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

---

[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

What you can say in three minutes about impervious surfaces

I had three minutes yesterday to talk at a mini-workshop for the Santa Clara Valley Water District about how local governments in Santa Clara County (and probably, statewide) are violating the California Environmental Quality Act regarding impervious surfaces - paving over our watersheds. As a little blogging experiment, I'm seeing if I can attach a readable PowerPoint presentation and text below. Let's see how it goes.

-Brian
------------
Slide 1:
Good afternoon, Brian Schmidt from Committee for Green Foothills and the Creeks Coalition. This morning you have been hearing about the problems from erosive forces; I will discuss a very specific solution that is available now and is legally required…


Slide 2:
…which is tracking cumulative impacts regardless of project size, and mitigating those impacts.

Current and proposed regulations, including those discussed today, do not limit the erosion impacts from small projects, but only those adding large amounts of impervious area.

However, small projects in combination can create significant problems. The City of Palo Alto found that much of its increase in impervious surfaces came from these small projects.

Additionally, permits allow large projects to have impacts when mitigation exceeds cost limits. These small and large project impacts are ignored.

Slide 3:

A policy tool already exists that requires analysis and feasible mitigation of these impacts, the California Environmental Quality Act. CEQA requires analyzing cumulative impacts that result from individually minor but collectively significant projects taking place over time. Land use agencies must do this analysis – they might choose to do it proactively, or they could end up being forced to do it.

Slide 4:

CEQA also requires reducing the impacts where feasible, and reducing impervious surface impacts is feasible. It’s easy to reduce the impervious surface area, especially for small projects that have not been required in the past to limit this impact. Using permeable pavement that allows water to percolate through it is also very feasible. Finally, CEQA allows paying into a fund for offsite mitigation that could reduce pavement elsewhere, or otherwise help mitigate the erosion impacts. Water District staff has expressed interest in off-site mitigation in other contexts.

Slide 5:

So, how to move forward? Ideally, land use agencies would do a programmatic analysis of all their watersheds to analyze cumulative impacts and propose mitigations, but they also may be forced to do an analysis. For our purposes today, though, we are asking the Water District itself act proactively by providing the technical information that agencies or advocacy groups could use to determine whether cumulatively significant impacts exist in various stream reaches. As a neutral provider of environmental information, this step would be invaluable.

Slide 6:

Committee for Green Foothills did an extensive legal white paper pursuant to a grant we received from the Water District. The white paper is available at this website address, as is my contact information for any follow-up questions.

CGF Comments on the Water District Performance Audit

(We submitted comments on a performance audit for the Santa Clara Valley Water District. I'm the environmental representative on an advisory committee, discussed briefly here.

-Brian)
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The following are my comments on behalf of the Committee for Green Foothills regarding the Watershed Operations Audit Memorandum of the March 2007 Comprehensive Performance Audit Final Report prepared for the Water District.

(The following page references are to Appendix E of the Final Report.)

Page 2: fieldwork listed for the Watershed Operations Audit does not include interviews with outside stakeholders. I was interviewed by the auditors, primarily concerning watershed issues. My interview is listed elsewhere in the Audit, but I hope the omission here does not mean my interview was left out of consideration for the Watershed Memo. Some of my comments would have fallen into the category of “Opportunities for Improvement,” although I did not take notes when I was interviewed.

Page 4 and Page 18: Strength Finding No. 1, praising the Watershed Permit Management System, appears to conflict with Opportunity for Improvement Finding No. 6, stating the District “is not fully prepared for future permit-driven monitoring.” More explanation is needed as to why the current system will be inadequate, and if so, why the current system is not currently inadequate.

Page 6 and 7: Strength Finding No. 2, praising the “partner” relationship with the City of San Jose over Coyote Valley, is troubling. The District should be a neutral provider of information regarding environmental protection, water quality, water supply, and flood protection. If San Jose ultimately approves Coyote Valley development and the project goes forward, then a partner relationship could be appropriate, but right now this highly contentious project divides the people that the District works for – the voters of Santa Clara County. There are limits to the Baldrige business model when applied to governments, and this may be an example. At this point in time, the District should not be taking sides.

