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The Allegations in Rise's Complaint letter are Meritless


CEA Foundation attorneys analyzed Rise Gold's 164-page complaint letter claiming unfair treatment and lack of due process in reaction to the May 11 Planning Commission's unanimous vote to reject the mine project and the EIR.


"The allegations in Rise’s letter are meritless. At the outset, Rise fundamentally misunderstands the legislative nature of the Planning Commission’s action," wrote Ellison Folk, Attorney for Shute, Mihaly & Weinberger LLP.


This following press release and analysis were also published in The Union newspaper.

 

For Immediate Release: June 28.2023


Contact:


Opposition Refutes Unfair Treatment Claims of Rise Gold


June 28, 2023 – Grass Valley, CA – Community Environmental Advocates Foundation (CEA Foundation) reports that it sent a letter to the Nevada County Supervisors containing a legal analysis of a complaint letter submitted to Nevada County by Rise Grass Valley. Rise Grass Valley is a subsidiary of the Canadian-headquartered junior mining company Rise Gold, and is applying to reopen the long-shuttered Idaho-Maryland Mine.


At a public hearing on May 12, the Nevada County Planning Commission voted unanimously to recommend a NO vote on the Mine project and Environmental Impact Report (EIR).


In response, Rise Gold submitted a 164-page complaint letter to the Nevada County Board of Supervisors on June 1 containing numerous assertions of unfair treatment, bias, and violations of due process in the processing of the Mine application. A story about the complaint was published in The Union, and in various other media including online investment sites.


“Rise Gold is apparently attempting to create a false narrative of conspiracy and bias in order to sway public opinion and discredit the unanimous vote by the Planning Commission recommending that the project be denied,” stated Ralph Silberstein, President, CEA Foundation.


Nevada County staff and the Board of Supervisors generally respond to such complaints under the guidance of County Counsel and in this case are likely informed as to the validity of the Rise objections, but CEA Foundation submitted their legal analysis of the complaint to the County in order to shed more light on the subject. A full copy of the CEA Foundation legal analysis is included below. The original Rise complaint document is here. (PDF)


According to CEA Foundation’s legal analysis, the Rise complaint letter makes allegations of violations in due process and alludes to the requirements for the Planning Commission to act in a quasi-adjudicatory (court-like) capacity. However, the Commission was acting in a quasi-legislative capacity when it made its recommendations on the Project, not quasi-adjudicatory. This is because they were making a recommendation on a rezoning issue. It is well established law that rezoning decisions are categorically considered legislative acts.


The analysis goes on to say that the hearing process was entirely consistent with the legal principles that actually govern these types of legislative decisions. Courts have long recognized that local decision makers have “not only a right but an obligation to discuss issues of vital concern” with their constituents and to “state [their] views on matters of public importance.” (City of Fairfield v. Superior Court 1975). In addition, under the County’s Land Use and Development Code, the Commission was tasked with determining whether the rezone would be “consistent with and further[]” the County’s General Plan policies and “will not be detrimental to the public interest, health, safety, convenience, or welfare of the County.” The Planning Commission satisfied these obligations, heard from the public, scrutinized the documents provided to them, shared their personal views and experiences, and made a unanimous decision.


CEA’s analysis points out that even if one assumed that the court-like standards did apply in some way, the Commission satisfied those requirements. The Planning Commission has “an obligation to discuss issues of vital concern with [their] constituents.” (Fairfield) And association with members of community groups opposed to a project, or even membership in such groups, does not establish bias. Nor does having a point of view about a question of law or policy a disqualification by itself.


Moreover, the Planning Commission was merely issuing a recommendation. Nothing in Rise Gold’s complaint letter threatens the validity of the Board’s own upcoming decision on the Project. Additional grievances were stated by Rise, including violations of the Brown Act, but no evidence was provided.


In summary, CEA Foundation’s analysis found that the allegations made by Rise Gold appear to be unfounded, and that what was evident in the hearing was active engagement on the part of the community and an informed and attentive Planning Commissioner fulfilling its responsibilities under the law. The Board of Supervisors will make the final decision on the project during the public hearings, currently scheduled for Oct 2 and Oct 3.


Silberstein was appreciative of the legal analysis, adding “the processing of the Rise application, the active engagement of the public, and the conduct of the Planning Commission were a good example of how democracy is supposed to work. We encourage the Board of Supervisors to continue with the normal processing of this project, to not be intimidated with threats or accusations of foul play, and to deny the project.


For more information about the potential re-opening of the Idaho-Maryland Mine visit: www.MineWatchNC.org

***

About CEA Foundation: Community Environmental Advocates Foundation (CEA Foundation) performs research, education, and advocacy to promote responsible land use and environmental protection policies in Nevada County. www.cea-nc.org/ CEA Foundation is the sponsor of MineWatch, a campaign that brings together a coalition of nonprofit organizations, residents, and businesses opposed to the mine. www.MineWatchNC.org.

