Resolving some of the Stanford trail mysteries

Over the last week or two, we may have figured out some of the questions surrounding the extremely disappointing action by Santa Clara County in choosing an expanded the sidewalk along Alpine Road instead of a real trail in the Stanford foothills. So here are some questions:

Why did Stanford fail to support Supervisor Liz Kniss’ $11.4 million proposal to mitigate the recreational impacts from Stanford expansion elsewhere, instead of having an expanded sidewalk that is of little use? There are four possibilities.

Number one: Stanford truly believed that expanding the Alpine Road sidewalk is the best option for the community, and was willing to undergo the tremendous criticism it has received solely because it is looking out for the greater good. Okay, moving along then.…

Number two: even if fighting the Supervisor Kniss proposal provided no advantage to Stanford, they just want to win. While Stanford is intensely competitive, I think it is likely that they actually had some kind of ulterior motive and were not just fighting this proposal to show their power.

Number three: Stanford is trying to save money. Until recently, this was my favorite possibility for why Stanford acted this way - aiming to come to an agreement for doing minimal changes along the Alpine Road, and thereby have to spend much less than the $11.4 million they would have to give under the Supervisor Kniss proposal. While I still think this may play a role, Stanford has not shown much interest in saving money on any other land-use issue. Instead, they seem to be much more fixated in maximizing future development potential. So while this option is a possibility, the next option is what I think is most likely actual reason Stanford had.

Number four: Stanford wanted to kill the C1 Trail and never have it come back. I’d guess this is probably the real reason and the reason why they view the expanded sidewalk as better than paying an equivalent amount to recreational opportunities in Santa Clara County. If the expanded sidewalk is identified by Santa Clara County as the C1 trail, then Stanford expects it will never again have to fight with community groups over whether the C1 trail should run along the Stanford foothills, as it is shown to run in the 1995 Trails Master Plan Map. By contrast, if Stanford just paid the same amount of money to mitigating its recreational impacts, then the next time a new General Use Permit was under discussion, the C1 Trail alignment as potential mitigation for future Stanford impacts would come back onto the negotiating table.

So setting aside Stanford’s stated reasons, trying to kill a real trail and to kill it so it never comes back seems to be the most likely reason for the way Stanford acted.

Another question: why did Stanford say that the trail along the southern part of the foothills, the S1-C, would cost so much money? They said it would cost over $7 million even though the amount of work needed to be done to construct the trail would be far less than the amount needed for the extensive work required to build the Alpine Road sidewalk along a creek bed, let alone moving Alpine Road as planned for the C1 Trail. I would hesitate before accusing Stanford of an outright lie, but exaggerating and distorting the costs are possible. Why do it?

The answer might lie in Stanford's strategy of offering the S1-C alignment originally, and then taking it off the negotiating table at the right time. A letter from Stanford dated August 30, 2005, argues that the S1-C alignment is far more expensive then the S1-A alignment. In other words, Stanford implies the S1-C alignment is so incredibly generous that it is appropriate for Stanford to take that particular alignment off the table unless Santa Clara County does everything Stanford orders it to do on the C1 Trail. While this does not make sense in terms of matching Stanford's original, unconditioned offer of the S1-C Trail alignment, it appears to have been a successful negotiating tool for pushing the County around.

One question that is not yet answered: what would happen if Stanford reaches an agreement with San Mateo County and Portola Valley to do some type of construction on the Alpine Road Trail but does not end up spending the full amount of money that Stanford committed? It may still be possible that any remaining funds will get reverted back to Santa Clara County, but we are still trying to resolve the issue.

And a final question: what about maintenance? Stanford promised in the General Use Permit to maintain the C1 Trail, so where's the funding for that? Will the County let Stanford ignore that provision as well?

-Brian

"Disappointing, bad policy, and illegal"

Those are the words that I would use to describe the actions by Santa Clara County yesterday that have the effect of approving a sidewalk along Alpine Road. The article by the Mercury News is a good summary of what happened.

The County's action is disappointing for all the reasons we specified in the letter that we sent to the County that is copied in our previous blog post here. Supervisor Liz Kniss had proposed an alternative that would take the money that Stanford had said it is willing to spend on mitigation and use it for real mitigation somewhere within Santa Clara County in the vicinity of Stanford. Instead, money will be spent on a trail that is nothing more than an expansion of a sidewalk along a road that provides virtually no mitigation value for all the impacts Stanford's expansion has on recreational facilities.

Besides the core issue of prioritizing the building of an expanded sidewalk that is a bad option for the community, there are additional aspects of the deal that are bad policy. There is a "poison pill" in the agreement that effectively prohibits San Mateo County from considering an alignment outside of San Mateo County as part of the environmental review process. This handing of an environmental review control away from San Mateo County and to Stanford is something that could prevent the process from moving forward.

Finally, for the reasons we noted in our letter, this action is illegal. It violates the General Use Permit and makes the environmental decision to exclude the trail from Santa Clara County without any environmental review, as well as setting up a situation where virtually nothing could be done in terms of trail improvements for the C1 Trail, also without any environmental review.

The Committee for Green Foothills, other community groups, and the neighbors will have to decide what steps we may need to take next.

-Brian

UPDATE: There's a potential additional problem - the agreement may set up a scenario whereby if Stanford reaches an agreement with the different jurisdictions to do no more than token improvements on the Alpine Road sidewalk, then Stanford is free of all obligations, and the vast majority of the $11 million Stanford promised to spend would instead return to the university. Supposedly it's been fixed, but I'm not sure it has. The agreement says that if there's no agreement:

Stanford shall instead pay $8.4 million (as increased annually pursuant to the indexing mechanism in Section 4.e) or any portion of that amount that either was not paid to San Mateo by Stanford or was reimbursed by San Mateo to Stanford, to the County of Santa Clara

This is at least poorly written - what does the "any portion" mean if there IS an agreement? The possibility of losing the vast majority of the funding still seems present.

CGF position on Stanford Trails

The following is the letter we're sending today about Stanford trails.

-Brian

----------

December 13, 2005

Santa Clara County Board of Supervisors
County Government Center
70 W. Hedding Street, 10th Floor, East Wing
San Jose, CA 95110

Re: Agenda Item #57 – Stanford GUP relating to trails

Dear Members of the Board of Supervisors;

The Committee for Green Foothills opposes the recommendation of the County staff as completely unacceptable regarding the C1 Trail, although we have no objection to the S1 alignment. While the recommendation of County Supervisor Liz Kniss is not our preferred option, it is something we can live with. Our preference is that Stanford University simply do what it promised to do five years ago in developing a new trail on Stanford lands in Santa Clara County. Given the long delay that Santa Clara County has tolerated, Supervisor Kniss' suggestion that the recreational mitigation be constructed elsewhere appears to be a viable way to move forward.

We believe that the recommendation by County staff violates the Stanford General Use Permit and violates CEQA. The County Wide Trails Master Plan Map clearly shows the trail to be in Santa Clara County, as does multiple other pieces of evidence from the trails Master plan. There is a single checkmark box elsewhere in the Master Plan supporting Stanford's position, but since the two parts of the document are in conflict, we think the map shows a much better indication of what was actually intended.

County staff's recommended action would exercise County discretion by excluding the trail from Santa Clara County and by setting up a contingency where no trail could occur. These decisions have environmental ramifications and legally cannot be taken without prior environmental analysis.

We expressly reserve the right to litigate if the County follows the recommendation of County staff. We note that the recommendation by Supervisor Kniss would need limited environmental review and a General Use Permit amendment, but because this is a superior option to what County staff is recommending, we are not reserving the right to litigate if Supervisor Kniss’ proposal is followed today.

A significant improvement in the Supervisor Kniss proposal is that it would eliminate the possibility of no mitigation inherent in the County staff proposal. Inserting an amendment to the staff proposal with some type of monetary reversion to the County, should the Alpine Road sidewalk not be constructed, is inadequate for three reasons. First, the Alpine Road sidewalk expansion is a terrible “trail” that provides no significant recreational value – it should be rejected, not prioritized. Second, adding a reversion clause would mean adding seven years to the years of delay we have already faced. Third, Stanford will use community opposition to the Alpine Road sidewalk to reduce the changes to token modifications and thereby make only a token monetary contribution. A reversion clause will not fix the “token contribution” loophole.

