December 4, 2009

Planting the plants

By Planting the plants

Author: Timothy Sandefur

On a note similar to Paul Beard’s post yesterday, check out the decision of the California Court of Appeal in Schellinger Bros. v. City of Sebastopol. It’s an example of the abuse of endangered species protections—the kind of abuse that probably goes on a lot more than people realize:

At issue here is the attempt of…Schellinger Brothers (Schellinger) to develop half of a site of approximately 20 acres in an area known as Laguna Vista within the limits of defendant City of Sebastopol (City)…. Originally, in January 2001, Schellinger submitted an application to construct a project with 182 units of single-residence housing along with a neighborhood commercial center of 16,300 square feet. The City began preparation of an EIR for the project….

(Footnote 4): During this period, there were several extraneous developments that deserve brief mention….

The second development partakes of the bizarre. As Schellinger states it in its opening brief: “In April 2005, while review of the Recirculated Draft EIR was still ongoing, project opponents entered the…property and claimed that they had found Sebastopol Meadowfoam, an endangered plant species. The State Department of Fish and Game launched an investigation and conducted site visits in April and May of 2005. The investigation concluded that the Meadowfoam had been transplanted artificially, which triggered a criminal investigation. The Department then advised the City that the illegal transportation of non-native Meadowfoam on to the site ‘should not affect the environmental review process.’” The City, while not accepting that it may have been “opponents” of the project that were responsible for this “illegal transportation,” does not disagree with the essentials of the narrative provided by Schellinger. Again, there is no conclusion to the criminal investigation, which was still on-going when this litigation commenced. There is nothing in the record which suggests that this investigation in any way impeded or had any substantive impact on the administrative proceedings. Earlier, in September 2004, the possibility of an endangered species of bird on the site was raised before the Planning Commission, which was advised that the birds might return to the site for future nesting. There was also a question-subsequently answered in the negative-about whether a species of salamander inhabited the site.

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