Emeryville resident John Nady and his attorney, Frederick Schrag, appeared before the supervisors Tuesday to ask for the opportunity to appeal the decision, which the Lake County Planning Commission handed down in May.
Planning staff had interpreted county code to suggest that the commission's decision to require Nady to do a focused environmental impact report (EIR) to look at archaeological and environmental resources couldn't be appealed to the Board of Supervisors.
Senior Planner Emily Minton told the board that Nady applied for a grading permit to build two residences and related improvements on Rattlesnake Island, a 57-acre island off of Clearlake Oaks.
The commission recommended a mitigated negative declaration be prepared. After reviewing the reports and hearing more than four and a half hours of public testimony, the commission determined the focused EIR was needed at a May meeting. Nady then appealed, Minton said.
“It is our opinion that local codes do not allow the decision of the planning commission to require an EIR to be appealed,” said Minton.
County Counsel Anita Grant said planning staff conferred with members of her office on the issue. She said the sole issue for the board to consider Tuesday was whether or not the EIR is a final decision or can be appealed to the board.
The discussion also revealed vague or conflicting parts of county code that led to the confusion over the language.
Supervisor Rob Brown said he didn't want to see the board give up the right to hear appeals, but worried that the board may not be able to hear the matter due to the rules.
Schrag argued that it was within the board's jurisdiction to hear the appeal. If boar members found it wasn't, the board wouldn't be able to correct the commission's errors, he suggested.
It also would leave Nady with the only option but to sue, said Schrag. “That would not be in the interests of the county or Mr. Nady.”
Schrag attempted to go through a history of the project but Board Chair Anthony Farrington cut him off. “I want to hear your legal arguments,” Farrington said.
When Schrag reiterated that Nady would have to sue if the board didn't hear his appeal, Brown challenged him.
Suing the county, Brown said, could mean a lot of different things. “If you think you're going to go and sue for a million dollars or whatever, we can't stop you from that.”
Schrag said that a lawsuit would be an unnecessary delay. “Mr. Nady has already been delayed six years on this project,” he said. “It's a waste of time and resources.”
Brown replied that it wasn't in the county's best interests for the five board members to succumb to a lawsuit threat.
Schrag said he wasn't threatening them, only telling them it would force Nady to a decision. Supervisor Denise Rushing pointed out that Nady had another option – he could do the focused EIR.
Farrington said if Schrag was going to threaten litigation, it would trigger another process and result in the board going into closed session.
Like Farrington, Brown said he wanted to hear Schrag's arguments. “Move on without bringing the lawyer stuff in here,” Brown said, otherwise the conversation would end.
Community Development Director Rick Coel explained during the meeting that the planning commission didn't deny Nady's grading permit request, but wanted the focused EIR completed before deciding on the grading permit.
Different sections of the zoning ordinance conflicted on the issue of which bodies make the final California Environmental Quality Act (CEQA) decision. While the language said the commission's decision was final, Schrag compared that to a superior court's ruling being final, but still subject to appeal to a higher court.
“It's up to you to decide what's final in this context,” he said.
During the discussion Brown noted that private property rights are important. “Staff has always allowed for and encouraged the appeal process,” he said, adding that he believed there needed to be room for flexibility.
Coel told the board that this was probably the third time in 20 years that the commission had asked for a focused EIR. He said such a request had killed two previous projects.
Rushing said she was struggling with the matter, because she felt the planning commission was asking for the EIR information to make a decision.
But ultimately the matter hinged less on the information requested and more on whether the board could, and would, hear the appeal itself.
After nearly an hour and a half of discussion, the board voted 4-1, with Rushing voting no, to hear the appeal. County planning staff must now prepare a report to bring back at a later date as part of the appeal hearing.
E-mail Elizabeth Larson at
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