While we believe it fits the intent of Supervisor Kniss’ proposal, we seek clarification that recreational facilities could include purchasing trail easements, and that the monies could be shared with other land use agencies within the geographic limit.

If Stanford opposes Supervisor Kniss’ proposal, we recommend the following:

1. Reject the County Executive’s recommendation.

2. Do not yet certify the Supplemental EIR for the S1 Trail, but prepare documents certifying the SEIR conditional upon Stanford’s written and unconditional proffer of the S1-C alignment.

3. If Stanford attempts to withdraw the S1-C offer, direct County Counsel to examine whether the County’s detrimental reliance on the S1-C offer means:

a. Stanford legally cannot withdraw the S1-C offer; and

b. Whether Stanford’s withdrawn offer puts it in non-compliance with the GUP.

4. If County Counsel determines that Stanford can withdraw the S1-C offer, direct staff to reinitiate the SEIR for the S1 trail to consider alternative alignments.

5. Begin the SEIR process for the C1 Trail. If Stanford refuses to pay for this process, find them in non-compliance with the GUP. Stanford must pay in advance, and has no control over the contents of the SEIR, including over alternatives to be considered.

6. If the Supervisors think they may want to accept the County Executive’s recommendation, defer any decision pending a written response from San Mateo County and Portola Valley regarding whether they are interested in the proposal.

Finally, regardless of any other action taken today by the Board of Supervisors, we are gravely concerned by Stanford’s placing additional conditions on the S1-C alignment that it did not make previously. The County relied on Stanford’s unconditioned S1-C offer when the County rejected alternative alignments supported by community groups. We urge the Supervisors to refer to County Counsel/staff the question of whether Stanford partially withdrew or otherwise added conditions to the S1-C offer that Stanford had not included originally, and recommend whether to develop a standard “firm offer” form for negotiating with Stanford, where Stanford acknowledges it is legally bound by the offer it has made.

Please contact us if you have any questions.

Sincerely,

Brian A. Schmidt

Legislative Advocate, Santa Clara County

Golf course violates permit in Morgan Hill

(guest posting by Chris Montague-Breakwell)

The Institute Golf Course, built illegally without permits from the city of Morgan Hill, has destroyed endangered species’ habitat and threatens to pollute local groundwater with fertilizer and pesticide run-off. And still, the city has not taken the golf course’s owners to task for their violations.

The Institute Golf Course has yet to fulfill the city of Morgan Hill’s mitigation conditions. The city’s Mitigation and Monitoring Reporting Program (MMRP) compliance review specified a groundwater investigation to be completed by mid-March of 2005. (Mitigation 9, Conditions #12A, B, C) The Institute Golf Course project engineer claimed they were waiting for the Santa Clara Valley Water District (SCVWD) to complete the Llagas basin water study before submitting their groundwater report. However, as the Llagas basin model is very broad in scope and will not be completed for some time, Morgan Hill again required the Institute Golf Course to submit a groundwater report. No penalty will be assessed to the golf course if “good faith” and “substantial activity towards completing the investigation by February 2006,” despite missing the city’s original deadline of March 2005 by almost one year.

After so much delay on pressing environmental impact questions, why the city is treating the Institute with kid gloves is a mystery. The disagreement over the water district study should have been resolved long ago. The Institute Golf Course did not show “good faith” when they enlarged the golf course without permits from the city, nor have they been quick to respond to the city’s environmental mitigation conditions to make up or repair land damaged by their development.

Further, peak water us for the golf course will happen during the hot summer months. How can the groundwater investigation, due February 2006, be accurately conducted in rainy winter months when irrigating the golf course will not put pressure on water resources?

-Chris

(For more information on The Institute Golf Course, click here.)

What's "conservative"?

I had an interesting exchange yesterday over who was being "conservative" in approaching a problem. The City of San Jose is trying to figure out much it will require from Coyote Valley developers in terms of providing health-care facilities for the uninsured people who will be living in the proposed city. They said they estimated that 15-20% of the population would be uninsured and underinsured, that they were concerned about requiring more facilities than would be actually used, and that they were planning for 10,000 people who would not have sufficient insurance.

I took notice of those figures and said they didn't add up - I thought 10,000 represented less than 15-20% of the expected Coyote Valley population. We worked out that it was just under 15% of the estimated population of 70,000 people (a smaller estimate than I've heard before, by the way). That's when the fun began.

"Well, we're being conservative."

"No you're not! You're being the opposite of conservative."

We went back and forth for a bit before a third person figured we BOTH were being conservative. They were being conservative with the commitment expected from developers. I was suggesting that conservative meant being conservative in mitigating the effect on public health that the developers created in establishing a city with thousands of uninsured people.

I guess it all depends on your perspective.

-Brian

P.S. And what does this have to do with protecting open space? If thousands of acres of farmland are to be destroyed (as is proposed in Coyote Valley), then the people doing the destruction should be responsible for all the impacts they created. Letting them out of any of their financial obligations will just encourage even more sprawl.

Red-legged Frog v. Development

(Guest posting by Chris Montague-Breakwell)

The endangered California red-legged frog’s proposed critical habitat has been slashed by more than 80 percent. A lawsuit by a group of developers brought a court order reducing the frog’s designated critical habitat. Under the new proposal, large areas along the Half Moon Bay and Montara coastlines will lose Federal protection, though they still will remain protected under the Coastal Act. The California Coastal Commission promises to keep the same protection on the coastside as when it was designated a critical habitat, however, areas not protected by the Coastal Act will have no such guarantees. Further, the Commission expressed reservations about developers’ influence over the critical habitat decision.

The general counsel of the Home Builders Association of Northern California, a party in the suit, claims the critical habitat provision in the Endangered Species Act is being misused by environmentalist to stop development and hinder economic growth. Counter to his claims, the Fish and Wildlife services released a study that predicted only 0.9 percent of housing units projected to be built in the next 20 years would be prevented by the critical habitat designated for the red-legged frog.

Coverage has been sparse, though this type of issue must be not be forgotten or ignored. The Half Moon Bay Review has a good summary here.

The Endangered Species Act itself faces a threat to its future, summarized here.

-Chris

Come on Stanford

Follow this link to a commercial that played on television during the Stanford/USC football game several weeks ago:

Come on Stanford

I think it helps show the depth of concern over Stanford's attempt to widen the Alpine Road sidewalk instead of putting in a new trail. While we at CGF were aware of the commercial, we didn't finance or produce it. A lot of people are upset at what Stanford is doing.

-Brian

More allies for the environment

The New York Times had an interesting article on growing environmentalism among Christian evangelists. They're focusing recently on global warming, which is very related to our mission of land use protection, and on protecting the Endangered Species Act from attack, also a concern of ours.

Religious issues and controversies are very far away from our area of expertise, but if people's value system leads them to support the environment, we're glad to hear it.

-Brian

Stanford trails at Palo Alto candidates' forum

Acterra recently sponsored a forum for Palo Alto City Council candidates to discuss environmental issues. The forum can be viewed online here, divided up by the questions candidates answered.

Particularly interesting were candidates' answers to a question regarding Stanford's attempt to use the existing Alpine Road sidewalk as one of the two trails it was required to construct (click on "Stanford Development" to watch). As much as anything, it shows the poor relationships Stanford has created by its actions on land use. The University should pay close attention to this, and try and change the atmosphere through appropriate action, not lobbying.

-Brian

The Tale of Jane and John

The Tale of Jane and John - A Land Use Parable

Jane Forthright just inherited a vacant, 39-acre parcel in Santa Clara County. This parcel has had a Williamson Act contract attached to it for years, which gave a tax break in return for requiring agricultural use and prohibiting development that is incompatible with agriculture. In fact, no cattle have grazed the land for years and all the neighboring parcels have converted to residential use.

Jane receives a letter from Santa Clara County telling her that they're "non-renewing" her Williamson Act contract because the land isn't being ranched, meaning the development restrictions will last 9 more years, and then be lifted. Jane has no objection, realizing that she didn't want to try and bring cattle there. What Jane would like to do is put a house on the land, but she doesn't want to wait 9 years.

Jane talks to the County, and they tell her she may be able to cancel her contract immediately, instead of waiting to develop. She qualifies, but must pay 12.5% of the land's fair market value to cancel the contract. Jane decides it's worth it to her, and goes ahead.

So that's Jane's story. Now John Sneaky's story begins the same way, but ends differently. He is in the exact same situation as Jane Forthright, and he wants to build a house, but he wants to evade the 12.5% cancellation fee. What to do?

