CEQA "General Rule Exemption" Awareness Month in Merced

California Environmental Quality Act Guidelines
15061 Review for Exemption
15061 (b) 3:
The activity is convered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject ot CEQA.

On November 20, the Merced County Board of Supervisors received a great deal of pointed comment on the CEQA General Rule Exemption in connection with a parcel split of some 265 acres into five parcels of about 50 acres each on Bear Creek near Planada.

On October 24, the county Planning Commission had rejected the project, persuaded by the public and county counsel that the general rule exemption could not apply to this project and that it would need some level of environmental review because it would, in fact, have effects on the environment.

The applicants appealed the planning commission decision to the county Board of Supervisors. Below the counsel's comments to the planning commission is a letter written by attorney Marsha Burch to the board of supervisors that discusses the same issue: the legality of claiming a general rule exemption to CEQA.

The general rule exemption to CEQA has been popular in Merced County land-use decisions during the recent speculative real estate bubble. It has been so common, in fact, that members of the public were unable to get a count from the planning department of how many general rule exemptions it has granted in Merced County. One supervisor noted exphasized this point -- that the planning department doesn't even know how many exemptions it has granted.

Robert Gabriele, county deputy counsel, commented on the general rule exemption on a minor subdivision application in Gustine at the October 24 Planning Commission hearing:

...What impresses me, and I’ve only been with the county a little over two months, in this particular case there is what would be reasonably described as very reliable evidence because as the expression goes, a picture is worth a thousand words.

And typically, what I’ve seen during the course of these hearings, and I have noted that on average, there appears to be one minor subdivision that’s on the agenda (every hearing) but this is the first time I have seen what could be described without question as substantial evidence on the issue, in addition to just an aerial of the site in the type of pictorial that is presented so from a standpoint of the process; if I may, the speakers who have raised issues in opposition to this particular project -- I’m not expressing an opinion on the validity or invalidity from the standpoint of weighting of the evidence -- but this type of presentation is what the CEQA process -- the administrative process – envisions, and that is when there is a pro and a con to any of these issues since CEQA is essentially a process calculated to provide information so that the decision maker can make and appropriate and lawful decision. This is the type of presentation that I just want to make a comment from a legal perspective is very significant and is helpful to the process.

And I mean that from a standpoint of both anyone who is in favor because of what’s going on around the property, what has gone on before the presentation, the proposed use, the split, what the history is -- all of those are factors that go into the analytical mix so that staff can have the benefit of that information and then exercise their expertise in technical knowledge as to whether or not an exemption applies and whether it does or it doesn’t beyond that concerns to address issues that are raised and then they are presented before the hearing I think it always makes the process a little more easier and its more helpful to the staff.

Presentation of evidence, like this, at the time of the hearing, I think always present -- I mean it’s a benefit -- because you need the evidence, but it presents a practical problem because there has already been dispersion of substantial information and evidence up to a week before the hearing and so the Planning Commissioners have had an opportunity to digest that. This is all a first impression. So I would encourage anyone that has a position on any of these issues in particular since this is an issue that comes up more
than one time. The more, and the sooner, in terms of submittal -- the better and easier to facilitate the process and perhaps have a desired impact on the decision makers.

Later in the discussion of the minor subdivision in Gustine, Gabriele spoke again on the general rule exemption, aka the "common sense" exemption.

Before (the vote), [if] it would be acceptable to you, before the motion is made and before a vote, just so there is not lack of clarity as to what the legal standard is. First and foremost, the board is asked to determine whether or not what is called the common sense exemption applies.

Let me read the guide to CEQA and this is on page 166 (he proceeds to find the correct page), Page 166, the guide to CEQA, the most recent version. It provides the legal standard so when you do review the evidence and when you do act on whatever the motion is going to be you have the legal standard in mind.

In order for any decision, if the applicant were denied and he were to challenge that decision, that’s part of his position. If an application were granted and a challenger were to challenge that then, that’s part of what makes the decision of this body defensible. The seminal case in the area of the law is actually, in that area called Davidson Homes v The City of San Jose. And, in particular, what the court did state with respect to what the showing is required to support an exemption is this, quote: “the showing required of a party challenging an exemption under guidelines section 15061 subdivision (b) 3 is slight. "

Since the exemption requires the agency to be certain, that there is no possibly, meaning practical possibility -- in other words, just a reasonable mind thinking about it -- there no possibility that the project may cause significant environmental impacts.

