Tulare County is a diverse 4,800 square miles, with extensive, mountainous public lands in the east, and some of the country's most fertile farmland in the west. It encompasses the Sequoia Park, parts of the Giant Sequoia National Monument and Sequoia National Forest, and every year hosts the World Ag Expo. How all of these diverse elements fit into a single general plan is the question that has vexed planners and stakeholders alike for the better part of the past decade.
While many cities and counties across the state have been promoting compact development through their recent general plan updates, critics contend that Tulare County's update does the opposite. Or it would if ever it was approved.
On October 19, the County Planning Commission postponed a decision on whether to recommend the General Plan Update to the Board of Supervisors, and instead voted to continue public comment on the plan during its next meeting, November 16, and directed the county Resource Management Agency to respond to critics of the plan, a coalition that includes the Sierra Nevada Alliance, Tulare County League of Women Voters, and the Kern-Kaweah chapter of the Sierra Club.
In 2003, the Tulare County Board of Supervisors direct the county Resource Management Agency to update their previous plan. That plan, adopted in 1964 and amended in piecemeal fashion, became, in the words of Dave Bryant, division manager for the TCRMA's Special Projects, unusable.
The goal for the current update cycle was to modernize the plan, creating a single reference that would have both the breadth necessary for the next 20 years, and incorporate the changes in planning and environmental concerns introduced over the last 50 years, such as an emphasis on nodal transportation planning and fully integrating mandates of the California Environmental Quality Act.
The update was supposed to conclude in the fall of 2005.
However, requirements of AB 32, the Global Warming Solutions Act passed in 2006, required the county to submit a Climate Action Plan, which has meant even more delays in the process.
The new plan comprises three large subplans: the Rural Valley Lands Plan, Foothill Growth Management Plan and Mountain Framework Plan, along with a passel of previously adopted sub-area plans, including newly designated hamlet community plans and corridor plans based on projected growth, especially around Highway 99 and State Route 65.
As new policies, the plan "shall encourage" maintaining distinct urban boundaries, development based on existing infrastructure, and consistent land use within urban and hamlet development boundaries. The plan will also ensure that new development doesn't occur without adequate infrastructure, including access to potable water. Tulare County's rural population pulls primarily from groundwater wells, and a 2006 survey of those wells by the State Water Control Board found that of 20,000 private wells, 40 percent had unsafe levels of nitrates; more recently, a U.N. Human Rights Commission report also voiced concerns about Tulare County's water quality.
The plan was presented for public comment in 2008 but has been mired in debate ever since. Which will begin the next phase for the county: Defending the plan.
From the beginning, there have been concerns raised about the level of planning in both the update and the Environmental Impact Report. The initial Draft EIR did not include a greenhouse gas inventory, nor a Climate Action Plan; remedying that led to the recirculated DEIR of 2008. That RDEIR led to a scathing letter from the desk of Susan Fiering, Deputy Attorney General, in May 2010. The letter holds that "the General Plan relies on unenforceable policies that ‘encourage,' but do not mandate that growth will occur in certain areas, with the result that all important development decisions are left to the marketplace."
Fiering's letter continues to describe the plan as an "aspirational document" that fails to exercise control over growth, saying that the open-ended nature of the plan means that accurate description of the impacts is impossible, and that the DEIR neither considers nor imposes enforceable mitigation measures.
Lynda Gledhill, spokeswoman for the office of Attorney General Kamala Harris, says that they are reviewing the current iteration of the plan and final EIR, and that the attorney general is very concerned about the ramifications for the predominantly Latino and disadvantaged communities throughout Tulare County. If the plan hasn't changed substantively, the letter, including its implicit threat of lawsuit, "would speak for itself."
Similar comments were made by the Center for Race, Poverty and the Environment, and by a coalition of critics including the Sierra Club's Kern-Kaweah chapter, the Sierra Alliance and the Tulare County Citizens for Responsible Growth.
Gordon Nipp, vice-chair of the Kern-Kaweah chapter of the Sierra Club, is incensed over what he sees as a lack of enforcement and performance criteria, and rejects the planners' and supervisors' arguments for keeping the plan flexible.
"It's so flexible that the county doesn't have to do anything," he said. "Flexibility allows the good ol' boys network to run things."
Nipp cited a range of issues, from relying on coordination with state and area agencies to mitigate air pollution rather than a specific county plan, saying that the only local mandate comes from the Air District's indirect source rule, to farmland loss, to water quality — none of which are adequately addressed, according to Nipp.
"They don't have any mitigation methods — They haven't done any in the past, they're not committing themselves to any now, so why would we think that they're going to do so in the future?" asked Nipp. He said that if the planning commission and Board of Supervisors adopt the plan as its currently written, a lawsuit from the Sierra Club is likely, noting that the Sierra Club prevailed over the city of Tulare in a similar lawsuit.
