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In Defense of the NIMBY

November 11, 2010, 9am PST | Keith Sugar
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Land use lawyer Keith Sugar makes the case that while NIMBYs are often acting on behalf of their own parochial interests, they serve a beneficial role as a valuable corrective to the land use planning process.

Tim Foley was on a mission. The amateur pilot and concerned citizen had struck it rich with a Silicon Valley start-up, had sold out for millions, and was now living a comfortable life in Santa Cruz on the proceeds of the sale. With his earnings he had purchased a nice house in the upper reaches of the Santa Cruz housing market in a sparsely developed part of town. He was living the life of Reilly, indulging his interest in the world of high tech and working to develop patents on new inventions to reprise his earlier days as Silicon Valley whiz kid. But then something happened to disturbed his care free life as entrepreneur.

Monarch butterflies.

The Monarch Grove in Santa Cruz, California. Image courtesy of Flickr user ldjaffe.

His house was located in Santa Cruz' upper west side. Favored by cooling fog in the morning an sunny temperate sky's in the afternoon, the house was perched below a eucalyptus grove that ran from his house, up hill to a riparian stream known as Arroyo Secco. The grove extended from Tim's house to the creek, and then up hill behind several other houses to the main part of the grove, which grew on both sides of the creek. Where the grove was at it broadest there was a picturesque jewish cemetery on the left side of the stream. On the right side of the stream there were three lots, one developed with a single level home outside the riparian corridor, and two undeveloped lots which were within the riparian corridor. All three lots were owned by a Mr. Bergen (not his real name).

While eucalyptus is an invasive non native plant that many environmentalists and home owners consider anathema, this groove of trees had something special going for it. Every year, monarch butterflies on their migration south to Mexico would overwinter in the grove, transforming the drab boughs of dull green into golden arms dripping with the weight of thousands of monarchs perched and gently moving their wings in the noonday sun to keep cool.

While Tim's home was several doors down from the undeveloped parcels owned by Mr. Bergen, he enjoyed the relatively undeveloped character of his neighborhood. He loved to walk in as close as he would dare to see the sight that, at nearby Natural Bridges State Park, draws thousands of butterfly aficionados every year.

It was during a time of year that the Monarchs were gone that Tim learned of something that he felt would upset the delicate balance he had achieved by living close to, but not in a Monarch butterfly refugee. He learned that the owner of the home and the two undeveloped parcels had submitted to the City an application for a minor lot subdivision for the construction of two homes, one on each vacant lot, right below the eaves of the trees that housed the Monarchs and in, what Foley believed was the riparian corridor adjoining the creek. But more to the point, the development of the two new houses would bring more noise and disruption to Tim's idyllic perch just outside the eucalyptus grove.

Tim dutifully attended planning commission meetings on the subject and voiced his concern that the proposed development was located in a riparian corridor, and that the City's general plan prohibited construction in a riparian corridor. He also argued that the project would bring light, noise and trampling by residents and their pets to the understory of the the Monarch laden eucalyptus trees.

His concerns were ultimately dismissed by the planning commission, who unanimously approved the minor lot subdivision. Foley appealed to the City Council, who again, dismissed the concerns Foley raised about the butterflies and the general plan inconsistency and approved the project.

So Tim, with the money he had earned as a silicon valley whiz kid, decided to hire a lawyer. If he could not win before the City, he would have his day in court, in an attempt to overturn what the city had done.

The case was litigated as a writ of mandate under California Code of Civil Procedure Section 1094.5 This code section allows member of the public to sue governmental entities for the purpose of compelling them to follow the law when they violate applicable regulations, ordinances and statutes through misfeasance or nonfeasance. The suit alleged that the City approved the subdivision in a riparian corridor in violation of the City's general plan.