 
 

Following is the full text of the legal analysis letter.

June 27, 2023 Via Electronic Mail Only Board of Supervisors Nevada County 950 Maidu Avenue Nevada City, CA 95959 bdofsupervisors@nevadacountyca.gov

Re: Response to Rise Grass Valley’s Letter to Board Dear Board Members:

On behalf of the Community Environmental Advocates Foundation, we write to address the letter that Rise Grass Valley, Inc. (“Rise”) submitted to the Nevada County Board of supervisors (“Board”) on June 1, 2023. The letter alleges that Rise was deprived of due process at the County Planning Commission’s hearing on the Idaho-Maryland Mine Project (“Project”).1 During this hearing, the Planning Commission unanimously voted to recommend that the Board deny the Project and decline to certify its Environmental Impact Report (“EIR”).

The allegations in Rise’s letter are meritless. At the outset, Rise fundamentally misunderstands the legislative nature of the Planning Commission’s action. This misunderstanding renders virtually all of Rise’s many complaints irrelevant. Regardless, the Planning Commission’s consideration of the Project comported both with due process principles and with the Commission’s obligations to consider public input on a matter of great local importance. Rise might have preferred for the Planning Commission to ignore the community’s views or reach a different decision. But this does not make the Commission’s process or recommendations illegitimate. In any event, Rise’s allegations have no bearing on the Board’s own future decision on the Project. Rise’s entire letteris premised on an assumption that procedural due process requirements applied to the Planning Commission’s decision. That assumption is wrong. The due process principles that Rise cites apply only when a local decision-making body is acting in a quasi-adjudicatory capacity. Save Civita because Sudberry Won’t v. City of San Diego (2021) 72 Cal.App.5th 957, 983–84. They do not apply to quasi-legislative acts.2 Id.; id. at 994 & n.45.

The Planning Commission was acting in a quasi-legislative capacity when it made its recommendations on the Project. The Project cannot be developed unless the County rezones the Project site. And the Planning Commission expressly recommended to deny the rezoningapplication.3 The California Supreme Court made clear over forty years ago that such rezoning decisions are categorically legislative. See Arnel Dev. Co. v. City of Costa Mesa (1980) 28 Cal.3d 511, 524 (in bank) (“[T]he current California rule that rezoning is a legislative act is well settled by precedent and comports with both federal and state constitutional requirements.”); see also id. at 514, 521–25. As a result, the Planning Commission’s decision was not subject to due process principles.4 See id. at 521; Save Civita, 72 Cal.App.5th at 994 & n.45. In overlooking these basic rules, Rise’s letter wastes a dozen pages arguing that the Planning Commission violated requirements that did not apply in the first place.

The hearing process was entirely consistent with the legal principles that actually govern these types of legislative decisions. Courts have long recognized that local decisionmakers have “not only a right but an obligation to discuss issues of vital concern” with their constituents and to “state[their] views on matters of public importance.” City of Fairfield v. Superior Court (1975) 14 Cal.3d 768, 780 (in bank). These obligations are especially acute when the decision involves the location and construction of a major project that could have significant economic and environmental impacts on the region. See id.; see also Cohan, 30 Cal.App.4th at 559 (“[O]pposition of neighbors to a development project is a legitimate factor in legislative decision making.”).

Moreover, under the County’s Land Use and Development Code, the Planning Commission was specifically tasked with determining whether the rezone would be “consistent with and further[]” the County’s General Plan policies and “will not be detrimental to the public interest, health, safety, convenience, or welfare of the County.” Nevada Cty. Land Use & Dev. Code (“LUDC”)§ L-II 5.9(G)(1), (2); see also Staff Report 78, 85–86, 116–19. And, under the California Environmental Quality Act (“CEQA”), the County was required to solicit, consider, and respond to input from the public and other agencies regarding the Project’s environmental impacts. See CEQA Guidelines §§ 15086– 15088. The Planning Commission satisfied these obligations. Its members heard and respected the public’s views regarding a sprawling, complicated Project that would impact the community for decades. They carefully scrutinized the analyses provided by their own staff, Rise and its consultants, and other agencies. And they disclosed their personal views on these matters, which were informed both by the information presented during the hearing process and by their own relevant experiences. After considering that wide range of input, they reached a unanimous decision that the Project would not advance the County’s policy interests. This was not a biased adjudication. It was a legislative process working as intended.

Additionally, even assuming that due process principles applied in some way to the Planning Commission’s action, the Commission satisfied those requirements. While Rise’s letter sets forth a laundry list of purported transgressions, a few core legal principles show that the Commission was not biased against Rise:

  • First, because none of the Planning Commissioners had a “financial interest in the outcome of the” vote, they are all “presumed to be impartial.” Hauser v. Ventura Cty. Bd. of Supervisors (2018) 20 Cal.App.5th 572, 580. Rise’s scattered allegations cannot overcome that starting presumption.