John realizes he can switch his Williamson Act contract to an Open Space Easement. The County tells him that during the 9 year transition period, the Open Space Easement is required to be at least as restrictive as the Williamson Act. For some reason, though, the County lifts the development restriction requiring agricultural use as a condition for receiving building permits. The County thinks that other restrictions in the Open Space Easement make it as restrictive as the Williamson Act.

John Sneaky thinks differently - the County regulations allow him to choose the least-restrictive version of the Open Space Easement. This means he can only develop two of his 39 acres, but that's fine - it's plenty of space for the monster mansion he plans to inflict on the land. There are a few other requirements, but they don't meaningfully restrict his ability to develop the land. John Sneaky is happy.

At the end of the tale, Jane Forthright and John Sneaky are in the same position. John's nearly-meaningless Open Space Easement places no significant restriction in his ability to develop, so he pays the same taxes as Jane. There's only one difference - Jane had to go through the cancellation process required by state law and the California Department of Conservation, and she had to pay the 12.5% cancellation fee. John used a ruse to evade cancellation, a loophole in the County regulations that (it turns out) the County was warned it should close, but didn't.

John Sneaky is happy. Should the rest of us, who pay all our taxes, be happy?

-Brian

Footnotes (did you know that parables have footnotes?): Per some helpful constructive criticism, we note that cancellation involves additional criteria and processes beyond that mentioned in the parable. Also, this parable discusses the County's proposed policy; it has not yet been finalized.

Preserving our business/environment

I was gratified to see The Mercury News run our Letter to the Editor, following up on this well-done Op-Ed by Silicon Valley Leadership Group's CEO, Carl Guardino.

Our letter is here at the newspaper website, and I'm reprinting it below.

-Brian

------

Environment is our responsibility

Silicon Valley Leadership Group's president, Carl Guardino, emphasized in his Oct. 21 op-ed article that weather and "our beautiful physical environment are a key attraction to recruiting and retaining top talent'' here.

Keeping that beautiful environment means maintaining the undeveloped hills and farms that provide the necessary stopping edge to urban sprawl. Growing our cities up, and not out, is the key to our future.

Misguided proposals to convert Coyote and Almaden valleys into sprawl, to sacrifice still other farmlands, and to plop monster mansions on hillsides, all imperil our beautiful environment. And in just the last week, a new proposal would allow logging 1,000 acres in the hills above Los Gatos.

The weather we can count on, but the environment is our responsibility.

Brian Schmidt, Committee for Green Foothills
Palo Alto

Absolute power is mine!

Well, the title to this post may be slightly exaggerated - I've been named a member of the Stakeholder Group for the Santa Clara Valley Habitat Conservation Plan/Natural Community Conservation Plan (HCP/NCCP), a position that might fall slightly short of Absolute Power Over the Universe.

Still, I hope to help influence the development of the HCP, which is intended to protect endangered species from harm related to development. A good HCP could actually benefit species, while a bad one will trade away legal protection for meaningless mitigation. We've been following this process closely over the years, and being a Stakeholder will give us our best shot at getting a good HCP.

-Brian

One more problem with Coyote Valley development

San Jose plans to discontinue its Technical Advisory Committee meetings for Coyote Valley development, a process that gave CGF more input than in the Coyote Valley Task Force meetings. We emailed in our response, which I've attached below.

-Brian

--------
Dear Sal,

As a member of the Coyote Valley Specific Plan Technical Advisory Committee, I want to publicly register my opposition to the decision suspending the TAC, a "temporary hold" on meetings that I expect is actually permanent.

First, the TAC meetings are a smaller scale venue for genuine interaction among people that does not occur at Task Force meetings, where two minutes of speaking time, with no responses from City staff, provide no real means to influence the process. None of the major environmental advocacy groups (Committee for Green Foothills, Sierra Club, Greenbelt Alliance, or Audubon Society) are represented on the Task Force. Unlike the property owners who have been empowered by San Jose to advise City policy in a way that affects their private economic interests, environmental groups have been sidelined at the Task Force level. Even at the TAC level, it is unclear to me whether we have had any influence, but at least we have a greater chance to make our arguments.

Second, because I was not consulted prior to this decision, I assume other TAC members were also not consulted. I think their opinion would be helpful, and I suggest the City ask the other members whether the meetings should be put on hold.

I hope the City will reconsider its decision.

Sincerely,
Brian Schmidt

At 01:15 PM 10/17/2005, Yakubu, Salifu wrote:

> Coyote Valley Specific Plan Technical Advisory Committee (TAC) Members:
>
> To minimize the duplication of effort, the Technical Advisory Committee
> (TAC) meetings have been put on hold temporarily.
>
> The CVSP planning team is continuing to hold sub-committee and focus group
> meetings on specialized areas of study such as schools, transportation,
> affordable housing, parks and trails, medical services, etc. These
> forums, which several of you currently participate in, are the primary
> vehicles for the review of technical information pertaining to these
> subject areas.
>
> For the last several weeks the Coyote Valley Specific Plan team of staff
> and consultants have been drafting the Specific Plan document. This
> effort draws extensively from all the community, TAC, and Task Force
> input, as well as information and materials that have been developed by
> the consultants and staff. Once we have a public review copy of the
> Specific Plan (expected in early 2006), we will reconvene the TAC to
> receive your comments on the document.
>
In the meantime, we are continuing to hold the monthly public Task
Force meetings to apprise the community and Coyote Valley stakeholders of
any proposed refinements. TAC members are welcome to attend and provide
public comment to the full Task Force.

> We wish to thank you for continuing to serve as a member of the Coyote
> Valley Specific Plan Technical Advisory Committee. Your contribution
> during the past three years has greatly enhanced the process and
> development of the plan, and would undoubtedly shape the future of Coyote
> Valley.
>
> Please feel free to contact me at

(snip)

> if you have any questions. Thank you very
> much, and we look forward to your continued participation in this planning
> effort.
>
>
> Salifu Yakubu
> Principal Planner
> Department of Planning, Building and Code Enforcement

1,500 stitches in time same save 69,000

The rhyme doesn't work as well when you add a few digits, but the idea is the same. The Chronicle reports on attempts to stop an invasive plant in San Francisco Bay. The plant, a hybrid version of Atlantic cordgrass, has already taken over 1,500 acres of the Bay and threatens 69,000 more, including South Bay areas.

Invasive plants and animals are a constantly increasing threat to native species, and are generally considered to be the second-most important problem after habitat loss from development. This is a land management challenge that will be increasingly important in the future.

-Brian

More threats to wetlands at the US Supreme Court

The US Supreme Court has agreed to review whether the Clean Water Act (CWA) allows the federal government to protect wetlands that are hydrologically connected to navigable "waters" (rivers, lakes, etc.), but are not directly adjacent to navigable waters. A decision limiting the CWA would further reduce wetlands protection, a process that began several years ago when the Supreme Court ruled that that the CWA did not protect wetlands that are completely isolated from navigable waters.

CNN and New York Times had only brief reports about this issue, so I did a little research. That the Supreme Court agreed to hear this case is ominous; it means that at least four justices supported reviewing it. That might mean that at least four justices think the lower court was wrong in upholding the authority to protect wetlands. On the other hand, lower courts are split on whether wetlands like the one under review are protected, so the Supreme Court might have accepted the case in order to resolve the split decisions, and not because they thought it was wrongly decided.

We'll have to wait and see what happens with this case, and hope that it's not bad news. Here in California, even wetlands that are not protected by the Clean Water Act are still protected by state law, particularly the California Environmental Quality Act. We have tried to tell that to Santa Clara County, but the County isn't listening. Depending on this case, it could become even more important for the County to start listening.

-Brian

Congressman Pombo's land use ethics are raising concerns

Following up on our post last week about potentially disastrous Endangered Species Act amendments introduced by Congressman Pombo (whose district includes Morgan Hill), we were concerned to see the Congressman listed as one of "The 13 Most Corrupt Members of Congress" by an organization called Citizens for Responsibility and Ethics in Washington.

While general ethics issues are beyond our normal focus as an environmental organization, two of the charges against Rep. Pombo relate to land use. One concerns opposition to regulations for wind power, where Pombo's family gets royalties from windmills. The other concerns potentially destructive highways that Pombo wants built that could greatly increase the value of land that he has. The East Bay Express provides additional details, including yet another destructive highway that could be built over the pristine Mount Hamilton range (a proposal CGF has consistently opposed).