Page 8 and 9: as it appears that no one on the Clean Safe Creeks Independent Monitoring Committee was interviewed, I would like to know the basis the auditors have for concluding that the program is successful. I am not for my part stating it is successful or unsuccessful overall, and the parts I am familiar with appear to be successful, but am interested in what the basis is for this determination.

Page 11 and 12: the statement on p. 12, “the perception local agencies have of the District with respect to floodplain management probably does not match the services the District provides” is unclear as to what exactly is the problem. The worst-case scenario is that the District and the agencies both believe the other side has taken on a responsibility that it has not, and something is not being done that should be done. This needs to be clarified.

Page 15 and 16: The discussion of the Watershed Resources Protection Ordinance misses that this is primarily an environmental protection issue, and the possibility of damage to flood control structures is a secondary issue. It further misses the issue that the Environmental Advisory Committee made recommendations that were not incorporated into the final ordinance (as I understand it). The comparison between the recommendations and the final ordinance would have been a useful place for an outside auditor to determine whether performance could be improved. Issues such as whether the District gave up too much authority that it legally could have exercised to agencies that are unwilling to protect the environment could also have been discussed as part of a performance audit.

My suggestion is the District react to this report by clarifying its role as a neutral provider of information. The District should also clarify that it is allowed to take a policy position supporting or opposing major projects like Coyote Valley, and clarify when it is acting as a “partner” and when it is acting as an expert agency.

I further suggest that any monitoring program tracking overall mitigation required of the district, also track when the District is supposed to be consulted by others. Many land use agencies, for example, will issue conditions to permits requiring landowners to consult with the District before proceeding with certain actions. While compliance in these cases is not the District’s responsibility, it would be very useful to have a single place to go to try and track down when consultation is required.

Please contact me with any questions.

Sincerely,
Brian Schmidt

Comments on the LAFCO ag mitigation guidelines

We submitted the following comments

-Brian
--------------

Dear LAFCo Commissioners;

Per the message below, the Committee for Green Foothills supports the LAFCo staff proposal on agricultural mitigation guidelines. We additionally support the Greenbelt Alliance position:

That no less than one acre of farmland be protected for every acre paved over.

That the Cortese-Knox-Hertzberg Act definition of prime farmland be used instead of the LESA model which has failed to protect farmland in Gilroy. In other words, fallow farmland should trigger mitigation.

Cities should craft their own ordinances that assure LAFCO that mitigation will be fulfilled at the time of development and that the mitigation requirement be recorded against the property

Finally, we note that one sentence in the staff report should be clarified by the LAFCo Commission. On page 4, the last sentence in the second paragraph reads “LAFCO’s decision on the proposal will not be based solely on the issue of impacts to agriculture or consistency with LAFCO’s agricultural mitigation policies.” While it is correct that LAFCo may make its decision based on other criteria, this sentence unintentionally suggests that agricultural impacts are insufficient grounds, standing alone, to deny an application. LAFCo retains the authority to decide that even if all other criteria are met, impact to agriculture can be so severe as to justify denial. In staff’s attempt to clarify that compliance with guidelines is not mandatory, this statement became overbroad. I suggest LAFCo state their understanding to be the following instead:

“LAFCO’s decision on the proposal will consider all criteria, not solely the issue of impacts to agriculture or consistency with LAFCO’s agricultural mitigation policies.”

Please contact me if you have any questions.

Sincerely,

Brian Schmidt

(650) 968-7243

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From: Committee for Green Foothills [mailto:info@greenfoothills.org]
Sent: Monday, April 02, 2007 2:10 PM
To: Committee for Green Foothills
Subject: Help Preserve Santa Clara County's Remaining Farmlands!

The Santa Clara County Local Agency Formation Commission (LAFCo) is deciding whether to clarify agricultural mitigation guidelines that call on developers to legally protect at least one acre of farmland for each acre they convert into city land. Please contact the LAFCo Commission and tell them to support the guidelines as a significant step forward in protecting our remaining farmlands!