If a legitimate question can be raised, based on evidence, this is not just hypothetical, theoretical, impractical and unrealistic, but, -- if legitimate questions based on evidence can be raised about whether the project might have a significant impact and there is any dispute about the possibility again, dispute, there are many times people can have unrational, unreasonable arguments and disagreements, we are talking about what a reasonable person, an adult of reasonable average intelligence would consider. A dispute about the possibility of such an impact; then, the agency cannot find with certainty that a project is exempt.

If a reasonable argument is made to suggest a possibility that a project will cause a significant environmental impact, then that must be taken into account in the evaluation process. Fundamentally, the board is inured with substantial legal discretion to evaluate evidence and exercise that discretion in a reasonable way.

So, no one can dictate to the board what to believe or not to believe in terms of the evidence; but you have the discretion to weigh evidence and make a determination as to whether or not there is substantial evidence or not. So, I hope that’s helpful in at least in terms of establishing or confirming the framework -- the legal framework within which to make these types decisions.

Planning Commission Chairman Steve Sloan said that Gabriele's comments were helpful helpful, and then he voted alone in favor of the application. The other four commissioners doubted the project was exempt from CEQA.

On November 20, the county Board of Supervisors considered another application for subdivision in which the issue of the general rule exemption had been debated at the Planning Commission, with the result that the commission rejected the application and the applicants appealed to the board of supervisors. The supervisors received the following letter from attorney Marsha Burch, writing on behalf of members of the Merced public.

Date: November 19, 2007
Re: Proposed Minor Subdivision MS07-022 (Geneva Development Co./Bear
Creek Ranch Partnership) at Planada, Merced County, California

Dear members of the Board of Supervisors:

This office, in conjunction with the Law Office of Donald B. Mooney, represents the San Joaquin Raptor Rescue Center and Protect Our Water, groups with an interest in the above-referenced proposed minor subdivision (“Proposal”). We submit the following comments on the Proposal.

This proposal comes to you by way of an appeal of the August 22, 2007, Planning Commission determination that the Proposal is not exempt from review under the California Environmental Quality Act (“CEQA”). The applicants argued to the Planning Commission that the Proposal was exempt from CEQA under CEQA Guidelines Section 15061(b)(3), known as the “common sense” exemption. This exemption applies where “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” (CEQA Guidelines § 15061(b)(3).)

The Planning Commission rejected the argument that the Proposal is exempt from CEQA, and so should the Board of Supervisors. The Proposal will result in physical changes to the environment, including the potential for conversion of productive agricultural lands, for construction of residences, easements, etc. on the newly created parcels. As discussed in greater detail below, evidence in the record also suggests that the Proposal could result in impacts to listed species and to groundwater supplies. There is no basis for the
County to rely on the common sense exemption.

A. Exemptions under Section 15061(b)(3)

An agency may find a proposed project exempt under Section 15061(b)(3) only if its precise language clearly applies. Any possibility that the project might culminate in a significant adverse change removes it from this exemption. If a reasonable argument is made that suggests a project might have a significant impact, the agency must refute that argument to a certainty to rely on the exemption. (Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 118.)

The Planning Commission was convinced that the Proposal was not subject to the common sense exemption, and did so in light of evidence in the record that the Proposal may result in significant impacts. The burden is now on the agency, the County, to refute the argument to a certainty, which is not possible under the circumstances.

The Planning Commission staff report stated that the Proposal was exempt from CEQA “review of the material submitted for the application and information on file.” This is simply not enough. When a project will result in physical changes to the environment, and there is dispute regarding the possibility of significant impact, the agency must prove that significant impacts cannot possibly occur. (Davidon Homes, supra, 54 Cal.App.4th at 118, emphasis added.) Also, when evidence is presented to a lead agency showing
possibility of adverse impact, the agency cannot rely on the absence of supporting data, because the agency cannot say with certainty that there is no possibility of significant effect on the environment. (Dunn-Edwards Corp. v. Bay Area Air Quality Mgmt. Dist. (1992) 9 Cal.App.4th 644, emphasis added.)

B. Potential for Conversion of Agricultural Lands

In this case, the Proposal will create five new parcels of approximately 50 acres each. Each of these new parcels could result in the construction of new residences, barns, other outbuildings and roads/driveways. The applicants continue to insist that they themselves have no plans to change the use of the property, but the fact remains, the County’s action in approving this would allow for development of the individual parcels.