  • Second, because the Planning Commissioners have “an obligation to discuss issues of vital concern with [their] constituents,” Rise could not have been deprived of a fair hearing simply because the Commissioners were contacted by or met with members of the public. City of Fairfield, 14 Cal.3d at 780; see also Petrovich, 48 Cal.App.5th at 974; Hauser, 20 Cal.App.5th at 580. It is puzzling that Rise would suggest otherwise, given that Rise itself has met with County officials multiple times and apparently intends to do so in the future.

  • Third, although Rise faults Planning Commissioners merely for associating with members of community groups opposed to the Project, a decisionmaker can be an active member of such a group without being impermissibly biased against a project. See Petrovich, 48 Cal.App.5th at 971, 974 (holding council member’s active membership in neighborhood association opposed to project “did not establish bias” in and of itself).

  • Fourth, even in a quasi-adjudicatory context, decisionmakers retain some ability to express their views on the merits of pending projects. See City of Fairfield, 14 Cal.3d at 780; Petrovich, 48 Cal.App.5th at 974; Cohan, 30 Cal.App.4th at 559 (“[A] councilperson has a right to state views or concerns on matters of community policy without having his voted impeached.”); Breakzone, 81 Cal.App.4th at 1234 n.23 (“[A] point of view about a question of law or policy is not a disqualification by itself, and . . . a predisposition about legislative facts that helps answer a question of law or policy is not by itself a disqualification.”). The Planning Commissioners’ remarks were consistent with these guidelines.

In short, the Planning Commission’s action plainly was not adjudicatory. Yet Rise nonetheless received all the due process to which it would have been entitled if it were.


Finally, putting all else aside, nothing in Rise’s letter threatens the validity of the Board’s own upcoming decision on the Project. Consistent with the legislative nature of its actions, the Planning Commission merely issued recommendations to the Board. It did not—and could not—definitively deny the rezone, decline to certify the EIR, or address any of the many other approvals the Project requires. See LUDC § L-II 5.9(E);Govt. Code § 65855.Those final decisions rest within the independent judgment of the Board and will be made only after another public hearing process. See LUDC § L-II 5.9(F); Govt. Code §§ 65856,65857; CEQA Guidelines § 15025(b). During that process, Rise is free to present any complaints that the Planning Commission got the facts wrong, considered improper evidence, or weighed the public policy considerations incorrectly—as Rise already has, and surely will continue to do. Once the Board has considered those allegations and all the relevant information, it can and should reach the same well-reasoned conclusions as the Planning Commission. But those decisions will be the Board’s alone. _________________

1 The letter includes a single cursory allegation that County officials also violated the Brown Act. Rise never explains what Brown Act violations it believes the County has committed and nothing described in the letter implicates the Act.


2 Consistent with this rule, each of the land use cases that Rise’s letter references involved a quasi-adjudicatory decision. See Petrovich Dev. Co., LLC v. City of Sacramento (2020) 48 Cal.App.5th 963, 972; Woody’s Group,Inc. v. City of Newport Beach (2015) 233

Cal.App.4th 1012, 1021; Nasha LLC v. City of Los Angeles (2004) 125 Cal.App.4th 470,

482; Breakzone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1223–24; Clark

v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1170–71; Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 554–55, 559.


3 Specifically, the Planning Commission unanimously voted “to approve Recommendation A [in the Planning Commission Staff Report], with the exception of not certifying the Environmental Impact Report. ”May 11 Special Meeting Rec. 7:37:20. “Recommendation A” includes the recommendation “that the Board of Supervisors deny the Rezone(RZN12- 0002) to rezone the parcels located at the Brunswick Industrial Site from Light-Industrial with Site Performance Combining District (M1-SP) to Light Industrial with Mineral Extraction Combining District (M1-ME).” Staff Report 5. Recommendation A involved taking no action on the necessary Development Agreement (MIS22-0019), since the denial of the rezone would be sufficient to deny the Project outright. See id. But any express decision on the Development Agreement would also be a legislative action. See S.F. Tomorrow, 229 Cal.App.4th at 526, 528; Govt. Code § 65867.5(a), (b).


4 The same is true of the Planning Commission’s recommendation to decline to certify the EIR. Because the “underlying action that the [County] was analyzing in the []EIR” was quasi-legislative, the Planning Commission’s decision regarding the EIR was itself quasi- legislative, and thus not subject to procedural due process requirements. See Save Civita, 72 Cal.App.5th at 992–94.


Very truly yours,


SHUTE, MIHALY & WEINBERGER LLP


Ellison Folk


cc:

Julie Patterson Hunter, Clerk of the Board

Katharine Elliott, County Counsel

Laurie Oberholtzer, CEA Foundation

Ralph Silberstein, CEA Foundation


1660106.2



 

Rise Gold's Complaint Letter

Rise-Grass-Valley-Inc.-Letter-to-Board-of-Supervisors-June-1
.pdf
Download PDF • 11.42MB

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