Letter to Morgan Hill about the Institute Golf Course

(We sent this letter today about the latest problem with the Institute Golf Course in Morgan Hill. -Brian)

August 29, 2007
Morgan Hill City Council

Re: Agenda Item #4 – Institute Golf Course

Dear Mayor Tate and City Councilmembers;

The Committee for Green Foothills has reviewed the Santa Clara Valley Audubon Society letter regarding the Institute Golf Course, and we endorse its contents and recommendations.

Speaking as someone who has followed this issue for four years, I can also attest to the frustration of watching a sophisticated and wealthy set of individuals get away with environmental murder repeatedly. The City’s entire response for the last ten years since the golf course was illegally constructed has simply been to legalize what has already, illegally been done to the property. This latest manifestation now is to legalize the landowners’ decision to ignore mitigation deadlines, replacing the old deadlines with new ones and old mitigation standards with new, undefined concepts that call for completely –unearned trust in the City’s vigilance. With little hope, we request that the City this time take a different stance, reject the staff recommendation, require immediate compliance with the numerous mitigations that can be complied with immediately, and bring an enforcement action against the landowner requiring them to stop using the golf course until all other mitigations have been complied with.

It may be relevant to bring into the open the rumors that have circulated that Frys may move its corporate headquarters to Morgan Hill, as the rumors might also explain the consistent kid-glove treatment that this Frys-associated landowner has received from the City. Even if the rumors had some basis in fact, they do not justify the landowners’ noncompliance or the City’s non-enforcement. Equally important though is that the rumors appear to be wrong. I first heard them over three years ago, and I’m sure they circulated for longer than that, yet there is no sign of movement to Morgan Hill. I am concerned that these background rumors can influence decisonmaking here and in other cities could possibly be hearing similar rumors. If the City wishes to do some kind of deal, it should do it in the open.

Finally, to supplement mention of the many legal flaws described in the Audubon letter, we point out that CEQA acknowledges the existence and significance of temporary impacts, so the failure to put mitigations in place in a timely fashion is a significant impact that must be analyzed. In addition, “take” under the ESA is generally recognized as a significant impact under CEQA, and acknowledging the take means a Supplemental EIR must be prepared. If the City is permitting “take” without requiring the relevant state and federal ESA permits first, or if it is permitting such take for a longer period than anticipated and analyzed in the original EIR, then a new and unanalyzed significant impact is present and requires at least a Supplemental EIR.

Please contact us if you have any questions.

Sincerely,
Brian A. Schmidt
Legislative Advocate, Santa Clara County

Some good legal news in California about global warming, air pollution, and maybe about buying local food

Both of these news items are via Warming Law, a blog focusing on legal issues related to climate change.

California Attorney General Jerry Brown has settled a CEQA/global warming lawsuit against San Bernardino County (settlement here). This is relevant to Coyote Valley, where the EIR used the same legal theory as San Bernardino to avoid reaching a conclusion about global warming:

D. It is the County’s position that the General Plan EIR, after providing substantial disclosure and analysis of greenhouse gas emission and climate change issues, and including a factual and reasoned determination, appropriately concluded that there is no available methodology for determining whether greenhouse gas emissions attributable to the General Plan Update are significant. Accordingly, it is the County’s position that the County correctly determined, based on substantial evidence, that further discussion in the General Plan EIR of greenhouse gas emissions and climate change would be speculative;

(Settlement, page 1.)

The heart of the settlement is here:

A target for the reduction of those sources of emissions reasonably attributable to the County’s discretionary land use decisions and the County’s internal government operations, and feasible Greenhouse Gas emission reduction measures whose purpose shall be to meet this reduction target by regulating those sources of Greenhouse Gases emissions reasonably attributable to the County’s discretionary land use decisions and the County’s internal government operations.

(Page 3.)

Basically, the settlement ducks the issue of whether the emissions are significant (what the county wanted) in return for promising "feasible" reductions (what the California AG wanted). A lawsuit by environmental groups is still in place though, so this may not be the final word.