When that development occurs is not the issue.

The General Plan, Land Use Chapter, Goal 7, is “Conservation of productive agricultural and other valuable open space lands.” The staff report to the Planning Commission suggested that the Proposal was consistent with this Goal because “[t]he applicant has stated that the property would continue to be used as a commercial almond orchard.”

Again, the fact that the applicants do not have any immediate plans does not change the fact that the five new parcels would be subject to development. In other words, the Proposal will allow for land use changes that could be contrary to Goal 7.

Additionally, Land Use Chapter, Policy 7.3 states that “[p]remature and uncoordinated division of land which forces the early cessation of valid agricultural uses shall be avoided.” Correctly, the staff report for the Board notes that the Proposal may well be contrary to this Policy. The Planning Commission staff report admitted that irrigation easements would likely be required to provide irrigation supplies to all parcels in the
event they are sold, but there is no indication that such easements will be included in the subdivision, and here again, the General Plan Policy favoring large, productive agricultural parcels is not consistent with the Proposal.

There is substantial evidence in the record before you indicating that the Proposal may result in premature conversion of productive agricultural lands.In addition to being inconsistent with the General Plan, this conversion is a potentially significant impact under CEQA. The County may not, at this point,rely upon an absence of data in the record regarding the specific impacts to agricultural lands, but must move
forward to an Initial Study. (See Dunn- Edwards Corp. v. Bay Area Air Quality Mgmt. Dist. (1992) 9 Cal.App.4th 644.)

C. Potential Impacts to Listed Species

The United States Fish and Wildlife (“USFWS”) has reviewed the Proposal and stated that the subdivision may have significant impacts on federally listed species. This opinion from the experts at the USFWS is “substantial evidence” under CEQA. (See Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 156 [memorandum from the state Department of Conservation was substantial evidence].)

The inquiry should end here. An Initial Study is required, as the County simply cannot say with certainty that there is no possibility of a significant effect on listed species.

D. Potential Impacts to Groundwater

There is also evidence in the record that the Proposal could ultimately impact groundwater supplies. For example, the staff report indicates that the applicants are “prepared to dig another well if needed” and goes on to note that the Merced Irrigation District has submitted a comment that the groundwater supplies in the Planada area are in an overdraft condition. Thus, the Proposal may result in significant impacts to
groundwater supplies. The County cannot say with certainty that there is no possibility of a significant effect on the environment. Again, this should be the end of the inquiry.

It is unclear why the applicants and/or Planning Staff so wish to avoid the preparation of an Initial Study, but one is required under CEQA. Approval of the Proposal based upon a finding that the Proposal is exempt under the common sense exemption would be a violation of CEQA.

We appreciate the opportunity to comment. We respectfully request that the Board of Supervisors uphold the decision of the Planning Commission that the Proposal is not exempt from CEQA, and deny the Proposal.

Very truly yours,
Marsha A. Burch
Attorney
cc: San Joaquin Raptor Rescue Center
Protect Our Water
Donald B. Mooney, Esq.

The land under discussion is flat, rich farmland lying just below the foothills to Yosemite into which deep layers of topsoil have been carried down from the hills by Bear Creek The local row croppers regard it as the best land in the county. On days when the smog is not too heavy, the peaks surrounding Yosemite
Valley are visible. Its misfortune, from an agricultural standpoint, is that lies only a few miles south of UC Merced. This rich farmland lies on the border of gently rolling hills in seasonal pasture that rise to the Sierra foothills. The proposed development, which the county Planning Department describes as exempt from CEQA because it will cause no environmental effects, also lies near a small, unencorporated village, Planada,
populated mainly by farmworkers who work in the nearby orchards, dairies and rowcrops.

The developer pressure on its decrepit sewer system is more evidence that the whole region, thanks to the arrival of UC Merced, is now viewed as profitable residential and commercial real estate.

Finally, the preceding and following should be viewed in the context that the planning department claims it is unable to come up with a list of how many general rule exemptions it has recommended and county land-use authorities have approved during a speculative real estate boom -- greatly exacerbated by UC Merced -- that has resulted in Merced achieving the top mortgage-foreclosure rate in the nation.

You are in the midst of yet another chapter of the finance, insurance, real estate and large landowner corruption in Merced County. But this chapter, like so many in the annals of the real estate development of the county, also has a twisted ending. So read on.