But what was the real motive behind the lawsuit and Foley's opposition to the development? Did Foley seek to enjoin the Bergen development because it would harm the butterflies and the riparian environment? Or was the lawsuit based on nothing more than Foley's desire to keep development out of his figurative back yard? After all, he enjoyed the peace and quite of living next to an undeveloped riparian area. Who wouldn't want to protect that?

The reason it is illustrative to consider Foley's motives is because we want to know: is Foley a dedicated environmentalist, or merely that opportunistic and parochial minded steward of self interest: in other words, a NIMBY (Not In My Back Yard).

I believe that it doesn't, and shouldn't, matter.

The Detested NIMBY

Reviled by developers, community boosters, local planners and those with a strong sense of civic rectitude, NIMBY's have been derided as selfish neighbors who have managed to find housing in areas of scenic or cultural splendor and who now want to close development to anyone else who wants to enter the local market to enjoy the same natural and built amenities. "I've got mine. Now go away." is the ethos ascribed to the NIMBY, according to developers, property owners and planning officials who must deal with their parochial demands to stop development in its tracks. The NIMBY is viewed as insincere, only wanting to stop development once they have built their own homes. The target of indignation, accused of hypocrisy, the NIMBY at first glance seems little deserving of Mr. Bergen.

NIMBYs oppose projects for a number of reasons. They seek to maintain their views, and property values. They oppose projects that will result in more congestion on the roads that they use. The seek to stop projects which will result in crowding at local amenities. They stand in opposition to development that will change the character of their neighborhood. They want to maintain the status quo for all the benefits it confers upon them.

At its worst, NIMBY's oppose projects that bring in the proverbial "wrong element", a category that can include people of a certain race or economic class. But for the most part, NIMBYs object to any development within their neighborhoods, regardless of the owner/tenant. However parochial, (and potentially odious), the NIMBY's motivations, does the NIMBY deserve scorn for their attempts to stymie development that would encroach on their Shangri-La? For the most part, no.

California law contains several provisions which accord citizens the right to challenge the administrative decisions of local government, including those having to do with land use. CCP Section 1021.5 provides that:

Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons.

Known as the California Private Attorney General Statute, this section of the Code of Civil Procedure encourages public participation when local government goes off the rails and approves projects that are not in compliance with state and local planning and land use regulations, as well as the California Environmental Quality Act, ("CEQA") Further, Code of Civil Procedure Sections 1084 and 1094.5 confer upon the citizenry the standing to litigate the propriety and legality of local land use decisions. Where entitlements are granted in derogation of these important regulations, public citizens -- yes, NIMBYs -- can bring a law suit for judicial review of local land use decision making. Together, these statutes give NIMBYs a powerful set of tools to challenge land use decisions they believe violate local and state land use regulations. They represent a strong legislative imperative that private citizens keep watch on the administrative decisions of local and state actors, and affords a potent remedy of judicial review when these agencies stray beyond their jurisdiction.

It is an axiom that a law or regulation is only as strong as is the will to enforce it. Many local land use authorities, (primarily city councils and boards of supervisors) make land use decisions that circumvent, or are inconsistent with local and state land use regulations. All to often, these decisions are made in violation of general plan provisions, zoning ordinances, and CEQA. Human nature being what it is, decision makers who want to approve projects regardless of applicable statutes and ordinances simply do so, if, in their calculus, no one is likely to come forward to challenge their non compliance with these laws.

A Eucalyptus tree.
Image courtesy of Flickr user isolino.

But the Sierra Club can't be everywhere. Though the California is home a great many environmental organizations, they can't be relied on to enforce every general plan provision and zoning ordinance. That is where the NIMBY comes in. They live by or near proposed development. While often acting on narrow parochial interests, they scrutinize the administrative record for any daylight between applicable state regulations and local land use laws, on the one hand, and the project under consideration on the other. Admittedly, most NIMBYs don't really care about CEQA, or fealty to the local general plan and zoning ordinance. All they care about is stopping the project under consideration. They seize upon general plan and zoning ordinance violations only as a means to an end -- stopping the project.