What's Happening

Santa Clara County LAFCo decides whether cities can expand and extend city services to new areas, such as City of San Jose is proposing to do in Coyote Valley. This means LAFCo is a crucial agency for controlling suburban sprawl and policies it develops that require environmental mitigation for expansions that do occur are critical to reducing the impacts of suburban sprawl. This Wednesday, April 5^th, LAFCo will decide whether to adopt a policy that clarifies how it will consider the loss of farmland in evaluating a proposed city expansion. This policy includes a guideline that cities mitigate for farmland converted to suburban uses through legally protecting other nearby farmland from future development.

Why this is Important

Santa Clara County used to be called “The Valley of Heart’s Delight” because of the miles and miles of farms and orchards that used to cover the valley. Then cities raced each other to see which one could annex and develop the most farmland, a runaway process that resulted in the state law creating LAFCo as a means to referee and slow down the expansion process.

LAFCo must consider the impact on farmland when deciding whether to approve city expansions, but the guidelines for considering this impact, and whether preserving other nearby farmland on a permanent basis would make up for the farmland lost to development, were all unclear. LAFCo staff now proposes guidelines suggesting that at least one acre should be preserved for every acre lost. While the guidelines could be stronger, they are a significant improvement over current policy. The proposed guideline also clarifies that even if cities comply with this one-to-one replacement factor, they would have no guarantee of approval of the annexation, because the loss of farmland can still be significant. The guidelines are also stiffer than those proposed or in place by some cities.

What you can do

The Santa Clara LAFCo Commission meets on Wednesday, April 4th, to decide whether to approve the staff recommendation. At the same meeting, LAFCo will decide whether to approve an expansion of Morgan Hill’s boundaries that seems likely to violate the new policy. Please tell LAFCo to support the staff recommendation on agricultural mitigation guidelines, and also to either reject the Morgan Hill expansion proposal or send it back for analysis under the new guidelines.

1. Please fax or email LAFCo and ask them to support the staff agricultural mitigation guidelines, and to deny the Morgan Hill expansion or apply the new guidelines to the expansion. Send your comments to:

Emmanuel Abuello, LAFCo Clerk, and request that he distribute your comments to all the LAFCo Commissioners.

Fax: (408) 295-1613
2. Please send a copy of your message to CGF so we can track our efforts on this issue:

Fax (650) 968-8431 or

To learn more,
read the LAFCo staff report on agricultural mitigation.

And read the CGF letter on ways to improve the mitigation.
Thanks for speaking up for open space. Your voice does make a difference!

San Jose on Time Magazine in the year 2040

I participated in a preliminary planning meeting for the planned update of San Jose's General Plan. These updates are due every 15 years, and starting now makes it possible to make the 2009 deadline.

I emphasized four points:

• The General Plan should control Specific Plans, so the Coyote Valley Specific Plan should not be approved before the the General Plan is revised. After the revision is complete, the City can revisit whether it should go forward with Coyote Valley.
• There are thousands of acres of City jurisdictional land outside of the Urban Service Area where the City has no plans for development. Current residential zoning is completely inappropriate and an invitation to sprawl. The City should either de-annex these lands, reverting them to County control, or should redesignate them as "Open Space."
• The review should examine how much of the City's industrial land has been rezoned to other uses. Given the City's constant reference to the lack of employment in the City as a reason for expanding into Coyote Valley open space, the City should examine whether that lack of employment is a self-inflicted wound.
• The City's Riparian and Wildlife protection policies have loopholes that have been repeatedly exploited. The City should do a "Best Practices" comparison between its policies and those found in other cities, and update its policies to reflect the best found elsewhere.

Also as part of the process, City Staff asked us to imagine that San Jose was the cover story in a Time Magazine issued in 2040 for being the "best-managed" American city, and then describe the magazine's cover. This is what I gave them:

Time Magazine
Earth Day, 2040

San Jose: Wildlife City

From the “Everglades of the West” to hiking trails among the mountain wildflowers of Coyote Ridge, San Jose has promoted urban access to wildlife. Can other cities copy its protection of urban river steelhead, and migration corridors for Tule Elk?

