailable in the very community where a development is proposed. Reports and legal notices are written in technical jargon, or “planningese.” And the people who somehow manage to get to public hearings frequently face intolerance or outright contempt from the officials who run these hearings.
Also, access to county supervisors or city council members—wide open to developers—is limited or impossible for the public. And at the state level, your legislator in the assembly or senate is probably working a good percentage, if not all, of his or her time advancing the developers’ agenda: toll roads, development agreements, elimination of school fees on new construction, repealing or weakening environmental protection laws, promoting new taxes to benefit developers, and restricting your ability to challenge a development in court.
For that reason, you should read this book carefully. If you simply show up at a city council or board of supervisors’ hearing, expecting that your concerns will be heard and respected, you are probably in for a shock. The developers saw you coming years ago. They designed the system of land use approval, and maintain control of it. Unless you can pose a credible threat of litigation and, if necessary, follow through on it, you might as well spare yourself wasted time and frustration, and just stay home.
On the positive side, citizens have sued local government and won. It can be done. While it’s true that developers often have unlimited funds with which to lob attorneys at you, it doesn’t follow that the party with the biggest lawyer always wins. If the law has clearly been violated, as it often is, you have a chance of winning.
This author, for example, successfully sued the developer controlled County of Orange for zoning two corners of an intersection for commercial development, when the County’s own general plan allowed only one commercial zoning. While the developers spent tens or hundreds of thousands in attorney fees against the author’s $108 filing fee plus duplicating costs, it availed them nothing, because the rezoning was simply against the law. As well-trained and highly-paid as their attorneys were, they were unable to prove that two equals one. Even though the developers have a lot more money than you do, it costs them a lot more money -- at least $50,000 for the smallest law suit -- to defend against what you, a volunteer, can do for much less. Their attorneys don’t work for free.
If you’ve participated in the planning of a development project from the start, you probably have a more detailed knowledge of the facts of the case than the developer’s hired help, brought in late in the game. You should try to use that knowledge to advantage. Also, you probably care more about the outcome of the case. After all, it’s your home, your community, and your future they’re making a Monopoly board of.
2. Know the players
It helps to know something about the people you’re dealing with, where they’re coming from, how they think, and what they want.
The developers are the prime movers on the land use scene. They start things moving by acquiring open land and then pushing local governments to change the land’s designation—called “entitling” it—so they can build their projects or sell it at a profit to somebody else. Their sole interest is money, but not just any money—quick money at a high rate of return (up to 30% or more per year). If the rate isn’t high enough or quick enough, they’ll go elsewhere. Developers usually operate using other’s money, not their own.
Despite appearances, land use entitlement is usually a “top down” process. The developer starts at the top, approaching the city council or board of supervisors to try and sell the project. Campaign contributions, or legalized bribes, are given in exchange for a commitment that the project will be approved.
What these local politicians want is to stay in office, or move up a notch in the next election. Generally, they do this by not making any waves. Even so, they are often perfectly willing to turn their backs on entire room fulls of irate constituents and vote for an unpopular development project. Why is this? Because, unless the project is so big that it affects all the voters in the next election, they know they can stay in office by using developer campaign bucks to discourage any serious opposition or buy more votes than they lost approving the project. Even so, politicians generally don’t like bad publicity, either. Before they vote on the project, you should find out how much each voter has taken in campaign contributions from the developer, and talk about it at the public hearing.
Politicians are afraid to offend the Building Industry Association (BIA), which helps development friendly locals get to Sacramento where they use them to gut environmental protection laws. (There’s an important civics lesson they don’t teach in the schools.)
You’ll likely see the BIA make an appearance in your project, if only to whip the local politicos into line. What they want is to keep building, come hell or high water. Cancer is apparently their ideal model of growth. You’ll hear them at public hearings bemoaning the “housing shortage,” and citing statistics that millions, if not billions of new houses are urgently needed. If you want to see one of them come unglued sometime, ask them to tell you just how much development will be enough for your city, county, or state. Ask them when, in their view, the building should stop.
You may have thought that your city or county planning staff diligently and dispassionately reviews the developer’s plans to see if they comply with all the policies, laws, and regulations. But they don’t. Before these foot soldiers even get their hands on the plans, their boss, usually called the “community development director,” or the “planning director” has met with the politicians and gotten his marching orders, to get the project through the system. His job is to package the private, for-profit project as a great public benefit, a gift to society from the generous developer. He then passes the orders along to his foot soldiers, who are told to develop a rationale for approval, a sales pitch. And his reward, if he succeeds and the project is not overturned in court, is a possible promotion up the bureaucratic ladder from the grateful politicians, gifts and perks from the developers, and a ticket through the revolving door into private sector employment as a lobbyist for the developers.
