Comments submitted to LAFCO about Morgan Hill expansion and Coyote Valley

(Normally I don't write out my speaker comments in advance, preferring a more natural speaking style and the ability to react to other commenters and new information. Yesterday though, I wrote out my comments to the Santa Clara County LAFCO regarding the unwarranted Morgan Hill USA expansion. The comments are below (although I also adlibbed some changes). -Brian)

Good afternoon, Brian Schmidt from the Committee for Green Foothills. I would like to put all our cards on the table for this agenda item: we seriously considered suing LAFCO over its decision to approve the Blackrock project based on documentation that LAFCO’s own staff report said is inadequate, a problem that I pointed out to the Commission just immediately before approval was granted.

However, we’re not going to sue in this case. We ask you to reconsider your decision, not because of an implicit threat – there is none – but only because it’s the right thing to do.

Actually, there are two things to do – one is about this project, but the more important one is about Coyote Valley, where the exact same mistake is currently in motion.

On Black Rock, you have several reasons for reversing your earlier decision, and either denying approval or requiring additional documentation. Our attorney’s letter lays out why the lack of consultation with LAFCO gives the Commission the authority to become lead agency. The Morgan Hill City staff opposed the decision to request expansion and were overruled by their City Council on a split vote, something that I expect wasn’t known by the Commission. You can verify that with your staff. There are also about ten acres of farmed land literally across the street from Blackrock, land that undoubtedly will be lost to sprawl because of LAFCO’s decision. Some of that land may not meet the soils definition of farmland, but because it’s planted in grapes, I’m sure it would satisfy a revenues definition.

Given my three-minute time limitation, I’d be happy to answer any questions about the various assertions in the staff report and by the Blackrock attorneys, but none of them are valid reasons for standing by a wrong decision. While I understand that staff is not recommending reconsideration, I suggest that if you do think reconsideration is advisable, you ask LAFCO Counsel to advise you as to whether you have the independent authority to reconsider, a different question than whether they recommend that you reconsider.

Finally, this same problem is in process for Coyote Valley, where it threatens 3,000 acres instead of Blackrock’s 18 acres. They plan to use the vague and subjective LESA process, apparently after the project has undergone approval and have not even defined a preservation ratio, something worse than Morgan Hill’s action. While the Committee for Green Foothills would like reconsideration and denial of the Blackrock USA expansion, it is still more important that LAFCO avoid the identical problem in Coyote Valley by demanding recirculation of a Draft EIR that meets adequate environmental standards, and if this is not done, then by litigating over the failure to do an adequate analysis, becoming lead agency for USA expansion purposes, or denying the USA expansion outright.

Mercury News publishes CGF Op-Ed on Coyote Valley

I'm happy to report that the Mercury News has published the Op-Ed I wrote on behalf of CGF regarding why developing Coyote Valley is an environmental disaster. The link to the Mercury News online version is here, and is reproduced here on our website.

By the way, the print edition of the article mentions my affiliation with Committee for Green Foothills, and also has an excellent, enlarged excerpt:

Coyote Valley developers have now resorted to lame suggestions that destroying farmland actually helps the environment.

We've been heavily involved on Coyote Valley issues. We did a major Action Alert last year, we've written many articles in our newsletter, and you'll find Coyote Valley news all over our website. We remain heavily involved, especially in preparing comments on the Draft Environmental Impact Report that are due at the end of June.

-Brian

CGF letter to LAFCo and Morgan Hill about CEQA non-compliance and the loss of prime farmland

(Below is a letter that one of CGF's outside attorneys, Paul Carroll, wrote to the Santa Clara County LAFCO agency when it approved Morgan Hill's expansion based on a Negative Declaration stating that no significant impacts to farmland could occur, when LAFCO's own staff said such impacts had in fact occurred. -Brian)

April 20, 2007

Neelima Palacherla, Executive Officer
Local Agency Formation Commission of Santa Clara County
70 West Hedding Street, 11^th Floor, East Wing

San Jose, CA 95110

Re: Morgan Hill’s Mitigated Negative Declaration for the Urban Limit Line/Greenbelt Study General Plan Amendment and Related Actions

Dear Ms. Palacherla

I represent the Committee for Green Foothills and write regarding the above-referenced project.