We would be very concerned if the attempt to weaken the Endangered Species Act were related in some way to making it easier to harm the environment on Pombo family property. This concern may need investigation.

CGF contacted Congressman Pombo's office for a reaction to these stories. The very nice person we talked to there said that the group making these corruption claims is a politically motivated attack group and that their claims don't hold water. We did not get a more specific response, but if we do, we will be sure to post it.

-Brian

Legislation threatens to gut Endangered Species Act

(Below is a guest posting by CGF volunteer Chris Montague-Breakwell. Guest postings reflect the author's viewpoints, which may or may not be shared by Committee for Green Foothills. -Brian)

Last Thursday (9/22) the House Resources Committee approved the Threatened and Endangered Species Recovery Act of 2005 (TESRA). The bill, crafted by Richard Pombo (R-CA), ostensibly revises the 1973 Endangered Species Act to better protect both environment and landowners’ rights.

Despite the name, the bill will drastically weaken the Endangered Species Act. Important problems with the legislation include:
· Removal of the critical habitat clause in the original ESA with no guarantee that land necessary for species recovery will be protected.
· Removal of the Cabinet-level Endangered Species Committee responsible for resolving conflict between landowners and species conservation.
· Federal government must respond within 90 days of a proposal by developers. If the deadline is missed, development may take place regardless of effect on the wildlife and environment.

The ESA has protected and expanded endangered species population. The Bald Eagle, the Whooping Crane and the California Condor are but a few of the ESA’s success stories. Supporters of the TESRA claim the ESA has failed, using dubious statistics to back their claims. But TESRA legislation does not address ESA shortcomings, instead focusing on limiting the power of the original act. The bill could come to a vote in the House as early as this week.

The Mercury News has an editorial on the TESRA bill.

Earth Justice has an extensive review of the bill.

For the full text of the bill and legislative progress go to the House Resources Committee site.

-Chris Montague-Breakwell

Planning, Zoning, and the Environment - this Thursday

The Sierra Club’s Loma Prieta Chapter is hosting a panel discussion in Cupertino this Thursday on the relationship between urban planning, zoning regulations and environmental protection.

Moderated by State Senator Joe Simitian, the panel includes a “green developer,” a rep from the Sierra Club’s California Urban Growth Management Committee, and a transportation planner. More info on the LP website.

The event is from 7-9 pm at the Creekside Park Building, 10455 Miller Avenue in Cupertino. RSVP to Wendee Crofoot, 650-390-8411 x332.

- Kathy

CGF in the news

A roundup of interesting newspaper articles this week:

The San Mateo County Times has a good article on the progress of the Devil’s Slide Tunnel.

The Mercury News covered the latest in the push to develop Coyote Valley.

And the Epoch Times featured CGF in a general article on open space.

-Kathy

Coyote Valley, accelerating towards sprawl

Here's the latest Mercury News article on Coyote Valley: the City, in our opinion, is trying to loosen restrictions on growth, and in doing so it is placing the rest of San Jose at a financial risk. It's still unsettled what the Task Force will ultimately decide, and then the City Council will have to make its own judgment about whether the decision is a good one.

-Brian

Great move forward to funding Santa Clara County Parks

Thanks to everyone who responded to our Action Alert calling on the Santa Clara County Board of Supervisors to endorse a Charter Measure for parks funding! The Supervisors heard you, and voted unanimously today to support an endorsement resolution.

A lot of work remains between now and the likely election date of June next year, but this couldn't have started off better than it has. Thanks again!

-Brian

Protecting parks in Santa Clara County

CGF sent out an Action Alert last week to call for support for extending the Santa Clara County Parks charter funding, which ensures that the parks will have a dedicated, stable financial funding source. We're already hearing a lot of wonderful support from the community in response. With permission, I am posting below the response from Rod Diridon Sr., of the Mineta Transportation Institute.

-Brian
-------

CGF,

We must all strongly support the retention and additions to the County Parks Charter Fund. I'm trying to shuffle my schedule to be with you at tomorrows Board meeting.

The original Parks Charter Campaign of 1972, I think, was my introduction to county government. I was one of many co-chairs as a kid Saratoga City Councilmember, along with Mary Davey and others, and remember the elation at the campaign's success. The campaign group, lead by Wally Stegner and others, often met at the Duveneck's and dreamed of a better future for our Valley. We were so proud to have done something that would have lasting impact; it felt good in a deep, transcendent way.

But that impact can be lost!

County parks' financing charter protection is needed more now than ever and should not only be reestablished but increased significantly.

1) The added funding is needed because the County's park acreage is so much larger now (from about 2,000 acres in the early 1970s to almost 50,000 acres now).

2) Urbanization is causing so much more pressure on our parks. The Valley had about 750,000 people in the early 1970s and is over 1.7 million now.

3) Beyond the development, custodial and maintenance cost increases, we must acquire those last parcels that are needed to ring the currently urbanized areas. That long-pursued objective will not only protect open space and create park lands but also preclude the extension of growth-inducing services further into the hills. Our open-space districts and land trusts are doing all they can but don't have the funding to complete the job by themselves.

4) And we need to complete our creek-side trail system that began with the Los Gatos Creek Streamside Trail and is expanding but not fast enough. The land along those creek is perishable and once access is lost it's impossible to regain. And we have some relatively small but strategic gaps in the current trails that can only be filled by judicious investments.

5) Remember that the County's Historical Heritage Commission also provided historic preservation funding from the Parks Charter Fund. That's been discontinued because of the fiscal crisis but must be reestablished so we can protect the best of the past to create a better future.

Thank you for the very important work done in the past and currently by the Committee for Green Foothills. Wally Stegner would be proud of you!

Rod

Rod Diridon, Sr.

Supervisor 4th Distinct for 20 years (ret.)

And

Chair, League of Conservation Voters of SCC Board

Rod Diridon

Executive Director

Mineta Transportation Institute

SJSU Research Center

Our "To Do" list for Santa Clara County Supervisors

Santa Clara County Supervisors will be holding a land use workshop this month, and below is our suggestion on the subjects that need discussion and potential changes.

-Brian
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Memorandum

Date: August 16, 2005

To: Santa Clara County Supervisors and aides

From: Brian Schmidt, Committee for Green Foothills

Re: Potential subjects for the forthcoming Land Use Workshop


The Committee for Green Foothills suggests the following potential subjects for the Land Use Workshop to be held at the end of this month:

Conducting environmental analysis for land use decisions that are not regulated by expert agencies. The de facto position of County staff is that if an expert agency does not regulate a particular environmental problem, that problem does not exist. Two examples would be wetlands that are not subject to regulation by federal agencies under the Clean Water Act, and cumulative effects of greenhouse gas emissions. In both cases, CEQA documents produced by County staff in the last year have said there is no requirement to impose feasible mitigations for impacts. Some wetlands escape regulation under the Clean Water Act because they are not directly connected to “navigable waters,” an issue that has nothing to do with the environmental value of those wetlands. The environmental impact from greenhouse gases is self-evident.

The County could resolve this issue by clarifying that it has to independently examine environmental impacts, and it can also examine why an expert agency does not regulate a problem – if the lack of regulation is for reasons unrelated to the issue’s environmental significance, then the County should analyze and require feasible mitigations. With regards to greenhouse gas emissions in particular, a no-impact standard for cumulative greenhouse gas emissions in Santa Clara County could lead to funding beneficial programs such as installing solar panels on County schools and hospitals, and increasing funding for public transportation. Analyzing environmental issues can lead to direct societal benefits.

Tightening General Plan restrictions on development in Ranchlands, Hillsides, and Agricultural-zoned lands. Maintaining these areas as the least-developed and most agriculturally-productive parts of the County will be a tremendous challenge as ranchettes, monster mansions, and high-priced exurbs are pushed by developers. The County should consider changing the General Plan rules so that future subdivisions will not create lots too small for these areas, which currently can be as small as 20-acre parcels. Size limits on mansions and ridgeline protections have also been discussed as viable changes. Natural resource protections for riparian areas, wetlands, and endangered animals and plants could be added.

