Mark Olbert
I recently attended the San Carlos Planning Commission meeting where the environmental impact report process for a 68 townhouse development on the old Black Mountain Water Company site was launched. After the EIR process is complete, the commission will review the project proposal itself, and decide whether to approve it.
In listening to comments by residents I realized there are some misunderstandings about how the process works and, more importantly, why it works the way it does.
I think the biggest source of confusion stems from the belief that, in a democracy, the community ought to be able to decide whether it wants any given development project, and in what form. The reality is different, and for a very important reason: to preserve liberty.
Communities do get to set rules governing what can be built where within their boundaries. While those rules must abide by state and federal laws, there is quite a bit of flexibility at the local level.
But once the rules are set, and until they are changed, they are binding upon the community. Project approvals are not transactional. Communities don’t get to decide, on a case by case basis, which projects they want.
Instead, if a proposed project complies with the rules, it can and must be approved, although conditions may be attached. It’s what’s called a “development by right.” Failure to do so exposes the community to being sued, a suit it would almost certainly lose, and then not only have to pay damages and court costs but end up with the project being built anyway.
This sounds, and is, rather undemocratic.
But that’s because our system of government is not a pure democracy. It is a representative constitutional democracy, and those other two words substantially modify how it operates. In this case, the constitutional aspect protects members of the community from arbitrary acts by the majority, however well intentioned. We can require you to prove you’re compliant with community rules — that’s what the project review process is for — but, once that’s established, you’re good to go.
That principle was adopted because it’s the best way found yet to preserve as much individual liberty as we can. But, like anything, it involves trade-offs that people may not like. One of those is that it’s extremely difficult for a “by right” project to be blocked by retroactively changing the rules.
There’s a similar situation involving EIRs. Most people see the EIR process as a way, potentially, to block a project that can be shown to have environmental impacts.
But while that can occur, the law is actually focused on identifying environmental impacts and getting them addressed. That’s why EIR studies almost always end up talking about mitigations: What can be done to reduce or eliminate negative environmental impacts?
Having negative impacts is almost inevitable, but it’s not, in and of itself, grounds for stopping a project. Instead, the project sponsor must address the significant (“material”) ones identified by an objective review of the project’s impacts. If they cannot find a cost-effective way to do so they may choose to abandon the project. But that’s relatively uncommon, particularly when dealing with something in short supply and great demand, like housing on the Peninsula.
None of this is intended to dissuade people from engaging City Hall in discussions about specific projects. For one thing, that helps ensure a proposal complies with our rules, and that’s important.
But my sense is at least some San Carlans want more than that. Focusing on what’s coming next, rather than what’s currently up for approval, might be a more effective approach.
For example, San Carlos will likely face, in the next few years, a significant amount of new commercial development. Deciding how we want to govern that will make this a pivotal moment in our history. Getting, and staying, engaged in that discussion will better shape the future we pass on to those who come after us.
Mark Olbert is a member of the San Carlos City Council. The opinions and perspectives expressed here are his own, and not necessarily those of the city of San Carlos or its City Council. If you’re interested in more on this subject you might enjoy his recent State of the City address, available online at the San Carlos Chamber of Commerce website.
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(7) comments
I would appreciate a follow-up column from Mr. Olbert that addresses General Plan amendments and zoning changes and why they are good for the residents. It is apparent that in a number of situations city councils establish rules for land use only to revise them when a deep pocketed developer shows up and wants to build something that is not permitted. This often seems to be the case with commercial development that brings more jobs in communities that already lack adequate housing. A good example of this is playing out in Redwood City with the outfit that bought the former Malibu Grand Prix site and wants changes that will allow the addition of thousands of jobs.
Mark - are you listening?
Let me summarize the most probable reason for these amendments, changes, and exceptions of the zoning rules: development brings the city revenue in the form of taxes and fees. With extra revenue we can give city employees higher salaries and bonuses, and invest modestly in our parks and infrastructure. This is not necessary a bad thing, but we must ask at what cost. While we wait for explanations, reports, and meetings, our communities will be displaced and our neighborhoods essentially demolished for larger or denser housing.... The peninsula is not a sea of suburban subdivisions and strip malls. We need development that makes sense.
Thank you Mark for clearly stating that you are preserving liberty! The constitutionally protected freedom for developers to do whatever they want as long as they follow the zoning rules, and pay fees if they don't like a rule and need an exception. The important freedom to exploit every loophole. Why even have people work in the city? Let's get rid of the planning board. I believe an algorithm can be devised to see if a project satisfies a set of rules. If it does, send
a tweet that's it's approved..... Fellow residents please support our change.org petition, Rethink Black Mountain: https://www.change.org/p/san-carlos-rethink-black-mountain..... Mark Olbert is pro-liberty, but we are pro-community!
Hi Steve,
The situations aren't the same, because, under law, businesses do not have a right to open in a community without permission, which is granted only after their application to operate is complete and found to be compliant with community rules.
Turner began investing in their proposed site before their application was complete (all the local business owners with whom I spoke about this were astounded they spent money before getting permission to operate). Consequently, San Carlos was within its rights under law to impose a moratorium on the opening of gun stores while it reviewed its policies regarding such, and then to change them, which we recently did.
A similar situation could occur if, say, San Carlos were to impose a moratorium on commercial developments while it reviewed its land use policies and zoning regulations. Developers who bought property in anticipation of relying on the current rules -- but who did not have complete plans on file with the city -- wouldn't like that, and might even threaten to sue, or actually sue. But, based on what I know, it'd be very hard for them to win because it's well-established that communities have a right to regulate how the land within their borders is used.
- Mark
I appreciate the attention that we live in a representative democracy. The people I vote for or don't vote for, I just hope they act in the greater best interest. I'm not wanting ABC from them. I want them to just do what they think right and not cow-tow to the largest voice in the room.
Thank you Mark for your thoughtful article. San Carlos is certainly facing a pivotal moment as a number of significant development projects are expected in the coming years. Mark provides a good overview of that and more detail on how our process works in his 2019 State of the City address available at https://youtu.be/zv6iPJOQXnY
Sounds like a reasonable process, but the process was not followed in the case of Turner Outdoorsman - rules were changed in the middle of the process. The Council used the excuse "we need more time to study the situation" but that effectively blocked the store from ever opening. Seems to me Turner should select more friendly locations for their stores and San Carlos should be willing pay to Turner and the owner of the store site for any losses they incurred during that flawed process. If the process is flawed once what prevents it from being flawed again in the future.
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