Merced County Board of Supervisors Public Hearing:
To consider an Appeal of the Planning Commission Denial of Minor Subdivision Application No. 07-022 submitted by Bear Creek Ranch Partnership ...to divide one 265.6-acre into five parcels ...

County Planner James Holland described the project as the subdivision of a commercially viable parcel of agricultural land, noting comments made by the US Fish and Wildlife Service and Maureen McCrorry, criticizing the project. Holland explained that one corner of the property is occupied by a farm labor housing project and another parcel would be the home of another farm labor housing project (recently removed from another location in Planada for the benefit of the same developers who needed its sewer hookups). The entire area is within the Agricultural Preserve but has a relatively low rate of Williamson Act contracts, Holland said. He noted that according to the county General Plan, splitting commercially viable agricultural parcels into smaller parcels is to be avoided. The land is prime farm land that lies within the Merced Irrigation District and also has wells on the property.

Noting that public access is generally good on the property, Holland explained that the parcelization seemed compatable with surrounding parcel sizes. However, he said that the planning staff received no answer from the developers about the reason for the splits. He explained that these splits have to do with the ownership situation and not with agricultural competitiveness. The planning commission could not make the findings to
approve the project.

Holland explained the board's necessary considerations:

1. Deny the appeal that the project is exempt from CEQA.
2. Decide it is potentially eligible for exemption and send it back to the planning commission.
3. To prove that "common sense" shows that the project would have no environmental effects, the board must be able to refute the information that it would have effects.

Therefore, the options Holland put before the board were:
1. Close the hearing.
2. Determine CEQA is necessary.
3. Uphold the planning commission decision.

In reply to a request from Supervisor Mike Nelson for clarification, Holland explained the status of a project versus a non-project. If the project is denied, it no longer exists, therefore CEQA doesn't apply, he said.

Supervisor Diedre Kelsey felt compelled to say to the public that she had read all the comments.

County Counsel James Fincher said that all the comments from the Planada Association were included in the administrative record now before the board.

David Corser, representing the Planada Association said that in order to establish standing to file a lawsuit, this acknowledgement of receipt of comments was necessary. Corser went on to say that this project is part of a much larger project, although it lies 2,000 feet outside the Planada Specific Urban Development Plan. (Because Planada is unincorporated, its SUDP is designed by the county planning department and approved by a local municipal advisory commission, appointed by the district's supervisor.)

Corser noted that former county Supervisor Gloria Keene and former county Planner Des Johnson both work for the three developers behind this and the larger project. He said supervisors are not charged with bailing out developers who invest in prime farm land, but are required to review the entire Village of Geneva at Planada project.

Corser then began to talk about one of the investors behind the sometime partnership between Sessions, Pacific Holt and Ranchwood Homes, the developers. Board Chairman John Pedrozo, who represents Planada, stopped him abruptly at five minutes as the lurid tale of Thomas Nevis' business dealings began to unfold.

Bryant Owens followed Corser and finished reading the letter on Nevis, citing convictions for bank fraud, revocation of prole and violations of the IRS Code that resulted in a civil judgment against him of $36 million. According to Owens and Corser's research, Nevis is permanently enjoined from doing business by any name other than his own.

Louie Bandoni, president of the Merced County Farm Bureau testified that the farm bureau opposes the project because it is on prime farm land and therefore protected by CEQA. He said the split was not a typical kind of parcelization farmers use, for example to divide and among children. Reminding the board that this land had been considered earlier for the Red Rock Golf Club and remains part of the overall Villages of Geneva at Planada project. The intent of the developers was clear, he said: the conversion of prime agricultural land for commercial real estate development. Furthermore, this conversion would lead to more lot splitting and conversion because, surrounding smaller parcel sizes would only increase the planning department's recommendations for more lot splits and general rule exemptions.

Diana Westmoreland Pedrozo, executive director of the county Farm Bureau, told the board the project is inconsistent with the county General Plan. She also asserted that CEQA requires special consideration be given to agricultural land conversion. She read from a letter prepared by a Farm Bureau attorney that quoted and cited CEQA case law. She concluded saying that hydraulogical studies are required to prove there would be no detrimental effects to groundwater in an area that already has a significant overdraft of
its aquifer.

Maria Giampoli, representing her family and the Marchini family of farmers from nearby Le Grand, said they could vouch for it being the finest quality agricultural land because they have leased adjoining land for a long time. She argued that there was no point to dividing one of the best stretches of farmland in the county ... "and parcelization divides."