Ending certain process problems in land use planning. Examples include County staff making decisions on whether Negative Declarations are adequate when such decisions should be made by the Planning Commission, and scheduling public hearings weeks before written comments are due (which guarantees that the oral comments will not be substantive), and failing to put all publicly-available environmental documents on the Planning Office website.

Managing land under conservation easements. Some arrangement should be worked out with the Open Space Authority and MROSD over conservation easements; those agencies are much more involved in these issues than the County is.

Regulating vineyards/wineries, greenhouses, and mushroom production. Vineyards are spreading in Santa Clara County, a welcome development in some places and worrying in others. Erosion, pollution from pesticides, and development from associated wineries need better regulation. Santa Clara County should compare policies with other wine-growing counties and adopt comparable standards that it currently lacks. Greenhouses and mushroom production also get into a gray area of permanent development. Mushroom farming done inside buildings is little different from any other industrial operation. Greenhouses constructed with all-cement floors and plants grown on trays also constitute permanent alteration to the land (other types of greenhouses are much less problematic). These issues would also be worth examining.

Not calculating the cost of sprawl

The New York Times has a long article on people choosing to live in "exurbs," converting farmland and open space into isolated, long-distance commuting, bedroom towns. This raises a host of issues, but one interesting aspect of the piece was the polling that said people are willing to increase their commute by 15 minutes if it saves $12,000 on the cost of a house compared to a similar one that is closer to work.

People are not thinking through the costs in this case. Fifteen minutes at highway speed is 15 miles, or 30 miles round-trip, or 7,500 miles annually. At a reasonable allocation of 33 cents per mile (for gas, insurance, and car depreciation), that 15 minute extra commute costs the $2,500 each year. In effect, the person living further away is giving up an income stream of $2,500 annually to save $12,000.

So which is better? This nifty site says the present value of $2,500 annually over the life of a 30-year mortgage, assuming an inflation rate of 4%, is $43,208. That's how much less a house in the exurb should cost for each additional 15 minutes of commute time.

Just one more reason why converting open space to sprawl is a bad idea.

CGF appeals Santa Clara County approval of "wine caves" off Skyline Drive

We've become increasingly concerned in recent years about conversion of steep hillside grassland and forests into vineyards and wineries. See our appeal letter below - this is an issue that the County needs to examine more carefully.

-Brian
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August 4, 2005

Santa Clara County Board of Supervisors
County Government Center, East Wing, 10th Floor
70 West Hedding Street
San Jose, CA 95110-1705

Ms. Colleen Oda
Santa Clara County Planning Office
County Government Center, East Wing, 7th Floor
70 West Hedding Street
San Jose, CA 95110-1705

Fax (408) 288-9198

Re: File Number 4242-9-60-04G-04EA, Grading Permit – Rhys Vineyards Winery

Dear Board of Supervisors and Ms. Oda:

The Committee for Green Foothills joins with Sharon Peters and John DeLong in the appeal of the grading permit granted to Rhys Vineyards Winery for the construction of wine-storage caves and related improvements.

In general, we support and promote ranching and farming throughout Santa Clara County, including vineyards. In some places, replacing seasonal row crops with vineyards may even be a positive development that signals a longer-term commitment to agriculture. Rural industries like wineries, tasting rooms, and storage caves could also be appropriate under the right conditions.

We note, however, the potential impacts of increasing conversion of hillside grassland and forests to new vineyards and wineries throughout the Bay Area and in our County. These new developments present problems that are less relevant to long-established vineyards. While we do not take an outright stance against all new vineyards and wineries, the Committee for Green Foothills believes the environmental impacts of these projects must be closely analyzed. We appeal this particular project’s approval because of problems in the way that it was handled, particularly in what we consider “segmentation” of a single project into subsequent parts that have not been analyzed. We request that the Supervisors fix this problem by requiring the project appellants to submit an application for the entire project. We additionally request that the Supervisors begin the process of revising County codes to more closely regulate new vineyards and wineries.

Segmentation of the Rhys Vineyards Winery

As described by the applicant’s consultant and submitted by the applicant, the owner is applying for a “Winery Cave Portal Permit” that will allow operation of a 24,000 gallon per year winery. (Riechers Spence & Assoc., “Waste Disposal Feasibility Report”, Feb. 15, 2005 at 1 (attached)). The winery will include storage and so uses the caves as that storage. Id. The applicant’s submission states “Rhys Vineards is planning on developing a winery in three phases over the next decade. The first phase will be the construction of the caves for the storage of barrels of wine.” Id. The applicant goes on to describe the subsequent “phases” of constructing the winery and designing a tasting room (a vineyard has already been planted). Id. At no point does the applicant assert that the cave construction is an independent project that would be done for it’s own sake, but rather the applicant describes it as part of the overall winery project. At a meeting with the applicant’s architect, Chuck Peterson, he asserted that the applicant would not be considering caves on the property if wineries were not allowed by the zoning. (Meeting with Chuck Peterson, August 1, 2005).

The County has not analyzed the subsequent phases of this project, so we do not know what impact of the overall project will be. We recognize that the applicant has made several environmentally-responsible statements regarding their operation of the winery and vineyard. We applaud those statements, but until proper environmental analysis occurs and conditions placed on any future permits, we can find no security in statements that can be changed at the whim of the present or future landowners.

There are two alternative reasons for why the Board of Supervisors should consider the subsequent phases of this project to be one single project, and analyzed together as a single project. First, the County could decide that this is not a “judgment call,” that the only appropriate way to look at these phases is as a single project. In that case, the County must grant this appeal and require a full analysis of the whole project. Second, the County could decide that it is a “judgment call” or gray area as to whether this is a single or multiple projects. In that case, we argue it makes much more sense to consider the subsequent phases to be a single project, and the Supervisors should therefore judge it all to be one project, and grant the appeal.

The only appropriate analysis of the proposed phases is as a single project.

The applicant does not consider the caves to be separate from the subsequent winery, and no evidence in the record suggests otherwise. In fact, the Mid-Peninsula Regional Open Space District specifically objected to the segmentation of the project as one of several objections to the project, and unless we are missing part of the County’s response, the County never responded to this issue. In discussions with County staff, we were told the caves could have an independent utility from the planned future winery because the landowners could use them solely to store wine produced at their Woodside winery. While an interesting suggestion, it has no relation to what the landowners actually intend to do. It also does not make any economic sense – if the winery is not present at the same site as the caves, then all the caves represent is a highly inconvenient, relatively small (13,000 square feet) storage space. The landowners would have to harvest grapes from that property (located just two miles from the Skyline-Highway 9 intersection), truck the grapes all the way to Woodside in San Mateo County, process them into wine, truck the bottles all the way back up the hill to store them in the caves – and then transport the wine all the way back down to Woodside to sell it. None of this makes sense, as opposed to leasing appropriate storage space much closer to the Woodside winery.

We additionally note that the County Hillside Zoning requirements state that low-intensity “commercial, industrial and institutional uses may also be allowed if they require a remote, rural setting…” Absent an associated winery, the storage caves are merely a form of warehousing – there is no other special reason to construct the caves. Warehouses do not require a remote, rural setting, so the caves then should not be allowed.

The County cannot rely on some strained, imaginary purpose for the caves as an isolated storage spot miles away from where it is needed, where no reasonable person would make such use of the property, and one that contradicts the applicant’s own statements. This interpretation of when it is permissible to divide a project up in phases, if allowed, would permit segmentation limited only by people’s imagination. It should not be allowed.

As a matter of judgment, the County should consider the different phases of the winery to be a single project.

The question that the Board of Supervisors need to consider is whether it will result in better planning if it splits the analysis of the project, as proposed by County staff, or analyzes all phases at the same time. The applicant has stated they will need a grading permit for thousands of cubic yards of cut and fill for the winery construction. Granting such a permit is a discretionary decision by the County. The County could potentially deny the permit, a possibility we cannot rule out in part because no analysis has yet been done of the environmental effects of the winery. If this happens, the applicant will be left with exactly what they said they do not want – storage caves miles away from any winery. This outcome is not just a risk to the applicant but also to the public, because the applicant having made an investment in the caves will continue to press for approval, and use their cave investment as one reason.

The better planning approach is to handle the whole project at once. Combined impacts, such as all the construction impacts and traffic impacts, can then be considered together instead of piecemeal. If the County exercises its discretion to reject the project, the applicant would make decisions that are not based on investments already sunk into part of an already-constructed project.