As for the planners, they want to keep their jobs, which means not bucking the party line, swallowing their personal scruples as necessary, and handling people like you, usually in the “good cop” role. They often collect minor perks and graft from the developers.
And finally, you might in the exercise of your civic duty run into the “Junior Fire Marshall,” usually a neighbor the developers recruit as a shill and a spy to infiltrate and undermine your efforts. This person will show up at every public hearing and claim to represent the community in support of the project. And the developers are very good at identifying and co-opting these types. They stroke their egos by inviting them to private meetings and inviting their “input” on issues they’ve actually already settled. If parkland has to be dedicated, for example, they will allow the Junior Fire Marshall to claim that he or she “pulled it off” for the community. They may also promise them perks, like a new house in the project if it gets approved. You should “follow the money” whenever you see one of these Benedict Arnolds crop up.
3. Educate yourself about the law
The most important law regulating development in California is the California Environmental Quality Act, or CEQA (pronounced see-kwuh). This law is contained in the state’s Public Resources Code (PRC), starting at section (§) 21000. You need to get a copy of this important law. It’s your main legal weapon against the earthsacking huns and their abominable developments. Educate yourself about it, and about law in general.
4. You will need these reference books
First, get a copy of Legal Research: How to Find & Understand the Law, by Steven Elias and Susan Levinkind, a self-help law book from Nolo Press. It is also available in public libraries and some bookstores. This very concise book should take only about one evening to read. It explains in plain language how the court system is organized, how to look up laws, and what types of laws exist. (CEQA, for example, is statutory law, enacted by the state legislature.) Legal Research also gives examples of court cases (case law), contains a glossary of legal terms, and supplies other legal information.
Next, find your local law library and get a library card. This usually involves paying a deposit. But even without a card you can go there to look up laws and find the information you need.
REFERENCES 2 AND 3
Get copies of CEQA and the CEQA Guidelines from the law library, or download them, and read them -- two more evenings worth. Many of the details implementing CEQA are left to the CEQA Guidelines, which are part of the California Administrative Code (Title 14, starting at section 15000—written as §15000.) These are administrative regulations having the force of law. They are put out by the state’s Office of Planning and Research, as authorized by CEQA, and adopted by the Secretary of the Resources Agency. You can access both CEQA and the CEQA Guidelines online.
Fourth, and an absolute must, get a copy of Guide to CEQA, published by Solano Press Books. This excellent book explains CEQA and important relevant case law, and is a powerful weapon for the lay person. It also contains a copy of CEQA and the CEQA Guidelines. You will also need copies of:
The general plan for your city or county. Under state law, all development approvals must be consistent with the general plan. You can get a copy, which contains several parts or elements (land use, transportation, recreation, open space, noise, growth management, etc.), from your county or city planning department and some public libraries.
The zoning code for your city or county. Again, development approvals must be consistent with the ordinances there. Get a copy from your city or county planning department.
The state Government Code, starting at §65000 (called the state Planning and Zoning Law) contains the laws dealing with general plans. You download the Planning and Zoning Law, or it in a booklet that also contains other laws relating to planning called Planning, Zoning, and Development Laws. Request or download it from the Governor’s Office of Planning and Research.
If a project is not consistent with the general plan, you’ve got grounds for a lawsuit. Bear in mind, though, that you’ll have to nail them on something fairly black and white, such as approving housing in an area designated as open space in the general plan. Most general plans are full of general platitudinous goals designed to look good to the state but never applied in practice, e.g., “to provide a pleasant and healthful environment to all citizens of the city.” Unfortunately, the courts have allowed cities to do the exact opposite of the pious behaviors promised in their general plans.
REFERENCES 8 AND 9
If you have the money and the time to read it, get Guide to California Planning by William Fulton from Solano Press Books. This clearly written book explains the big picture of land use laws and approvals in the state, how the system is supposed to work, what are the roles and powers of each of the various players, and how it all came to be. After reading this, you will know more about this subject than most of your local government officials combined.
Another valuable book, Curtin’s California Land Use and Planning Law, is available from the same publisher and covers the same material from a legal point of view.
REFERENCES 10 AND 11
When you get ready to write your lawsuit, these books give you the nuts and bolts procedures and forms you will need. They’re available from CEB Books, which supplies law books to lawyers. They are quite expensive, so you may want to find and read them in the law library instead of buying them.
The first one, California Administrative Mandamus, explains in detail how to file a lawsuit to get a writ of mandate and has the answers to most of the procedural questions not covered in this book.
