City Attorney’s Letter Misrepresents the Law

Below is a Morro Bay stakeholders’  official attorney  summary analysis of a letter originally written by Morro Bay Assistant City Attorney Christopher Neumeyer, dated April 16, 2018, to the Morro Bay Stakeholders.

The subject of the letter is the City’s segmentation, or piecemealing of the environmental review of the development into two parts – site preparation and the residential development. Based on our attorney’s in depth analysis we feel that Mr. Nemeyer’s letter shows a clear misrepresentation of the actual law.

We hope this prompts people to attend the Planning Commission Meeting on Tuesday, June 19, 2018 to urge the Commissioners to not approve the permit without a comprehensive environmental impact report (EIR).

Introduction and overview:


  1. Mr. Neumeyer changed words in the law to pervert its meaning and create the appearance that piecemealing does not exist in this case.
  2. Mr. Neumeyer’s invented “definitive plans” rule must be disregarded because it does not exist in CEQA.
  3. Other cases cited by Mr. Neumeyer are generally not applicable and text is cherry picked.


  1. Environmental review of site preparation must include discussion of the effects of the residential development to satisfy CEQA’s requirements.
  2. Clearing the site will induce growth and the City is required under CEQA to “…evaluate the environmental effects of the most probable development patterns”.
  3.  Site preparation including demolition is routinely reviewed as part of the “whole project” by the City of Morro Bay.
  4. Piecemealing risks pre-commitment to the next phase of a project and loss of open-minded decision-making.

Read the complete analysis below:

Prepared by Cynthia Hawley, Attorney on behalf of the MORRO BAY STAKEHOLDERS on June 14, 2018

6-14-18- Stakeholders’ attorney report-on-neumeyer-letter

Original Letter from Neumeyer to Stakeholders


Note for Planning Commissioners, prepared by Betty Winholtz

I want to identify concerns with the staff report for tonight’s meeting:

First, none of the pages are numbered. This makes it difficult to reference sections of the report.
Second, the link provided to the 2018 MND is actually a link to the 2016 MND, as listed on the top of each page.
Third, the staff report refers to the second MND as the February 2018 MND, yet the document has the date June 2018 on each page.
Fourth, project phasing is addressed–metal materials removed, soil testing, concrete removal, site condition review, grading/planting– but omits the final phase: housing development, as first identified in the “Risk-Based Closure Report,” 1996, stated at a Planning Commission meeting as filed with the County Health Department, as is its zoning, and as stated in the staff Report’s CONCLUSION.
Fifth, any tree over a decade old in Morro Bay can be labeled by an arborist as “diseased or dying.” No tree in an ESHA should be cut down. An ESHA is for animal habitat not humans.
Sixth, the serious nature of contamination is downplayed. “The objective of a RBC [risk-based closure] approach is to enable risk managers to determine what chemical concentrations can  remain in the environmental media without posing potential adverse effects on an exposed individual [through skin, injection, inhalation].” The standards the RBC used were based on superfund guidelines. Fortunately, “The  maximum concentration of TPH [total petroleum hydrocarbons] detected from surface to 10 feet  below grade…is also lower than the  risk-based  action level that is protective of a construction worker.” However, the report stopped at a  depth of 10 feet for being safe.

Also, please be aware of the difference between the two labels I italicized from the staff report: “The environmentally sensitive habitat area is comprised of the stream channel and areas of adjacent riparian vegetation, collectively called the “stream corridor” and referred to as ESHA in the Mitigated Negative Declaration.” The buffer is adjacent to that. I believe the Planning Commission should decide if this is an urban or non-urban area in order to identify the buffer width. As taken from the Zoning Ordinance, “Streams. The minimum buffer for streams shall be one hundred feet in non-urban areas and fifty feet in urban areas.”

Respectfully submitted,
Betty Winholtz

Make your voice count – attend the Planning Commission Meeting:

Tuesday, June 19, 2018 – 6:00 p.m.

Veteran’s Memorial Building – 209 Surf Street, Morro Bay, CA

Concerned Resident 195