For the above reasons, the County should grant this appeal. The County clearly needs to tighten its regulations on both vineyards and associated winery developments so that better regulation will happen. Again this is not to oppose all new vineyards and wineries, but only to call for better regulation. We suggest the County investigate the regulations and protections here as opposed to neighboring counties, and regulations in Napa and Sonoma counties.

Please contact us if you have any questions.

Sincerely,

Brian A. Schmidt
Legislative Advocate, Santa Clara County

The Mercury News and The PInnacle report on potential tax fraud issue raised by CGF

The news coverage continues on the issue CGF raised with the County District Attorney: potential tax fraud committed at the illegally-built Institute Golf Course in Morgan Hill, drawing subsidies for an "agricultural" tax break that it does not deserve.

See The Pinnacle News for their report, and The Mercury News as well (Morgan Hill Times also covered the story but a subscription is needed to view it online). Hopefully this story will continue to develop.

-Brian

Letter to the Regional Water Board on impervious surfaces

CGF received a grant from the Santa Clara Valley Water District to analyze the need under the California Environmental Quality Act to monitor cumulative impacts from impervious surfaces. Meanwhile, the San Francisco Bay Regional Water Board is considering similar issues under different laws that regulate water quality. Below is a letter we sent today asking for improved monitoring, which will take us well on the way towards getting improved mitigation.

-Brian
---------

August 1, 2005

Mr. Bruce H. Wolfe
Executive Officer
Regional Water Quality Control Board
1515 Clay Street, Suite 1400
Oakland, CA 94612

Dear Mr. Wolfe,

The Committee for Green Foothills believes that the success of the stormwater program as it currently exists and as it could improve in the future relies upon an effective program to monitor changes in impervious surface. We write you today to request that the Regional Board take the necessary action to clarify the monitoring requirements of all the existing stormwater programs in the Bay Area.

The essential elements of an effective monitoring program would be:

1. Annual reporting on the increase and decrease in impervious surface in each community, the volume of stormwater detention storage provided and an estimate of the degree to which this storage would provide detention for the 2 year, the 10 year and the 50 year storm. The data should be in spreadsheet/database and report format that identify the type of development, the status under the permit (i.e. exempt, subject only to treatment requirements,etc) and the watershed to which each development is tributary.

2. A report on developments over 5 acres approved by each municipality, the amount of impervious surface added or reduced by the development, the volume of stormwater storage/detention provided, an estimate of whether this storage will contain the 2 year, the 10 year and the 50 year storm. the the percentage of the increase for which the 2 year, the 10 year and the 50 year storm are being captured by flow detention facilities. This report should be quarterly during the first two years of the permit and annually thereafter in order to assure that the program is being effectively implemented during the startup period.

The quarterly report should be due 45 days after the end of each quarter and the annual report should be submitted with the regular Annual Report for the Stormwater Program.

We would appreciate your thoughtful consideration to this proposal. This request is substantially similar to a suggestion I made in oral comments at the July 20, 2005 meeting. In a sidebar conversation I had Board Chairman Muller at the meeting, he said he would request that you respond to my suggestion. I hope you can do so by replying to this letter.

Please contact me if you have any questions.

Sincerely,


Brian A. Schmidt
Legislative Advocate, Santa Clara County

Listen to KLIV 1590 this weekend for Institute golf course coverage

I just did a brief radio interview with KLIV 1590 AM radio about the golf course issue. It will get aired this weekend starting late morning/early afternoon at 20 minutes and 50 minutes past the hour, and may also get aired this evening.

By the way, I'll mention some good things about KLIV - they give the best radio news coverage for South Bay issues that I've followed, as well as traffic condition reports that focus much more closely on the South Bay.

-Brian

CGF uncovers the violation of the Williamson Act on Morgan Hill Golf Course

(A note here from your regular blogger, Brian - CGF welcomes a new guest blogger and new CGF volunteer, Anagha Patil. Anagha has summarized the potential tax fraud problems at the Math Institute Golf Course below. For more information, see our press release, our letter to the District Attorney's office, and the first news article about this issue, from the Gilroy Dispatch.

I'll briefly note that views of guest bloggers are their own, and not necessarily those of the Committee for Green Foothills. With that aside, we welcome you, Anagha!)
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CGF has formally requested the Santa Clara County District Attorney to investigate potential civil and criminal tax fraud violations associated with the controversial Morgan Hill Golf Course constructed illegally as part of the planned American Institute of Mathematics Conference Center. The illegal private golf course vastly expanded from the initial 40 acre to now 192 acres without appropriate environmental permits or review, violating a number of federal, state and local environmental regulations.

In a letter to the District Attorney, CGF Legislative Advocate Brian Schmidt outlines arguments that the landowners have for some time violated a State contract that requires preservation of agricultural and open space uses on the property. The letter further describes that because of this contract violation, the landowners may be committing tax fraud that could cost state and local governments thousands of dollars a year in lost revenues.

Four of the five parcels operated by the American Institute of Mathematics (AIM) have been under California’s Williamson Act since 1969 to preserve it as open space or to use for agricultural purposes in return for the enjoyment of huge tax breaks. But the Institute has flouted these laws and is effectively benefiting from a tax payer subsidy only to channelize those funds to finance an illegal private Golf Course.

John Fry of Fry’s Electronics, one of the principals behind AIM, has continued to use and maintain the golf course despite the threat to local water supplies and serious environmental impacts including loss of habitat for endangered species and wildlife as well as threats to surface and groundwater from unpermitted course’s fertilizer and pesticide. The officials of the Math Institute still maintained that the Williamson Act allows a golf course as a compatible open space use, an assertion contradicted by both the Santa Clara County officials and by the staff at the State Department of Conservation. The environmental impacts were all well documented by the city’s Draft Environmental Impact Report for the Golf Course prepared by the City of Morgan Hill long back.

After the hue and cry raised over the illegal Golf Course with the Williamson Act in perspective, Morgan Hill officials initially concluded that cancellation of the contract and payment of appropriate fees would reduce the impacts to a “Less than Significant” level. The City then failed to take this insufficient step, requiring only a “non-renewal notice” that would exempt AIM from the required fee.

AIM should cough up for all those years of default and environmental degradation. The Institute officials on their part have ignored the City’s orders to begin rectifying the situation by filing for a non-renewal notice – a notice that would end the contract after nine years from the non-renewal notice

AIM’s failure to file for non-renewal of the contract and its continued acceptance of a tax reduction to which it is not entitled indicates that tax fraud may be occurring.

-Anagha Patil

A step forward for the Coast

It’s not often that the folks in Washington, DC take action on something specific to CGF territory, but this happened yesterday when the Senate passed a bill sponsored by Senator Diane Feinstein that would add the Rancho Corral de Tierra property to the Golden Gate National Recreation Area, part of the National Parks Service.

CGF has defended this stunning land, more than 4,000 acres around Moss Beach and Montara on the San Mateo County Coast, for decades. Several years ago, in a huge win for the environment, POST purchased the property.

If the House is able to pass a similar bill and the President signs off, POST will sell these lands at half-price to the GGNRA, thus protecting these lands in the public domain.

More details are in today’s San Mateo Times article.

- Kathy

Mark Weinberger

Mark Weinberger, one of the founders of the environmental law firm that has represented Committee for Green Foothills for many years, passed away last week after a battle with leukemia. Shute Mihaly & Weinberger is a unique law firm representing the "non-developers" on environmental issues - the nonprofits and governmental agencies - and Mark was a champion for the environment.

His obituary is here, and his biography at the law firm is here.

On a personal note, Mark was a Stanford alumn and therefore responsible for many of the initial interviews of Stanford law students, and one of the people involved in hiring me at the firm when I had just graduated from law school. That connection to CGF's law firm resulted ultimately in my being hired by CGF to be its Santa Clara County Legislative Advocate. Mark was a wonderful and very warm person, and will be sorely missed.

-Brian

Comments on the preparation of a Draft Environmental Impact Report for Coyote Valley

San Jose has solicited comments on what it should study when developing an Environmental Impact Report for Coyote Valley. We submitted the following comments. While saying what the City should study, we continue to oppose this environmentally-destructive project.

-Brian

--------

Darryl Boyd
Department of Planning Building and Code Enforcement

City of San Jose
801 N. First St., Rm 400

San Jose CA 95110-1795

Re: Comments on the Coyote Valley NOP

Dear Mr. Boyd,

The Committee for Green Foothills submits the following comments on the NOP for the Coyote Valley Environmental Impact Report:

· We reaffirm our March 4, 2005 letter to San Jose regarding Coyote Valley (attached), and we request that the DEIR address the letter’s concerns.