Rich McIntyre, Campaign Director of the Sierra Nevada Alliance, concurs with Nipp.
"Instead of having infill, this plan has sprawl," says McIntyre. He says that the Board of Supervisors has taken the position that it's not their place to direct growth. "From the perspective of the alliance, that is exactly the role of supervisors. This plan is an abnegation of their role."
McIntyre cites the recent plans in Mariposa and Nevada counties as solid and sustainable, and brings up a specific sore spot for many of the critics of the plan — a proposed development in Yokohl Valley that would comprise 30,000 new residents and 56 square miles of new urban development for the county, also cited by Nipp as one of the big beneficiaries of the new plan. McIntyre says that the Yokohl Valley east of Visalia development would be prevented by the sort of plans adopted in Mariposa and Nevada counties, but not in Tulare County.
"The plan basically allows new development whenever, development wherever. Either you're going to have infill and infrastructure replacement, or you're encouraging sprawl," McIntyre said, emphasizing that the situation is especially dire for lower-income residents. "It's the disadvantaged communities that always pay the price for bad planning."
McIntyre also complains that the comments made by critics haven't been adequately integrated into the final revision.
"The comments we made were extensive, and there has been no movement. The supervisors have dug in their heels."
Supervisor Steve Worthley disagrees: "We went through a process of public comment — we're not proposing any drastic changes or anything out of the character of Tulare."
Likewise, he says that the complaints miss the point of the document.
"It's a general plan — you're very careful to avoid specifics," said Worthley, adding that projects would be evaluated individually, with details appropriate for those projects.
The plan itself does contain roughly 50 pages of responses to the public comments, and specifically addresses the complaints about the enforceability of the "should" (as opposed to "shall") language repeatedly used in the general plan. The argument, from Brian A. Garner's "A Dictionary of Modern Legal Usage," is that the "should" language creates a directory provision, requiring "substantial compliance only; not exact compliance." The RMA sees this as allowing for the necessary flexibility required for a truly general plan, saying in their response, "'Should,' as used in General Plan policy development, is a less rigid directive to be honored in the absence of compelling or contravening considerations … They are clear expressions of the policy makers' (i.e. Board of Supervisors) intent to rely on the subject policy to guide relevant decisions, and so must be recognized and analyzed in such decisions."
The responses also address complaints over the level of detail, holding that beyond the statutory requirements, counties have wide latitude in implementation, and that the implementation in Tulare County will be primarily set by lower-level and more local regulations.
"The general plan, in addition to being a policy document, is a guide — there will be a host of implementation policies as it proceeds, specifically updating zoning and ordinance codes," said Bryant.
And while McIntyre has complained that the county is asking critics to take the assertions of smart growth and effective mitigation efforts on faith, Bryant responds by cataloguing the outreach process: "There have been multiple public outreach efforts during the general plan process. After release of the 2008 version of the plan staff has included recommendations to improve clarity in the land use element, provide for long-term sustainability of water resources, and initiated a climate action strategy. In 2010 and 2011, staff conducted 26 public outreach meetings in the 8 cities and unincorporated communities."
Some critics have been mollified — the Center for Race, Poverty and the Environment said that the changes made between the 2008 plan and the current revision shifted from a policy of essentially leaving poor rural communities to wither in order to shift growth to more urban areas, to supporting them with infill and infrastructure, especially through the new Hamlet designation. Alegria de la Cruz, legal director of the CRPE, said that the changes meant that while the CRPE still had concerns over the implementation process, they would work with local partners to ensure the interests of their constituents, rather than further participating in the planning process.
According to Worthley, part of the problem that smaller communities in Tulare County have, especially with regard to water supply and utility infrastructure, is one of scale, and that the updates to the general plan address that.
"We're trying to get them to a level of self-sufficiency. We're suffering some of the consequences of a failure to grow these communities, and we're looking to share the opportunities," said Worthley.
Worthley is confident that the plan will pass the next hurdles, the Planning Commission and Board of Supervisors.
"We're feeling good. We feel good about the plan and the direction of this county, which is in line with our history."
But for opponents of the plan, passing at the Planning Commission and Board of Supervisors would mean taking their case to the courts. Once the plan is approved, a lawsuit is very likely, said McIntyre.
Ultimately, the disputes over the adequacy of the language in the Tulare County general plan are legal questions. To resolve them will probably require litigation, which will only further delay the comprehensive update. For now, anyone seeking to build or develop in Tulare County will have to make do with the filing cabinets.
Bryant is circumspect. "The county has done its due diligence, circulated a final EIR. At the end of the day, the planning commission will decide the fate. There will be concerns that will be raised and concerns that will be addressed. At this point, it's premature to speculate on satisfying everyone."
Contacts & Resources:
Tulare County General Plan Update: http://generalplan.co.tulare.ca.us/index.html