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Quote of the Day - The statement attributed to Mr. Reiss has been mischaracterized as a threat, ... It was not. The statement was a figure of speech used in a voice mail message in a context of a longstanding business dispute over the merits of a deal to have the stock exchange go public. - Cyrus Vance
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How To Lose A CEQA Appeal, Even When You Win

There's A Difference Between Spin And Mischaracterization

And so goes the appellate court opinion, which not too cryptically notes, "Petitioners do not have to believe the County's evidence, but as appellants they have a duty to confront it.  As Developer and the City point out, petitioners make many such misstatements and omissions."

Wow. In other words, once you abuse our trust, you lose our trust, which is one interpretation of this California Environmental Quality Act appeal.

Sometimes what you may in your wildest dreams think or believe is not what you should write down on paper, especially if you're going to submit that paper in the form of a brief to a court of appeal.   

Here's what the Plaintiffs claim:  "they imply the Project will raze prime farmland and "obliterate" "irreplaceable wetlands."

The appellate court takes issue with that claim:  "Although some land is farmed and some has vernal pools, all has been in the general plan's 'Urban Growth Area' since 1993, only 'isolated' pieces of farmland are considered 'prime' and those are too small 'to be farmed on a practical basis,' and wetlands loss will be mitigated by a preserve and offsite restoration."

Not all that's in your imagination needs to make it to your argument.

The appellate court isn't finished, however.  "As another example, petitioners claim the Project will 'obliterate' Morrison and Laguna Creeks."

While that may be imagined, the court's not buying it:  "Such hyperbole is unsupported by the record, which shows these 'are normally dry creek beds' and that the Project as approved preserves Laguna Creek by creating an open space corridor, and that Morrison Creek crosses 'a small portion' of a corner of the Project land which will be subject to a site-specific design process subject [...] to approval by the Department of Fish and Game."

Needless to say, the resulting opinion doesn't  look too favorably on Plaintiff's arguments, despite sending it back to the trial court for further proceedings, as ordered by the California Supreme Court.  There's a way to get back to the trial court with your arguments intact, and there's another way.

Mischaracterize the facts, and you're likely to lose your legal arguments, too.  MIPTC expresses no opinion on how this case will ultimately turn out other than to observe that there are likely better ways to reach a resolution.  A victory at the Supreme Court level doesn't guarantee a victory at the trial court level, apparently.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, July 17, 2007 at 23:24 Comments Closed (0) |
 
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