As the Monday, 4/9, 5:PM hillside project hearing nears, alternate universes of facts continue to collide. On the applicant’s Facebook forum, moderated by an unknown alias, accusations of “twisting the facts” and bias are peppered with the moderator’s own transparent bias and factual license, while also deleting perfectly fine comments that simply disagree.
To state this another way, the hillside applicants persist mightily with their general narrative that all of those against them are unfair, biased NIMBYs, while transparently ignoring their own biases, and ignoring the name-calling and inflammatory troubles they themselves have brought to the table.
Bottom line here, this hillside issue is underlain by animosities made up from past events, by many actors for many reasons, but no matter what degree of circumlocution by whatever parties, the ultimate basis for the decision rests on substantive content that exists independently of the emotional heat.
Unbiased content, unbiased decisions?
Of course, opposing sides are not going to all of a sudden start believing the other guys’ facts and content. Why not? Because the assembling of social facts is a matter of interests, faith, and belief before it is a matter of objective inquiry. If everyone could agree on the facts, there would be no disputes. We wouldn’t need government! Interested actors habitually line up partial sets of facts and skew things so their interests come out on top. This is bias and partisanship 101, par for the course. No sense among different actors in the pot calling the kettle black.
Can a huge outpouring of biased public input affect a decision makers vote? Yes it can. This can bleed into personal-cost ethical questions, vote one way and do the perceived right thing, but pay a large cost personally. Or, vote another way, sidestep the perceived right thing, and don’t pay a huge personal cost.
The hillside issue could be framed ethically as a right vs. right situation. Everyone says what they think right means, and what their basis is, and then the decision makers make their call with a clear line of reasoning to trace why.
In all cases, the public, the appellants, applicants, staff and decision making body will all be looking to know the clearly stated reasons why the decision was made.
Any reconciliation of these hillside issues, and others that underlie Sonoma’s main tensions will require a level of self-reflection we have not really seen any of the core protagonists get to. This is why an appeal to facts, reason, and of being “reasonable” usually does not work. Being truly reasonable means being willing to call one’s own beliefs and facts into question. And since deeply held beliefs drive facts, not many will abandon their own ship, or be able to see off of it.
The hillside decision is not about getting to a kumbaya, common ground/ common sense place, but rather on what narrow basis a land use decision will be made.
Neutral, objective staff report
It is city staff’s job to lay out the objective, neutral decision making ground for the council, and then the council will weigh and account for that body of determinative material, listen to the public’s arguments, and then council members, with their own research and values, make their decision. The public will be acutely tuned into what reasons, references, and factual basis each councilmember gives to support the reasoning for their vote on this matter.
As far as I can tell, any appeal to “property rights” is not part of the source material in the staff report that the council will be using to make this land use decision. Property rights do not exempt people from building and land use codes that are designed to, among other things, protect other citizens. There are legitimate limits to property rights, and an amorphous appeal to them in the case of this hillside project, appears as a tangential argument to circumvent local regulations.
Originalists abandon ship
There is a touch of originalism versus living document dispute going on here with this hillside issue. In this metaphor, the Constitution, or primary reference document, is the city’s General Plan, Development Code and Hillside Ordinance. Ironically, conservative values folks like the applicant’s cohort, tend to be originalists, hewing to what they see as original intent. And here in town we have a statement by the framers of the Hillside Ordinance as to exactly what the intent was: 5000 square foot pad limit per 10-acre parcel. The applicants want city entitles to play by the rules, by the “rule of law”, yet here, when originalist rules threaten to be interpreted with original intent, ironically, the applicant calls bias. These hillside boys are fine to bend the rules when it suits their own interests. But they are human like the rest of us, and there is not much mileage in the pot calling the kettle black. We all bend the rules when it suits us.
Council is free to countermand written city policy?
Council members have a determinative vote and are free to base their decisions on whatever. There is no rule they have to be objective. They got elected. But are they free to vote against local regulations in place and then leave the city open to losing a lawsuit on that basis? The Pruitt EPA can’t roll back tailpipe emissions with no substantial basis just because they don’t like “regulations”, and the city can’t reject its own rules on the basis that someone just wants a 17,000 square foot house when 5000 is the limit. 6000 maybe, 17,000, no.
The local government deliberative body process is not supposed to be based on transparent advocacy of prior personal values. This is the public’s business. Yet we know that ideology plays a big part of why decisions go one way or another. This is politics after all. At least there has to be a context given that deliberation centers on substantial arguments and reasons.
How are precedents and policy arrived at?
If land use rules are to be changed, this process should happen through Planning Commission channels, or General Plan updates, rather than through a contested project vote. For example, if the council votes to countermand the Hillside Ordnance, and allow 17,000 square foot homes on hillsides, does that then automatically make a precedent that changes the Development Code? Or does the Development Code decide what the policy in place is? Is it solid legal ground that prior land use rule breaking and prior exceptions establishes a precedent? If so, then this kind of policy precedent setting process undermines all local attempts to regulate cannabis.
A few things impressed me in the last hillside hearing, one was when Planning Director Goodison said that deviation from the lot pad guideline requires “substantial reasons to justify non-compliance.” This was a critical take home point. It’s not enough to just want an exception, you have to have substantial reasons why, and these substantial reasons have to conform to the Hillside Ordinance guidelines. In my mind, substantial reasons, or any demonstration of necessity, were not produced other than wanting huge houses. You could want an oil refinery too. Or you could say that John jumped off the Brooklyn Bridge, so I should be able to too. These are not substantial reasons.
A substantive decision on this hillside matter can be made. This substantive decision has a solid, traceable basis in Hillside Ordinance fact; this is objectively demonstrable; this is the controlling data and written ordinance that any judge in a court of law will agree upon. The city can win a lawsuit based on this correct interpretation of the Hillside Ordinance, that 5000 square feet means 5000 square feet, not a limitless 5000 square foot multiplication based on “property rights.”
Apply the code, move on
In a civilized society, governments place limits on individual extremes. Local governments everywhere have hillside ordinances to protect the common viewscape, from a tendency of wealthy actors to try and get to the top of the hill and make the public look at their garish mansions forever. Hillside ordinances protect the public from the excesses of individual hillside home building that tend to ruin a common sense of place. Common viewscape is a legitimate public good criterion. That the county appears to have few rules here is immaterial. It’s immaterial that the applicant(s) have acted intemperately and made enemies, and they might legitimately be seen to have it coming. That the applicant can hide a 17,000 square foot house is immaterial. Out of spite they might cut all the trees down as soon as they are entitled and simply pay the fine. They could afford it. That past city exceptions have been granted does not mean the rules don’t now apply. Sonoma has the right to regulate its own hillsides and other projects.
The hillside issue is about applying the substance of the Hillside Ordinance and not allowing extreme exceptions.
Count the votes
This hillside project is a land use issue that will be resolved by determinations based on consistency with city land use policy. This is the solid, substantive ground. As we saw at the last hillside project hearing, council members displayed varying degrees of consistency with facts based on the Hillside Ordinance. Should things stand as they were at the end of the last hearing, there is a clear two versus two split of votes, with Mayor Agrimonti as the swing, and she appeared to me to be leaning to uphold the appeal. It should be a great show, all the way to the final roll call vote.