On April 4, 2007, the Local Agency Formation Commission of Santa Clara County (LAFCO) approved the project despite its conclusion that the mitigated negative declaration was flawed under the California Environmental Quality Act (CEQA). A negative declaration is improper if there is a fair argument that the project may have a significant adverse impact on the environment. LAFCO’s April 4, 2007, staff memo provides the requisite fair argument, namely that the project will destroy prime agricultural land.

The Committee contends that LAFCO was required to do one of three things when presented with the inadequate negative declaration. It could have assumed the role of lead agency and prepared an EIR based on the City’s failure to consult; it could have assumed the role of lead agency and prepared a supplemental EIR based on new information; or it could have denied the project because it is contrary to LAFCO policy.

In this letter, I will show how the negative declaration violated CEQA, and why LAFCO must prepare an EIR or deny approval of the project.

LAFCO’s Approval of the Negative Declaration Was Improper under CEQA

The threshold for an EIR is well established. An EIR must be prepared whenever “there is substantial evidence that any aspect of the project, either individually or cumulatively, may cause a significant effect on the environment.” (Guidelines, § 15063, subd. (b)(1); accord Pub. Res. Code, § 21100, subd. (a); § 15002, subd. (f)(1), (2); County Sanitation District No. 2 v. County of Kern (2005) 127 Cal.App.4^th 1544.) “May” means a reasonable possibility. (§§ 21082.2, subd. (d); 21100, subd. (a); 21151, subd. (a); League for Protection of Oakland’s Architectural Resources v. City of Oakland (1997) 52 Cal.App.4th 896, 904-905.)

If substantial evidence supports the existence of a fair argument, an EIR must be prepared, even if the record contains substantial evidence to the contrary. (Guidelines, § 15064, subd. (f)(1); Pocket Protectors v. City of Sacramento (2005) 124 Cal.App.4^th 903, 930-931; League for Protection of Oakland’s Architectural Resources, supra, 52 Cal.App.4th at pp. 904-905.) In short, if a fair argument is made, “it cannot be overcome by substantial evidence to the contrary.” (Architectural Heritage Assn. v. County of Monterey (2004) 122 Cal.App.4th 1095, 1110.) “Substantial evidence” means “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (Guidelines, § 15384, subd. (a).)

The fair argument standard is thus deemed a “low threshold” for the preparation of an EIR. (E.g., Pocket Protectors, supra, 124 Cal.App.4^th at p. 928; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 84.) The “low threshold…reflects a preference for resolving doubts in favor of environmental review” and EIR preparation. (Architectural Heritage Assn., supra, 122 Cal.App.4th at p. 1110.)

Under these principles, LAFCO’s approval of the negative declaration was improper under CEQA. There is substantial evidence in the record that the project may have a significant adverse or cumulative impact on the environment. Notably, this evidence was provided by LAFCO itself. LAFCO staff concluded:

The project site consists of Class 1 soils and is considered prime agricultural land based on the definition of prime agricultural lands in the Cotese Knox Hertzberg Act. However, the City, using the LESA model, determined that the conversion of the agricultural land at the project site is less than significant. LAFCO staff and other stakeholders have expressed many concerns, over the last few months, about the use of the Land Evaluation Site Assessment Model (LESA) in determining impacts to agricultural resources in Santa Clara County. (April 4, 2007, LAFCO memorandum from Dunia Noel to Neelima Palacherla.)

This information satisfies the fair argument standard. The project site comprises prime agricultural land according to criteria set forth in the Cotese Knox Hertzberg Act. The fact that the City used a different definition that excluded the land as prime is irrelevant—especially given LAFCO staff’s criticism of the City’s criteria.[1]

Moreover, LAFCO is not free to ignore evidence that its staff generated. In Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, the County approved a negative declaration for a proposed golf course and related facilities. Petitioner sued claiming that the record contained substantial evidence that the project might spur development and have a growth-inducing effect. (Id. at p. 153.) Much of that evidence was found in the planning department’s initial study. (Id. at p. 153.) The County revised the initial study and approved the negative declaration, deferring consideration of growth-inducing impacts until development was actually proposed. (Id. at p. 153.) On appeal, the County and real party argued that the first initial study was without effect, having been superseded by the second, and that planning staff were not qualified to opine on the project’s potential impacts. (Id. at pp. 154-155.) The court of appeal rejected both arguments. It held that the planning staff were obviously qualified to render an opinion on impacts, and that the County’s approval of the negative declaration based on the revised initial study could not eliminate the substantial evidence contained in the first initial study. (Ibid.)