The second, Practice Under the California Environmental Quality Act, is focused on the details of CEQA lawsuits.
5. What CEQA can (and can’t) do
In a nutshell: CEQA requires that a project’s significant environmental impacts be revealed, and reduced to the extent feasible. This is the bottom line, and you should keep it in mind. CEQA applies only to development projects where the decision makers have the authority to say no (“discretionary” actions). Almost all decisions made at the level of a planning commission, city council, or board of supervisors (general plan amendments, specific plans, rezonings, and subdivisions) are discretionary actions subject to CEQA.
CEQA CAN REVEAL A PROJECT’S IMPACTS
CEQA does not flatly prohibit environmental devastation. It does require that if a development project might have a “significant effect” on the environment, the city or county must prepare and circulate for review an environmental impact report (EIR) for that project before approving it.
The EIR must meet certain requirements laid down in CEQA and the CEQA Guidelines:
You have a right to comment on the draft EIR, and the city or county has to respond in writing to your environmental comments. The comments and responses become part of the final EIR which the ultimate decision makers who approve the project must consider, and which becomes evidence in court, should you later sue.
The EIR forces the city or county to reveal publicly how much and in what ways the project will damage the environment. If the EIR is not adequate according to CEQA, the project cannot legally be approved.
CEQA CAN FORCE REDUCTION OF IMPACTS
As mentioned above, if the EIR identifies a significant impact of a proposed project, the project cannot be approved until all feasible “mitigation measures” or “project alternatives” which could “eliminate or substantially lessen” the identified significant impacts have been adopted. To show that this has been done, the decision makers must make a written finding for each of the project’s significant environmental impacts. Each finding must state that either they’ve (1) eliminated the significant impact or (2) reduced it as much as is feasible, through mitigation or by choosing an alternative project.
In this context, “infeasible” doesn’t just mean less profitable for the developer. The courts have held that there must be a factual showing that the mitigation measures or project alternatives would create a hardship sufficiently severe to render it impossible to continue with the project.
CEQA’S WEAKEST LINK: THE SUBSTANTIAL EVIDENCE TEST
If all the decision makers’ findings aren’t backed by “substantial evidence” contained in the record, approval constitutes an “abuse of discretion” and must be set aside by the reviewing court.
Unfortunately, “substantial evidence” is very different from “the weight of the evidence,” the standard used commonly in other types of legal cases. Substantial evidence means merely, “...enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made is to be determined by examining the entire record.” (CEQA Guidelines, §15384.)
As far as you’re concerned, the substantial-evidence test is CEQA’s weakest section. Using this test, weaseling decision makers regularly get away with approving environmentally disastrous developments that can’t be fought successfully in court.
If even one piece of “substantial evidence” supports the city our county’s finding, the court must disregard the nine other pieces of evidence which do not support it. An example may clarify this strange concept: if a city council finds that a development they’re approving will benefit the public because it will open up a new equestrian trail, the courts will not overturn that finding, even if the development will clog the roads, pollute the air, and expose school children to radioactivity. Keep this bizarre reality in mind as you build your case.
DID THEY PROVE IT, OR JUST SAY IT?
These days, most cities and counties have computers that spew out standard CEQA findings, e.g., “The Board finds that all feasible mitigation measures identified in the EIR have been incorporated into the project as approved.” So, it’s not likely they’ll completely fail to make a required finding. But you can sue them for abuse of discretion if these rote findings are not supported by evidence in the record. For example, if they find that an environmentally superior alternative project was “financially infeasible,” see if they cited actual data in the EIR or other parts of the record to support that finding. Did they set forth the costs and profits of the various alternatives and define the criterion for “feasibility?” If not, they’ve made an unsupported “armchair” finding which won’t fly under CEQA, and you should challenge that finding in court.
Finally, if after adoption of all feasible mitigation measures or project alternatives, significant environmental impacts would still occur, the decision makers have to make a written finding explaining what specific overriding considerations justified, in their opinion, allowing these impacts to occur.
It’s tough to sue them on this requirement (unless they fail to make the finding at all), since the principal intent is simply to have them reveal their values to the voters, and explain how they supposedly “balanced” the liabilities of the project against its benefits. The opposition will answer your attack on this finding by arguing that, if you don’t like what the city council did, you shouldn’t have elected them. However, you should attack their finding if it contains outright fallacies, such as a statement that the development will provide something it actually won’t provide. Claims about increased tax base are often unsupported. Many developments cost local government more in required services than the taxes they generate. Look for actual data in the record.