Warming Law also notes a separate statement in the newspaper, "In a compromise Tuesday, lawmakers agreed that by 2010, new rules would be adopted spelling out how to mitigate the greenhouse gas emissions of projects covered by the law." It's unclear what this means, but probably is a promise by the AG's office to issue new regulations under CEQA Guidelines. These regulations can interpret but cannot weaken the underlying CEQA statute. If it's proposed legislation though, then anything is possible, good or bad.


The second development is a federal appellate court case saying Air Management Districts can order local governments to purchase clean fuel vehicles. Besides helping fight climate change and air pollution, this clears away a legal hurdle for a "buy local food" idea we've discussed at CGF - that local governments should preferentially buy locally-grown food. The same preemption arguments that the oil industry was using against the clean fuel vehicle policy could have been used against a "buy local" policy, but this decision seems to remove that barrier entirely.

Trivia note: I did a tiny amount of work on this case on behalf the air district, six years ago. These cases can take a long time....

-Brian

CGF letter and request - San Jose should wait on the Coyote Valley EIR revision

(Following up on the good news about the Coyote Valley EIR revision, CGF submitted the following request to the San Jose City Council. -Brian)

Given that City Planning staff has said the Draft EIR must be revised due to the significant criticism it received, I want to suggest that the decision on whether to start the revision wait until after the General Plan itself is revised. Three good reasons for this:

1. The City might choose to change the Coyote Valley proposal based on changing economic conditions or based on the new General Plan. The “current” direction from the City Council is from a 2002 memo with guiding principles based on the 1995 General Plan, and those principles are getting dated.
2. Environmental review will be much more accurate if done immediately prior to the City’s decision about the project rather than done years earlier. DEIR preparation started in 2005. Delaying revisions until 2009 following the General Plan approval will make them much more accurate, particularly for traffic and for making use of the information developed for the Countywide Habitat Conservation Plan, which should be complete by then. It might also give the landowner-proponents of Coyote Valley time to reconsider their current decision to refuse the City access to their properties for purposes of preparing the DEIR.
3. Serious consideration of alternatives is impossible with the current project, schedule, and cursory analysis typically found in the EIR process. In particular, I think the Mayor may be interested in a “North Coyote Only” alternative that limits the development footprint, protects critical wildlife areas and the majority of existing farmland, and still allows a net influx of jobs to the City. While as far as I know, none of the major environmental groups support this alternative (including my own), it may still be a significant improvement over the current proposal. It won’t happen though unless we halt the current process.

I have spoken to representatives of Greenbelt Alliance and of the Sierra Club and Audubon Society chapters, and they support a delay in the revision. I would be very interested in following up on this with you.

Very good news on Coyote Valley - the City acknowledges their environmental review was inadequate

From the Merc:

In a major setback to development plans for Coyote Valley, the city of San Jose plans to revise a key environmental document, responding to a mountain of scathing criticism of the controversial proposal.

The city's planning staff, in a memo released late Wednesday, said the amount and tone of the criticism were "unprecedented," forcing the department to redo parts of the draft environmental impact report that was issued in April.

While the city had hoped to certify the environmental impact report this year, Wednesday's move means it will be at least June before the environmental document is certified - alarming housing developers eager to start building. State law requires a valid report before the city can consider a plan to allow 25,000 homes and 50,000 jobs on Coyote Valley farmlands.

The decision by the city's planning staff is the latest twist in the ongoing Coyote Valley saga. The proposal has pitted a coalition of housing developers against environmentalists in a battle over the best use of the 7,000-acre area.

Among the many areas of the report that the city plans to revisit are how the development would affect traffic, water supply, agricultural land and global warming.

We and many other groups put an enormous amount of time into this. While it's just a delay right now, it is important. San Jose should simply stop the whole Coyote Valley process until the City's General Plan is revised, and then figure out what it needs to do.

-Brian