So it is here. LAFCO cannot ignore its staff’s conclusion that the project will destroy prime agricultural land. Since the mitigated negative declaration contains substantial evidence that the project may have an adverse impact, LAFCO’s approval of the project was contrary to CEQA.

LAFCO Must Prepare an EIR

The City approved the project and adopted the negative declaration on April 19, 2006. Accordingly, the statute of limitations for a challenge to the City’s decision has expired. When this occurs, a responsible agency confronted with a flawed negative declaration has several, limited options, two of which apply here. (CEQA Guidelines, § 15052, subd. (a)(1)-(3).)

First, a responsible agency “shall assume the role of lead agency” and prepare an EIR when the lead agency prepared an inadequate negative declaration without consulting with the responsible agency, and the statute of limitations has expired for a challenge to the lead agency’s approval. (CEQA Guidelines, § 15052, subd. (a)(3).) That occurred here.

According to the LAFCO staff report, the City failed to consult with LAFCO regarding the City’s conclusion that the project would not adversely impact prime agricultural land until well after the City’s April 19, 2007, approval of the project and adoption of the negative declaration:

Based on the above mitigation measures adopted by the City on April 19, 2006, the City appears to have deferred final analysis of agricultural resource impacts and consideration of potential mitigation measures to sometime after the adoption of the Mitigated Negative Declaration. Specifically, the City deferred their analysis until November 2006 and LAFCO did not receive a copy of that analysis until receiving the City’s recent application for an urban service area amendment. [¶]...[¶] Furthermore, this deferral process did not allow LAFCO, other responsible agencies, or the public the opportunity to comment on whether the City’s analysis of agricultural impacts and mitigation measures was adequate or consistent with their respective agency’s policies. LAFCO staff believes that all analysis of impacts to agricultural resources and mitigation measures should have been included within the Mitigated Negative Declaration adopted by the City in April 2006. (April 4, 2007, LAFCO memorandum from Dunia Noel to Neelima Palacherla.)

In short, the City failed to apprise LAFCO of its conclusion that the land was not prime until long after the statute of limitations had run. Under these circumstances, LAFCO is obligated to act as the lead agency and prepare an EIR for the project. (CEQA Guidelines, § 15052, subd. (a)(3).)

The Guidelines dictate a second course of action that LAFCO can take. A responsible agency “shall assume the role of lead agency” and prepare an EIR when new information that the project will have a significant impact, which was not known and could not have been known when the negative declaration was adopted by the lead agency, becomes known after the statute of limitations has run. (CEQA Guidelines, §§ 15052, subd. (a)(2), 15162, subd. (a)(3).) That too occurred here.

According to the LAFCO staff report, LAFCO did not learn that the City had concluded that the land was not prime until well after the statute of limitations had run. The City’s conclusion is new information: It was not known when the City approved the project, since the City had deferred its analysis. And the new information shows that the project will have a significant impact on the environment, the elimination of prime agricultural land.[2] (CEQA Guidelines, § 15162, subd. (a)(3)(A).)

In sum, LAFCO’s approval of the project was improper under CEQA. Given the flaws in the negative declaration, LAFCO should prepare an EIR as required by subdivisions (a)(2) or (a)(3) of Guideline 15052.

LAFCO’s third option, of course, is to reconsider and deny approval of the project, which would not require additional CEQA review.

Thank you for your consideration of this letter. Please let me know as soon as possible how LAFCO intends to proceed.

Very truly yours,
Paul V. Carroll

cc: City of Morgan Hill

Black Rock LLC

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[1] Even under the City’s criteria, the site missed being characterized as prime agricultural land by a half a point. (See PMC’s November 15, 2006, Agricultural Land Evaluation for Black Rock Property.)

[2] It is well to note that the City’s failure to consult LAFCO had been an ongoing problem that LAFCO raised in its letters to the City of March 15, 2006, and March 28, 2006. Indeed, the City did not even notify LAFCO of the availability of the Draft Mitigated Negative Declaration. LAFCO happened to learn of its existence when it received a copy of a comment letter from the Santa Clara County Planning Office. (March 15, 2006, LAFCO letter to City.)