However, rather than condemning NIMBY organizations for being disingenuous, (which they often are), they should be lauded for compelling state and local land use decision makers to follow the law in approving or disapproving development projects. Their role is akin to the idea of beneficial insects. Ants may be only interested in stripping a carcass clean for the nutrition it provides the colony. But the salutary effect is to prevent the spread of disease. So it is that NIMBYs, while acting to protect their own parochial interests, serve the salutary function of ensuring that important regulations on which the community's well-being is founded are observed and complied with in a local entity's land use decision making.

Eyes on the Stream?

Where no one else may be looking, the NIMBY is the only party keeping an eye on the store, and that vigilance benefits us all. Its role may therefore also be considered a bulwark in democratizing local land use decisions. The NIMBY, however narrow his or her interest, provides public input where there would otherwise be none. The NIMBY is the public, and whatever their motive, they are the community's voice when all others are silent or indifferent.

Thus, the NIMBY not only helps ensure that local and state land use laws are complied with, but they also, by default, secure the public imperative of transparency and open process. Of course, many NIMBYs don't really care about the important role they play in accountability and adherence to the law. What they are concerned with is how a projects affects them. But thanks to their involvement and vigilance, the public is protected from the shady deals and suspect dealing of local land use agencies.

So what if Tim Foley is only interested in maintaining the bucolic splendor of his little part of the world? In his lawsuit, Foley's attorney argued that the area to be developed was a riparian corridor, and that, under the City's general plan, development of the two proposed homes in the corridor was prohibited. Thus approval was a violation of the general plan. It wasn't a big project, so no one noticed, except Foley. Even though his concern was limited to what, if any, effect the development would have on his property, by forcing the City to adhere to its general plan, he helped maintain the integrity of the land use decision making process, and vindicated an important general plan provision which ultimately inured to the benefit of the monarch butterfly and its habitat.

This is not to confer public hero status on all NIMBYs. Some author lawsuits that are without merit, with the hope of scaring away potential developers. Others seek to kill projects which would create ethnic and economic diversity for people who otherwise might not be able to afford to live in the environs the NIMBY seeks to protect from development. Sometimes the undercurrent of "I got mine, screw you" is too strong to justify the NIMBY's objections. For example, Roberta Crowell Barbalace noted in her article "Environmental Justice and The NIMBY Principle", "race is the most significant factor in determining the location of hazardous waste facilities." Thus in some cases, NIMBYism can be a vehicle for what Benjiman Chavis, former Executive Director of the NAACP termed "environmental racism". I myself have turned down cases where wealthy homeowners in upscale neighborhoods wanted to stop affordable housing being built nearby. Such NIMBYism is, and should be, roundly condemned. But laws are in place which avoid these problems by requiring approval of residential projects that serve low income people.

But in my experience, most NIMBYs are just trying to protect their environment, and to ensure that local government plays by the rules the rest of us have to follow.

The Court in the Foley case ultimately held that the two housing units in the eucalyptus grove were in a riparian corridor, contrary to what city staff had concluded, and that such development violated general plan provisions prohibiting development in riparian zones. Foley was obviously the beneficiary of this decision. But the salient point here is that the entire city benefits when its elected representatives are held to a higher standard where they are expected to act in accord with the spirit and the letter of the laws that govern development and which affect the environment of our communities.

So cut the NIMBY some slack. At best they are guardians of the environment and proponents of open government and fair dealing. At worst they are a necessary evil keeping an eye on local government while the rest of us, untroubled, enjoy the environment they protect.

Keith Sugar is a land use and real property lawyer and a partner in the law office of Angel & Sugar. He represents homeowners, developers, environmental groups, and local agencies. In 1998, Keith was elected to the Santa Cruz City Council and served as Mayor of Santa Cruz in 1999-2000. Keith also teaches land use law at San Jose State University in the Schools' Masters of Urban Planning Program.

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