· Current development “triggers” found in the San Jose General Plan that restrict residential development in San Jose must be included as part of the environmental baseline for assessing the project’s impacts.

· Any changes to development triggers that function as replacements, in whole or in part, of these triggers must be analyzed in the DEIR. Analyzing changed triggers separately would constitute improper segmentation of the project.

· In light of the California Supreme Court’s depublication of Friends of the Kangaroo Rat v. California Dept. of Corrections (2003) 111 Cal.App.4th 1400, the City should consider agricultural preservation as a feasible mitigation for the loss of agricultural land. Preservation should be at least at a one-acre-for-one-acre ratio. Preservation in Coyote Valley Greenbelt is preferable, but preserving farmlands in other areas of Santa Clara County should also be considered for purposes of determining feasible mitigation.

· For purposes of examining the project’s effect on housing demand, the number of employed residents per residence should be determined based on the size of anticipated residences, not simply a County-wide or City-wide average that reflect larger residences than will be found in Coyote Valley.

· The NOP referenced 3,000 additional jobs will be expected beyond the 50,000 figure for retail and government support work. This contrasts with the City’s own transportation consultant, who had stated at a Coyote Valley Technical Advisory Committee meeting in 2004 that the 50,000 jobs would produce an additional 17% more support jobs. The DEIR should address which of these two figures is correct and give the reasons why, for purposes of determining housing demand.

· The DEIR should identify the amount secondary jobs created outside of Coyote Valley as a result of the business brought to the area at buildout, for purposes of identifying housing demand created by the project.

· The DEIR should consider the net effect of other development projects on housing demand, and specifically address the housing demand concerns expressed in our December 20, 2004 letter (attached).

· The DEIR should address growth inducing and cumulative impacts from the project, especially in relation to the net increase in housing demand from the 50,000 jobs, whatever number that is correct for retail and government jobs, and the secondary jobs created outside of Coyote Valley. This analysis should extend beyond San Jose to all of Santa Clara County, as well as all neighboring counties and to Monterey County.

· The DEIR should address the effect of nitrogen deposition on nearby serpentine soils habitat from development in Coyote Valley, including that coming from increased congestion on Highway 101.

· The DEIR should address how it will conform to the planned County-wide HCP. We suggest a mitigation statement to the effect that “all aspects of the CVSP are subject to change based on the requirements of the forthcoming County-wide HCP.” The DEIR should justify any statement of conformance to the future HCP that is less sweeping.

· The DEIR should examine the feasibilility of an east-west wildlife migration corridor in the vicinity of the North Coyote area and Tulare Hill, as a mitigation for impacts to wildlife. This examination should include the elimination or relocation of the athletic fields north of Tulare Hill.

· The DEIR should address a wider floodplain for Fisher Creek as an alternative flood storage mechanism than the proposed Coyote Valley Lake, as well as consideration for mitigation of various biological impacts.

· The DEIR should address an empty greenfield as an alternative to the Coyote Valley Lake for flood-control purposes. This greenfield was described by City consultants in early CVSP Task Force meetings.

· The DEIR should address potential spread of perchlorate contamination as it might affect water supplies.

Please contact me if you have any questions.

Sincerely,

Brian A. Schmidt

Legislative Advocate, Santa Clara County

Closer to us than he thinks

Believe it or not, we can't say that everyone is a fan of our work. We recently received this email from someone in Santa Clara County:

Founders, Members, and supporters of GreenFoothills.org:

How do we enlighten seemingly intelligent group of people that oppose developing the hillsides, and that are destroying the farmland which we need to feed our children.

Hills are made for houses. Flat land is for crops.

Wake up dummies.

Unfortunately, when you wake up, you will still be dumb. Stupid is what stupid does. Your deeds show the need for improvement.


So we sent him this response:

Dear Mr. ___,

We actually agree with you on the need for saving croplands. If you talk to old-timers around here, they'll tell you that Central Valley was considered "second-rate" for agricultural quality - for the best produce, you would buy from Santa Clara Valley. We are specifically working to save flatland farms from being converted to suburbia in Morgan Hill, Coyote Valley, and the Gilroy area.

We don't see hillsides as viable areas to put large amounts of housing that would do anything to help the housing crisis in the area. Splattering the hillsides with monster mansions for small numbers of people instead would simply harm the environment, drain tax revenues for providing expensive services to rural areas, and disrupt cattle ranching.

I hope this is helpful, and at the least, you'll support efforts to preserve flatland farming in Santa Clara County.

Best regards,
Brian Schmidt

I don't know if our response will soften his opposition to us, but maybe it will help generate support for preserving farmlands. It's okay with me if people don't like us, so long as they do the right thing.

-Brian

Preserving our night skies

CGF works to preserve open space and natural resources in Santa Clara and San Mateo counties, and one of those natural resources is a dark sky that gives people a chance to look up at night and see something besides a light-polluted haze.

News over the holidays covered the spectacular Deep Impact spacecraft hitting a comet - pictures of the impact came from a flyby spacecraft and massive telescopes in space and on the ground. They also came from Monte Bello Open Space Preserve here in Santa Clara County, where an amateur astronomer had a sufficiently-dark sky to put together a film of the impact. Just one more reason to stop sprawl and see the stars.

(Just for comparison, the first article I wrote for CGF was about camping at Monte Bello and enjoying the "dark quiet of open space.")

-Brian

Great news for the Santa Clara County Open Space Authority

The Santa Clara County Open Space Authority won a court case for the second time over its right to collect and expend money for open space preservation. Groups claiming to represent taxpayers argued that the OSA had not followed proper procedures under Proposition 218. The OSA won at the trial level, and won again yesterday following an appeal by the opposing groups to the 6th District Court of Appeal.

It's not clear yet whether this decision will be appealed to the California Supreme Court, nor whether the Supreme Court would accept an appeal if one were made. The Supreme Court is more likely to take cases when lower court rulings are in conflict, but no such conflict currently exists.

Assuming no appeal occurs or that the Supreme Court declines the case, then the OSA will have nearly tripled its spending authority. This is great news for open space preservation and for public access.

You can read the decision here (Silcon Valley Taxpayers v. Santa Clara Cty., dated July 6, 2005)

-Brian

Open issues for land use in Santa Clara County

Last week the Santa Clara County Supervisors deferred action on a 17-lot subdivision in the hills above Milpitas (our comments on the proposal are here). A large part of the controversy over this proposal stemmed from concerns neighbors have over water use. I suggested the Supervisors discuss the issue of water scarcity at their upcoming land use workshop.

Several other things need further work by the County:

*mitigating the environmental effects of greenhouse gas emissions. Currently, the County does nothing about this, because the Air Board has no regulations. The County can't defer to the absence of regulations; it has to figure out for itself what it needs to do. This is a potential opportunity - requiring new developments that waste energy to pay into public transportation funding or energy conservation can mitigate the developers' impacts and provide a benefit to the County.

*protecting wetlands that are not protected by the Clean Water Act. The CWA fails to protect certain wetlands because the federal government's jurisdiction is limited, not because the unprotected wetlands are unimportant. This is like the greenhouse gas problem - because some other agency fails to tell the County what to do, the County does nothing. That is unsatisfactory.

*ending process problems, like County staff making decisions on whether Negative Declarations are adequate when such decisions should be made by the Planning Commission, and scheduling public hearings weeks before written comments are due (which guarantees that the oral comments will not be substantive).

*managing land under conservation easements. Some arrangement should be worked out with the Open Space Authority and MROSD over conservation easements; those agencies are much more involved in these issues than the County is.

I'm sure there's more possibilities - plenty for the County to work on.

-Brian

More evidence of a housing bubble

As the reporting of a housing bubble escalates, I thought I'd go back and find the post we did October 11 last year on how it could affect our work.

(I suspect we may need to revisit this again in the near future)
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Economic disaster: environmental aspects of surviving a housing bubble
(The following is a "thought-piece" originally intended to be part of an article in the forthcoming newsletter, but we decided it didn't quite fit. We hope it's an interesting read here. More good stuff to come in the Fall 2004 newsletter...