San Jose makes the right decision on the Evergreen project

Following up on our Action Alert, I'm glad to report that San Jose has decided to defer action on Evergreen development until it has revised the City's General Plan. See the Mercury News:

The San Jose City Council rejected a proposal Tuesday night to build homes on land set aside for future industrial growth in the city's Evergreen district and voted to require industrial development before housing in the surrounding area.

The proposal involves the loss of open space and especially of burrowing owl habitat and would have set a bad precedent for Coyote Valley. We're glad the City Council voted the way they did.

-Brian

CGF Action Alert: Protect Open Space and Stop Bad Planning in San Jose's Evergreen District!

(This may also be published on our Action Alert page, but in the interest of time, I'm putting it here on the blog as well. -Brian)
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At their meeting on Tuesday, May 15, the San Jose City Council will decide whether to approve an updated Specific Plan for the Evergreen District that relies on an outdated City General Plan, has numerous environmental impacts, and could harm efforts to slow the developers’ land rush in Coyote Valley.

Please join us in asking the City Council to defer a major update of the Evergreen Specific Plan until after the City General Plan has been revised.

What's Happening:

Developers in east San Jose are proposing conversion of 500 acres of land to housing that is now mostly designated for industrial and commercial purposes. Currently, housing makes more money for developers, but less money for the City’s coffers. The City is considering going along with this proposal, despite the fact that San Jose uses the lack of space for commercial and industrial uses in the city as an excuse to sprawl into Coyote Valley, destroying farmland forever.

Although on a smaller scale than Coyote Valley, the Evergreen proposal will have similar impacts on traffic and air quality. Of particular concern is the 50-acres of prime farmland and a smaller amount of burrowing owl habitat that will be lost. Developers have opposed doing environmental mitigation to compensate for the lost farmland and owl habitat. They did not want to meet the standard that the City proposes for Coyote Valley, a standard that is itself insufficient.

San Jose has not revised its General Plan since 1994, and is now starting a revision that will take two to three years to complete. As is the case with Coyote Valley, an immediate, drastic change to the Evergreen Specific Plan that relies on an outdated General Plan is putting the cart before the horse. It would be far better for the City to revise the General Plan and then analyze the proposals it has received for Evergreen to decide its policy there.

Committee for Green Foothills strongly supports deferral of this project.

Why this is important:

It is likely that some change in zoning and the Specific Plan for Evergreen will be needed, but such changes should be done under the right circumstances and not at the expense of the environment. Making these changes under an updated General Plan that corresponds to the San Jose of today makes better decision-making far more likely. Constant maneuvering and pressure by developers also give a reason to put a brake on this project.

Handling Evergreen development correctly increases the chance of doing the same with the even-bigger Coyote Valley decision, so the decision on Tuesday is important.

For more information on these proposals, read the Mercury News editorial, and the Draft EIR summary.

What You Can Do:

Please ask the City Council to defer a decision on the Evergreen Specific Plan until the General Plan has been revised, and to ensure that loss of farmland and burrowing owl habitat be mitigated, if and when a decision on Evergreen ever happens.

Contact:
San Jose City Council:

Email the Mayor,

Email the City Council,

or fax (408) 277-3868

As always, please send a copy to us so we can track the efficiency of our work:
Fax (650) 968-8431 or action@GreenFoothills.org.

Thank you for speaking up for environmental protection!

Coyote Valley wildlife in the spotlight

The Committee for Green Foothills co-sponsored a highly valuable environmental forum over the weekend, Wildlife of Coyote Valley. I would roughly estimate 100 people attended and listened to three highly knowledgeable experts, Dr. Grey Hayes, from the Elkhorn Slough Foundation; Tanya Diamond, a wildlife biologist at San Jose State University; and Stuart Weiss, Conservation Biologist focusing on endangered butterflies and plants. They clearly indicated the environmental value of the area, and the threat Coyote Valley development poses to wildlife corridors.

I also talked to two residents I hadn't known who had great personal knowledge of the wildlife - one of them a birder, the other a man who had tracked deer migration in the area for years. I encouraged both of them to review the Draft Environmental Impact Report for Coyote Valley and to submit their own comments, pointing out any oversights in the document.

It was a great opportunity both to share information and to make connections that could protect Coyote Valley. Our position hasn't changed - Coyote Valley shouldn't be developed at all, but if it does go forward, its impact should be minimized.

-Brian