6. Develop a “legal mind”
Finally, a word of warning: laws change, as do the ways courts interpret those laws. Be sure you’re using the most up-to-date version of the statutes, and case law. Legal Research will show you how to do this. Also, check with the author to be sure you’re using the most current revision of this book.
Remember, the laws were made to protect you and your environment. They’re not the exclusive domain of lawyers. Don’t be afraid to read them. Legal Research will show you how to read and understand the state’s constitution, statutes, and case law.
A key point for the lay person can be summarized in one short sentence: Every word counts. You can’t read the law as you would a novel or magazine, skimming along to get the drift or main idea. The legislature carefully chose each word. Many of the words, such as “environment,” “impact,” “feasible,” and “project,” are explicitly defined within the law itself. The meanings of other terms, such as “significant impact,” have been fleshed out after excruciating legal battles going as high as the supreme court. The dictionary definition or your intuitive concept of what a word means may not apply.
When you finally get to court, the judge will not overturn the development approval unless you can show a clear, definite, and specific violation of some law. Unfortunately, it’s not sufficient to show that a development will destroy the environment and vitiate the common good.
The best way to develop the necessary “legal mind” is to read as many published appellate cases (case law) as you possibly can, particularly those that are relevant to the project you’re fighting. Start with the important cases summarized at the back of the Guide to CEQA text. They’re available at the law library or online, and will give you clear examples of how legal experts (appellate and supreme court justices) have applied the law to specific cases of development. You should read the entire case and make sure you understand the detailed reasoning behind each legal conclusion reached. Start from the language of the statute or constitution itself and trace the court’s reasoning through case law and logical principles to the conclusions it reached on the facts of that case.
Later, when you write your own legal brief (written argument), you’ll need to apply the same kind of reasoning. Like the author, you’ll probably be amazed to see the similarities between your case and the ones you read about, and how greed is thrashing the environment throughout the state.
7. Should you hire an attorney?
You’re probably reading this book because you need to file a law suit to stop a development but you can’t afford to hire an attorney. OK. This book can help you do that. If you can hire an attorney, there’s one very important reason to do so: CCP 1021.5, known as the California “private attorney general act.” If you win your law suit, and the court finds that it enforced an important public right, as environmental lawsuits usually do, you, who have acted as a “private attorney general” may be able to collect your attorney fees off the opposition. However, you can only collect attorney fees if you hired an attorney—you can’t collect for your own time representing yourself.
Now, before you say “I don’t care about the money, I just want to stop this #$%&* development,” consider this prospect from the point of view of the developer (who usually has made a deal with the city or county to pay all the legal bills in exchange for getting the project approved). If you go in acting as your own attorney and you ultimately win, approval of the project is set aside, but the developer has to pay your court costs, only, which are limited to filing fees and the record. For under $1,000, he’ll be off the hook and ready to take another crack at approval. He’ll change a few words in the EIR, fix the paperwork, maybe make a few more campaign contributions, and go right back to the city or county for another vote. Why not? The cost of doing so is small compared to the profits he stands to make off the development. (Remember what makes this player tick.)
If, on the other hand, you bring in an attorney and ask for attorney fees in your lawsuit, you drastically raise the stakes for the developer—if you win the suit, not only will that delay the project, but it will double the developer’s legal costs, which could easily go into 6 figures. While still a relatively small amount compared to the potential spoils, it may cause a cash flow problem. Remember that developers usually operate with other people’s money. This means that, even from the beginning, the developer will take more seriously your lawsuit and the possibility of settling it. If it doesn’t settle and you win, he will think twice about rushing back for a re-approval.
Before hiring an attorney, though, think long and hard about the costs. Will the continuing legal bills force you to spend all your time fundraising instead of helping with case? If you end up losing, will your supporters be willing to keep paying the outstanding legal bills?
In the author’s view, the best all-around arrangement if you can manage it is for you, the expert on the details of the project and on environmental law, to work with a sympathetic attorney willing to help you pro bono (for free) or at a greatly reduced fee. Ideally, you want one who knows CEQA and land use planning law, and who is willing to work cooperatively with you and other members of your group.
Important: If you have an attorney, when you file the law suit, you name your organization as a petitioner (plaintiff), represented by the attorney. You should also name yourself or another individual who has participated in the proceedings, as an individual petitioner: “Friends of the Environment and Don Quixote v. City (or County) of Grafton, Amalgamated Earthsacking, Inc., Real Party in Interest.” If for some reason (such as running out of money) you lose your attorney and can’t find another in time, the individual plaintiff may be able to carry on with the suit in pro per (on their own behalf). Remember that a non-lawyer can’t...