Colette Alvernaz of Livingston told supervisors is was time to "Just Say No" to rezoning agricultural land for other uses and chipping away at large, commercially viable parcels for the sake of real estate development.

Benita Burroughs, president of the Merced Chapter of the California Women for Agriculture, told the board it should not make this kind of decision while the county General Plan was being updated. She noted that the number of houses that could be built on the smaller parcels would definitely have an impact on the acquifer. "Farmers are under a domino impact," she said.

Kim Rogina said her family also owns prime farm land adjacent to the project site and knew that it was excellent tomato ground. She added that although she was for development, being a realtor, she was for development within the Planada SUDP. She concluded that Merced now has an abundance of houses for sale and that this project was premature.

Steve Herum, an attorney representing the developers, lectured the board on teh "fair and equal application of the subdivision ordinance and that no one has access to the motives behind the requested split. He said that the proposed splits are still much larger than the requirement. CEQA requires substantial evidence, he said, and the best substantial evidence the board could get is that its own planning staff agreed there would be no environmental effect, therefore recommended the general rule exemption.

CEQA requires significant evidence of cumulative impacts as opposed to mere evidence and speculation without quantification, he argued. The larger Villages of Geneva at Planada question is irrelevant.

"Your professional staff is your evidence, the capital Evidence," Herum asserted.

Rob Hawkins, the engineer on the application said that county planning staff concluded that the project was exempt from CEQA.

John Colbert, the farm manager for the Bear Creek property, testified that the parcel splits would not change the way the land is farmed. The splits are just to implement option agreements, he said.

John Sessions, the project proponents said that the board's rejection of the previous project for this land, involving three developers (Ranchwood, Pacific Holt and Sessions) was probably a favor, given the way the real estate market is going. He said that three-developer group has disbanded and that the current plan is to buy a fifth of the property at a time while keeping the rest in farming. They need to pay $100,000 a year to
preserve the option. He said the application is "not about land-use." This was followed by several sad personal stories, ending with: "I appeal to your innate sense of fairness," and a vintage developer whine: "I hope not every farmer splitting land has to go through CEQA review ... aleviated by the next speaker, Mary Furey, a Planada rancher.

Furey told the supervisors that this applicated boiled down to "speculators rights versus property rights." On the previous attempt by the three-developer combo, the guidance package was denied and the parcel splits should be denied. No farmer could farm at these land prices, she said. When the next boom starts, these parcesl will be built out. This is the best land in the county and possibly the best land left in the state, Furey continued. The aquifer in the area has been overdrafted for 30 years, she added.

"It will be the death of Planada as we know it," Furey concluded.

Tom Grave of Merced Alliance for Responsible Growth, noted that the Planada Municipal Advisory Council opposes this project and "they are your eyes on the ground." He mentioned that the General Rule Exemption requires "certainty that there is no possibility of environmental impacts." Without that certainty, the exemption cannot be used. The ownership situation with the property does not justify the split, Graves said,
concluding that, "Everything in Merced County depends on agriculture."

Maureen McCorry, noting a letter of concern from the US Fish & Wildlife Service and the letter from Marsha Burch, said that Sessions and other developers in Planada have gotten the Planada Community Services District to propose a grant to get the state to pay for doubling the sewer capacity. She said that if she had sat down to plot out a novel of how developers overrun a town, she could not have come up with the reality in Planada.

Prior to the supervisors taking a break, Supervisor Kelsey announced that she had read everything but the USFWS letter.

After the break, County Counsel James Fincher laid out the supervisors' options:

1. Deny the appeal.
2. Deny the appeal on the CEQA issue, i.e. that the general rule exemption doesn't apply, and send it back to the Planning Commission.
3. Approve the application and the findings that CEQA doesn't apply (i.e. the general rule exemption is suitable for this application).
4. Send it back to the Planning Commission to consider new evidence.

Supervisor Gerry O'Banion asked if there was new evidence.

Fincher said there was new information, some of it relevant to the CEQA issue. There is also a letter from the USFWS citing impacts to 10 species. The USFWS recommends studies, Fincher said. Also, the board would have to refute the planning commission's determination that the exemption doesn't apply.

Supervisor Mike Nelson asked if the application was "premature and uncoordinated.Planner Holland replied that there is no need for this under agricultural economics. The split does nothing to enhance agricultural operations or improve adjacent agricultural operations.

