Monday, November 7, 2016

The Un-Saving of Coyote Hills

This is an article I wrote for an upcoming edition of The Fullerton Observer, my town's only independent newspaper.

If you are confused about what exactly has been the status of Coyote Hills since the 2012 Measure W vote, you are not alone. These past few years have been characterized by secrecy, confusion, frustration, and complex legal maneuvering, much of it outside public view. Here’s what’s been going on.

In 2012 (as many residents know, because they voted on it), the majority of the residents of Fullerton voted “No” on Measure W, which (we thought) terminated the 2011 Development Agreement between the City and Chevron/Pacific Coast Homes, thus “saving” Coyote Hills (one of the last large natural open spaces in North Orange County) from development. So far, so good. Following this vote, however, Chevron/Pacific Coast Homes renewed a lawsuit against the City of Fullerton, a lawsuit which still stands today, four years later, thus holding a kind of financial Sword of Damocles over the heads of City Council, whose message seems to be “This public referendum will not stand!”

Meanwhile, Chevron/Pacific Coast Homes (because of this lawsuit) has had special access to City Council in their Closed Session meetings (which happen before every Public City Council meeting, and are not open to the public). Because they are purportedly discussing the aforementioned lawsuit, “legal confidentiality” is the justification for the secrecy of these meetings. There were also, apparently, some talks with representatives of the Friends of Coyote Hills, but it appears that Chevron/Pacific Coast Homes has gotten the lion’s share of Council access, as one can easily ascertain by glancing at closed session Council Agendas over the past few years.

Then, in November of 2015, City Council unanimously approved something called a Vesting Tentative Tract Map (VTTM). “What is a VTTM?” you ask. Apparently, it’s Coyote Hills Development Agreement 2.0. This VTTM gives Chevron the right to do pretty much exactly what the voters told them they didn’t want: build over 700 houses and a shopping center on West Coyote Hills! This blatant affront the will of the people was “softened” with one new element: the option for the city to purchase some of the property, purportedly for preservation, within a one-year time-frame. This VTTM also comes with a special coat of armor—it is legally impervious to a public referendum!

I was in attendance at the November 2015 meeting, when Fullerton City council unanimously approved this VTTM. I stood in stunned disbelief as Jennifer Fitzgerald, Bruce Whitaker, Greg Sebourn, Jan Flory, and even Doug Chaffee (who has long supported the Friends of Coyote Hills) all voted for something that the majority of the public clearly did not want. So this is how democracy dies, I remember thinking-- with intentionally confusing legal maneuvering.

In response, the Friends of Coyote Hills (in conjunction with the Center for Biological Diversity and Friends of Harbors, Beaches, and Parks) sued the City of Fullerton, arguing that this new VTTM clearly violated and undermined the will of the people, as was expressed by the Measure W vote. I attended the October 28th hearing at the Santa Ana Civil courthouse, in which the honorable Judge William D. Claster of the Superior Court heard arguments on both sides of this case. I was extremely curious as to how the City of Fullerton and Chevron’s lawyers could possibly justify the VTTM. It was a surreal, Kafkaesque experience.

Prior to the hearing, Judge Claster issued a “tentative ruling” against the Friends of Coyote Hills, and in favor of the City of Fullerton/Chevron/Pacific Coast Homes. Thus, going into the hearing, the burden was clearly placed on the shoulders of the Friends of Coyote Hills’ lawyers to argue against the judge’s pre-hearing decision. I am no lawyer, but this whole situation seemed topsy-turvy. It seems that burden ought to have been placed on the City/Chevron, being the entity that subverted the will of the people, to make their case for the VTTM. It also seemed strange that the judge issued a ruling (albeit a tentative one) before the hearing. Going into the trial, the deck seemed stacked against the Friends of Coyote Hills, as it has been all along.

As I sat in court, listening to complex legal arguments that hinged on questions like, “What is the intended meaning of the word terminate?” I felt out of my depth and a little powerless. I knew things were not going well for the Friends, despite their articulate and capable lawyers’ best efforts, but I struggled to even understand the complexity of the legal arguments. I felt like I’d felt back in the November 2015 City Council meeting, trying desperately to wrap my mind around the VTTM concept and its validity. Over the course of that meeting, and this trial, it became clear that, as an ordinary citizen, I’m not really supposed to be part of this process. I suppose I (and we, the “we” who voted against the plain meaning of Measure W) are just naïve to think we can hold our own in this specialized, opaque world of government/corporate legal agreements. That city council meeting, and this court case had the consequence of making me feel powerless, pushed out of the public process by people (i.e. corporate lawyers) whose job it is to sometimes subvert or sidestep democracy.

After hearing the arguments, Judge Claster did not issue his ruling on the 28th, stating that he wanted to think about it over the weekend. Then, on Monday, he issued his decision AGAINST the Friends of Coyote Hills. The VTTM/Development Agreement stands; Coyote Hills has been legally “un-saved.” What possible logic could bring him to this decision? Again, I’m no lawyer (and thus basically excluded from these conversations), but here’s the argument as quoted from the written ruling:

“A dispute whether the Development Agreement was terminated presupposes the existence of a valid Development Agreement that can be terminated. After review of the parties’ supplemental briefing on this issue, the Court finds that the Development Agreement was not valid and/or did not legally exist in the first place such that could later be terminated. Given this finding, the Court concludes that the 2011 Development Approvals remained in effect following the referendum.”

Basically, Judge Claster is saying that the 2011 Development Agreement never went into effect, so therefore Measure W could not (and did not) terminate it. This means that, according to Judge Claster, the entire Measure W vote was meaningless. It means that the City of Fullerton put a ballot measure on the ballot that could have no legal consequence. It means that the arguments on both sides of measure W were over nothing. It means that Chevron/Pacific Coast Homes spent over 1.5 million dollars on a media campaign (the Yes on W campaign) that meant nothing.

In a broader sense, what Judge Claster’s decision means is that, should local communities attempt to organize to advance their interests against those of a large corporation, they will likely be thwarted, if not at the ballot box, then in private legal maneuverings. It means, ultimately, that our vote doesn’t count for much. It means that democracy in Fullerton can be legally undermined, if you’ve got the money.

Coyote Hills

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