-Brian)

No one has difficulty identifying a speculative financial bubble – with hindsight. Dot-com businesses and Japanese real estate were valued not for their actual worth but for the belief that others would consistently pay more for the same thing. In each case, the sky-high prices had to collapse. Identifying a bubble before it bursts is much harder. Economic experts are split over whether the constant rise in real estate values in the Bay Area or elsewhere constitute a speculative bubble. Not being economic experts, we cannot make any firm conclusions except that it is possible that a housing bubble exists, and that we should be prepared for the possibility that real estate prices could collapse.

Imagine a drastic scenario - what would a fifty-percent collapse in housing prices do the environment and to our work in the Bay Area? As to the environment, the price collapse would certainly reduce much of the pressure to build sprawling hillside housing, pressure that results from the tremendous profits developers can make at current prices. On the other hand, we can expect developers to argue that environmental regulations that were affordable for high-priced markets are no longer affordable, and should therefore be dropped. We should oppose any effort to allow permanent sprawl on the basis of a temporary drop in prices.

While the environment may not be harmed, our own work in protecting the environment could be drastically affected by a collapse in housing prices. As a local nonprofit, we depend on local donors, who in turn fund us based on their own financial situations. If people see the market value of their homes cut in half, they will feel much less able to give generously. A widespread collapse in housing prices could even trigger a recession, further constricting financial donations. This situation will require tremendous effort by environmental organizations and by their supporters to make their way through the financial difficulties, and continue to do their work.

Preparation and improvisation combine to form the basis of any response to disasters. Preparing for this and other disasters, is part of the work we will continue to do in order to protect the environment.

Court: Coastal Commission is constitutional

The state Supreme Court has ruled that the California Coastal Commission is lawful, and that its previous decisions should stand. The Commission was challenged in court by those who wished to end the group’s excellent work to protect our coast and who claimed that the method of appointing commissioners was unconstitutional.

The ruling, which was unanimous, says that the Commission’s appointment process doesn’t violate the “separation of powers doctrine.”

For more info, read the story in today’s SF Chronicle.

Our almost-off-the-press Summer 2005 Green Footnotes newsletter includes a couple of articles describing how the Coastal Commission works and underscoring the importance of ethics among Commissioners.

If you’re not on the CGF mailing list and would like a copy, let us know. The articles will be posted to our website within the next week or so.

- Kathy

Letter from a CGF member about Coyote Valley

I really liked this email from CGF member (and CGF Board Member!) Jeff Segall sent to the City of San Jose on behalf of himself and his wife, so with his permission, it's reproduced here.

-Brian
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Dear Members of the Coyote Valley Specific Plan Task Force,

I have great concerns that in some ill-considered haste to develop the Coyote Valley, the City of San Jose may be abandoning good planning principles put in place to insure that the development there does not come at the expense of the city's finances and existing economic zones such as downtown and North First Street. Currently, there is a tremendous oversupply of commercial office/industrial space in San Jose, and in the entire area, and this oversupply has existed for years. It defies logic to believe that any new office/industrial development will not lead to even longer times for the oversupply of this space in downtown and North First to abate. This will directly negatively impact these vital areas.

More generally, it is not hard to read the April 28, 2005 memo, "CVSP Timing and Logistical Requirements Discussion" as an attempt to abandon sound planning principles in favor of the good old fashioned sprawl development. Phrases like "phasing by the willing", "letting the market dictate", "sub-regions are not required to have geographic continuity", "the plan should allow General Plan budget triggers to be changed" are very troubling to anyone committed to careful land use planning.

In conclusion, I ask that the planners be directed to evaluate development needs citywide (particularly downtown and in the North First Street area) before committing to the development of Coyote Valley; and the city council should adhere to and strengthen the "development triggers" that are required by the General Plan, ensuring that development occurs first in central San Jose, that the City is fiscally ready for this development, and that the City actually needs this development.

Thank you for consideration of my comments.


Sincerely,


Jeff and Meridith Segall

Coyote Valley, China

Yesterday's Washington Post had a really interesting article on a land use battle between farmers and industry in China. Just when I think we've got it tough here, I see how much worse it can be in a place without even the trappings of democracy.

-Brian

Ritz to remove illegal seawall

For years now, the bluff below the Ritz Carlton hotel in Half Moon Bay has been supported by an illegal 270-foot-long seawall, created by riprap (hunks of granite) placed in an attempt to keep the green for the golf course's vaunted 18th hole from eroding into the Pacific.

As Coastsider.com reports, Ocean Colony Partners has not only withdrawn their application for an after-the-fact permit for a seawall (fought vociferously by CGF and others) but also agreed to remove all the rip-rap rocks (placed without permits) from the face of the bluff and move the green away from the coastline, allowing natural erosion to continue.

The excellent documentary film Coastal Clash covers the controversial issue of seawalls quite well: they simply displace erosion, and cause plenty of other problems elsewhere.

-Kathy

Anti-sprawl comics

Designed for Washington State, but very relevant here. Take a look!

(Thanks Michelle from Greenbelt Alliance for the tip!)
-Brian

Impervious surface presentation

Here are the notes for today's presentation to the San Francisquito Creek Watershed Council on the cumulative impacts of impervious surfaces in Santa Clara County, a project we are researching with great help of a grant from the Santa Clara Valley Water District.

-Brian

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Impervious Surfaces, Cumulative Impacts, and Divergence Between NPDES and CEQA Requirements

The Problem and Two-staged Solution

The Problem: CEQA requires more extensive consideration of cumulative impacts than NPDES C.3 provisions. There are (almost) no exceptions to CEQA requirements to consider cumulative impacts from impervious surfaces, while NPDES C.3 requirements focus on larger projects, and don’t consider smaller projects.

Why Now? State-issued CEQA Guidelines were changed last fall in two ways: first, they increased the emphasis and the possibility that small impacts should be considered cumulatively significant. Second, they removed the possibility that simple compliance with other regulatory standards like NPDES would, without more, constitute CEQA compliance. These Guidelines were changed in reaction to successful lawsuits by environmental groups two years ago. Local agencies may not have changed their CEQA compliance to reflect the new guidelines.

Specific Area of Divergence – the HMP. The Hydromodification Management Plan examines how large impervious surface projects (one acre or more) could alter stream flows so as to increase erosion, and prohibits them from increasing erosion for less-than 10 year storm events. A complete “no impact” requirement would eliminate the divergence, but the HMP’s failure to cover small projects and 10-year-or-greater flood events leave open potential un-analyzed and unmitigated cumulative impacts.

Specific Area of Divergence – Water Quality. To treat water quality problems from impervious surfaces, NPDES C.3 provisions require medium and large projects (10,000 square feet or more of impervious surface to capture 80% of the annual runoff, or to treat 10% of the 50-year peak flow rate. This has a similar problem as the HMP – smaller projects are not mitigated, nor are all the impacts from the larger projects mitigated.

Specific Area of Divergence – Other Environmental Impacts. Increased impervious surface eliminates habitat and biomass, and increases the urban heat island effect, and none of these impacts are analyzed, and may not be mitigated by the NPDES provisions. Difficult to analyze.

Where Divergence May Occur – Map. Watersheds draining to hardened channels and tidal areas only have no HMP divergence (but possible water quality impacts). All other areas have at least the potential for unalyzed, cumulative impacts. Areas with the highest percentage of existing impervious surface and the highest percentage of existing buildout are the least likely to have cumulative impacts.

Summary of the Problem – NPDES analyzes and eliminates some but not all cumulative impacts. Local agencies must analyze the remaining impacts, and where feasible, mitigate them.

Two-Stage Solution – First Stage, Complete the Missing Analysis. Examining the “trend line” in impervious surface coverage will indicate potential cumulative effects from impervious surfaces. An upward trend line suggests a potential problem. The data is readily available from compliance with C.3 provisions, from EIRs, Negative Declarations, and from building permits.

Analysis Gap – Trend Line Suggests But Does Not Completely Prove a Cumulative Impact. If the project in question does not have an EIR, however, the reasonable inference of a potential impact requires preparation of an EIR.

Second Stage of the Solution – Assume a Cumulative Impact and Fully Mitigate It.
1. Reduce the Impervious Coverage
2. Change from Impervious to Permeable Cement/Pavement/Concrete
3. Pay Into a Fund for Offsite Mitigation

Problems with our approach:
1. Incorporation of available science.
2. Nuts and bolts of tracking the data.