Government as prosecutor versus government as defendant

As an attorney, I have to do Continuing Legal Education to keep my Bar membership, so I've been listening to audio CDs about environmental trial advocacy education. They consist mostly of dialog between attorneys who are government prosecutors for environmental crimes and attorneys who represent environmental crime defendants.

What struck me as in interesting was the main prosecuting attorney's advice to opposing counsel to be cooperative, not to use a scorched-earth legal strategy, to admit fault where fault occurred and to work to fix the problem. He argued that defendants get much better results than fighting with everything they've got.

This struck me because my experience is that the government doesn't follow its own advice when it's the defendant. I've been involved in lawsuits against the government as an attorney and as a client staff member here at CGF. While there are exceptions, the usual government response has been to fight the legal battle and let the court force them to take a decision rather than reach a compromise settlement.

Maybe it's unsurprising that the government doesn't follow its own advice. But then the lecturer who was an attorney representing defendants spoke, and she agreed with the prosecutor, telling her fellow attorneys that they're much better off striking a deal than they are fighting.

Maybe that just reflects relative power positions - the government doesn't need to compromise when mere citizen groups sue it, but corporations do need to compromise when the government sues it. But then, the government prosecutor brought up the scenario of citizen groups suing corporations, and again advised defense attorneys to compromise with citizen groups.

So, all the advice seems to say that when the government has a bad case, it should compromise. So far I've seen little sign that they take their own advice, a result that's bad for the environment and just costs taxpayer money. Let's hope that changes.

-Brian

A congratulations post - to Lennie Roberts, Hewlett and Packard families, and even the Homebuilders Association

I'll just gather a few congratulations together:

First to CGF's own Lennie Roberts for winning the Conservationist of the Year Award from the John Muir Association. CGF's write-up is here:

Congratulations to long-time Committee for Green Foothills San Mateo Advocate Lennie Roberts, who will be honored on January 20 by the John Muir Association as its 30^th Annual Conservationist of the Year. The John Muir Conservation Awards are given annually to recognize those whose work continues John Muir's legacy of environmental preservation. Corrina Marshall, Acting Executive Director of CGF, writes that Lennie's efforts as CGF’s San Mateo County Advocate have "led to the development of sound, proactive land use policies, won countless battles to preserve precious coastal resources, led several historic countywide environmental initiatives despite fierce opposition, and taught countless citizens how to be effective advocates for their local environments."

Lennie will be honored along with Bank of America, the GreenInfo Network, and the Environmental Studies Academy for their significant contributions to environmental preservation efforts. The John Muir Conservation Awards will be presented at a dinner to be held on Sunday, January 20, 2008 at the Campbell Theatre in Martinez, CA. To learn more about the John Muir Association and the John Muir Conservation Awards, visit them online at www.johnmuirassociation.org. To learn more about Lennie's work with the CGF visit www.greenfoothills.org/projects.

Next, congratulations to the Hewlett and Packard families for donating the development rights to a massive tract of ranchland they own between Grant County Park and Henry Coe State Park in east Santa Clara County, a huge step toward protecting the Mount Hamilton Range ecosystem.

And finally, congratulations are due to an organization that we've often tussled with. The Home Builders Association of Northern California has too often supported sprawl development in the past, but this time they've announced their support for green building standards for residential buildings to reduce energy usage. While requiring green building standards is commonplace for commercial buildings, making them mandatory for residential building is still a new idea, and our local home builders are the first in the nation to support it. Congratulations! (Now, fighting sprawl is an even better way to reduce energy usage...)

-Brian

CGF recommends a "No" vote on BAREC referendum in the City of Santa Clara

A referendum will be held on February 5th in the City of Santa Clara over the 17-acre BAREC property on 90 North Winchester Road, bordering San Jose. This is a historic agricultural research and University of California agricultural extension project, and one of the small number of surviving parts of prime farmland in North Santa Clara County. Admittedly, the property is situated well for high-density, smart growth project, if an appropriate one were to be proposed there.

The land is currently zoned for its historical agricultural use, with a General Plan overlay designation of moderate-density residential development, should the land ever get developed. Santa Clara has supported a proposal by the State of California and land developers to decrease the residential density expected for the property, and get rid of the historic agriculture without mitigating for its loss.

The Committee for Green Foothills supports moving towards a balance between jobs and housing to avoid sprawl and long distance commuting, and we oppose the loss of agricultural land where such loss occurs without mitigation. The proposed development would destroy one of the last parts of our region's agricultural and open space heritage while also reducing the amount of residential development that would otherwise occur if the property were to be developed. For these two reasons, CGF opposes this project as currently designed and supports a "No" vote on Measures A and B in the City of Santa Clara on Febuary 5th.

Better alternatives exist. Santa Clara could save the entire parcel for its open space and historic agricultural value, working together the state and with neighboring, parks-deficient San Jose to make both Santa Clara and San Jose more attractive and livable cities that promote smart growth. Or some amount of the parcel could be developed at the higher density that originally had been designated, and any loss of agricultural value mitigated through on-site programs and through other mitigations either in Santa Clara or nearby.

More information is available at SaveBAREC.

-Brian

Brian to chair Environmental Advisory Committee

Just publishing a note here that I've been elected the chair of the Environmental Advisory Committee for the Santa Clara Valley Water District. I've been vice-chair for the last two years.

A little more work, but it's an important committee in terms of emphasizing the environmental restoration that the District needs to do.

-Brian

CGF letter to the Coyote Valley Task Force

(The letter below was delivered to the Coyote Valley Task Force yesterday. -Brian)

January 14, 2008

CVSP Task Force

Re: Updates to Coyote Valley process

Dear CVSP Task Force Members;

I regret that I will not be able to attend today’s meeting, and would like to make the following points:

1. The Committee for Green Foothills supports the Sierra Club’s call to bring the Coyote Valley process to a close, at the very least temporarily closing the process until the General Plan review is complete, for all the reasons stated by the Sierra Club.

2. I attended the Nov. 29^th TAC meeting but was not listed as a Committee member in the minutes. If I’ve been demoted, I wasn’t aware of it.

3. The City Staff said at the TAC that the Draft Fiscal Analysis revision is being postponed. It is not clear whether the revision will respond to the extensive comments that we at CGF submitted to the first draft. We request clarification as to whether there will be a response to those comments, especially the assertion that the analysis relied on unrealistic assumptions regarding the housing market and household income.

4. In addition to our original comments, the revised fiscal analysis should address the changes in the housing market that has occurred in the last two years, particularly the slowed increase in prices and reduced turnover in sales, both of which should have profound fiscal implications to the revised analysis.

5. If the planned fiscal analysis revision is not already planning to address our previous comments and the new economic conditions, we humbly request that the Task Force vote on whether it should. We note that some Task Force members had previously requested a response to these comments.

6. The City will undoubtedly be glad to know that Committee for Green Foothills has won special funding so that we can do an in-depth review of the revised Fiscal Analysis when it is made available, a review that will go beyond my own limited expertise. I assume we can rely on the cooperation of the City and its consultants for requests to see the data and methodology used in the analysis.
Please contact us if you have any questions.

Sincerely,

Brian A. Schmidt

Legislative Advocate, Santa Clara County