Holland posed the question: Why is CEQA review now required? On its face, the project is exempt from CEQA, he said. The board had denied the Villages of Geneva at Planada project, so this is not piecemeal development. However, the comment letters changed the minds of the planning staff because all that is needed is one question to throw out the general rule exemption. The board should direct CEQA review, he
concluded.

Nelson asked what bearing the former Villages of Geneva project has on this project?

Holland said that was a "yes/no" situation. Yes, there is a history, but No, we look at this project separately. He said the project has gone through a reasoned, deliberative process and that what the public provided signaled the need for additional information.

"The project works," concluded Holland, the planner for the Riverside Motorsparts Pork project.

Supervisor Kelsey asked if the decision the supervisors were being asked to make was discretionary. Then she launched, noting that the supervisors in this case know more about the project than the planners seem to. And there are some "shocking" elements to this project, including that it appears that "some members of the Local Agency Formation Commission may be on somebody's payroll. " She said that there is a cumulative impact to parcel splits. Merced County does more splits than most jurisdictions, she explained. There is no general rule exemption in this case. CEQA will require mitigation, and there is no mitigation here, she concluded.

Supervisor John Pedrozo, who represents Planada, asked how many houses could be built on the proposed parcels.

Holland said that there could be five houses per 50 acres, but an administrative permit could increase that to 20 and a conditional use permit could increase it to 30.

Pedroza said to leave it as it is.

Kelsey said that speculative land prices are not related to agricultural prices. She added that the board has asked for mitigation for discretionary actions and that it seems that the intent on this project is probably for development (not agriculture).

Kelsey concluded that she would like to see future appeals like this one contain some sort of environmental review. If the board denies this, she said, it might affect the economic viability of the ownership of this property, but that is not the board's problem.

Supervisor Kathleen Crookham said she thought it was a property rights versus a community feeling issue. (Crookham has an ownership in a large ranch east of Planada and is a well-known organizer in the past of property-rights mob scene, along with Rep. Dennis Cardoza, Shrimp Slayer-Merced.

Kelsey asked if there were no motion, what would happen.

Fincher replied that it would be a denial of the application and the appeal.

Herum, Sessions' attorney barged in (the public hearing was over) pleading that if the project was denied that it would be without prejudice.

Board Chairman Pedrozo told him no more public comments would be heard.

Silence ensued.

Nelson mused on the General Plan. "When is too small too small?" Forty acre minimums are permitted and 20's are legal. He wondered if only family farmers were to have rights under the General Plan. It was vintage rightwing ideologue pseudo-reflection.

Nelson then moved to send the project back to the staff for an initial study.

Fincher interpreted his motion to mean a denial of the appeal and a return of the project to the planning department.

O'Banion also mused (possibly reflecting on the Gustine minor subdivision): 20-acre splits are easy, 50-acre splits are hard. He noted that the board is setting a dangerous precedent of CEQA review on agricultural conversions that are ag-to-ag conversions on 50-acre parcels.

(This contradicts the facts on the table, that this split is not about agriculture but about an option scheme by developers. God forbid, something like this could happen in Dos Palos, where O'Banion lives.)

"Efforts will be made," O'Banion muttered darkly, to dig up what's happened on other parcels in the future that would allow CEQA review. (Death of the general rule exemption as the board has been employing it so long and so profitably.)

"There is going to be CEQA review on every subdivision!" he said.

(End of civilization is at hand.)

Nelson asked Fincher if this would set a precedent.

Fincher said, "Yes and No. It depends on the evidence in the record."

Kelsey wondered by the applicant "pushed this this far. It's not the parcels, it's the houses you can put on them." She said it was precedent setting.

O'Banion said he couldn't support a motion to send the project back to the planning department.

Kelsey said neither could she. She wanted to just deny the application and the appeal.

Fincher reminded her there was already a motion on the floor.

Crookham asked if sending it back to the planning department was precedent-setting.

Fincher replied: "Yes and No, depending on the evidence. However, people could argue that it set a precedent.

O'Banion said there was a presumption for general rule exemption but not in the documents.

Fincher said it is a denial based on procedure.

The board voted 3-2 against Nelson's motion to send it back to the planning department.

After some other chit-chat, O'Banion, chuckling, moved to approve the appeal.

The motion died for lack of a second.

Fincher said that the project would die without action. "This item is now closed."