Let's hope it becomes true!

-Brian

The Secret Society of Survey Stake Pullers

Last week I had the opportunity to attend one of the Peninsula Open Space Trust's Wallace Stegner Lectures. This lecture was by Richard Louv, author of the book "The Last Child in the Woods," about the decreasing contact that children have with nature. Louv talked about being a member of the Secret Society of Survey Stake Pullers - people who as children had roamed in woods, and then became enraged to find survey stakes marking where their woods would be destroyed, and pulled the stakes out.

I'll confess to having become a member of this society when I was eight years old and roaming the woods of upstate New York, although I only did it once (not nearly as extensively as some other folks). I've little doubt that my childhood access to nature plays a role in my current desire to protect open space through wholly-legal means.

Louv has founded the Children and Nature Network to "reconnect children to nature." These efforts are an important complement to our open space advocacy. Four decades of CGF's work has created a network of open space reserves in our counties, and we can use that network to support more advocacy for open space protection.

Santa Clara Valley Water District and global warming

At the latest meeting of the Water District's Environmental Advisory Commission, the District's staff guided us through eleven long-term strategic challenges they anticipate. Number three was global warming. Three concerns in particular threaten their work: first, rising sea levels threaten the aging levee system in South San Francisco Bay. Much of San Jose is actually below sea level due to overpumping of ground water in past decades, so the threat is further enhanced.

Second, rising sea levels mean saltwater intrusion into water tables in the Bay-Delta region, reducing the amount of local groundwater available. And third, rising temperatures mean more precipitation in the Sierras will fall as rain instead of snow, depriving us of some of our snow-pack water reservoirs. These are only some of the impacts they could have mentioned.

All the more reason to fight climate-destroying sprawl.

Why Reject Alpine Road Sidewalk Expansion

This article was submitted to the Menlo Park Almanac last May (2006) but covers some of the history about why the Committee for Green Foothills thinks moving ahead with the Alpine Road sidewalk expansion is not wise. The San Mateo County Board of Supervisors is set to vote on Tuesday, March 27th at 10 am on a recommendation to reject Stanford's offer to build this trail.

Guest Opinion
Almanac News
May 19, 2006

On Tuesday, May 23, from 4-7 pm, at Woodland School’s Multi-Use Room in Ladera, Supervisors Jerry Hill and Rich Gordon will solicit community reaction to Stanford’s proposed expansion of the existing sidewalk/trail along Alpine Road.

On behalf of Committee for Green Foothills, I urge San Mateo County and Portola Valley to decline Stanford’s “offer” of $11.2 million to expand our perfectly usable Alpine sidewalk/trail. An expanded sidewalk does not repay the debt Stanford owes to the community from its expansive development, and foisting new impacts on our creeks and communities to solve Stanford’s problems cannot be allowed.

As mitigation for the increased need for recreational opportunities resulting from the 5 million square feet of housing and academic development allowed by its General Use Permit, Stanford agreed to dedicate, construct, and maintain a trail crossing Stanford lands on the Santa Clara side of Los Trancos/San Francisquito Creeks (the “C-1” Trail).

Last December, the Santa Clara County Board of Supervisors (Liz Kniss dissenting) capitulated to Stanford’s intense lobbying and punted the “C-1” Trail out of Santa Clara County and onto the Alpine Road sidewalk/trail. This facility is not on Stanford lands, is already constructed, and there is no funding proposed by Stanford for maintenance.

Instead of being a bona fide mitigation, the proposed urban sidewalk would cause significant new adverse environmental and community impacts.

Specifically, the so-called “improvements” would intrude into sensitive creek and riparian habitats, armor the creek banks with engineered walls in ten locations, require major cutting into the hillside opposite Bishop Lane, remove trees that screen Ladera Oaks tennis lights and noise from Ladera neighbors, and cross many private driveways at Stanford Weekend Acres.

Spending an astronomical $11.2 million to expand a 3 mile long existing trail in Portola Valley and San Mateo County is not only wasteful, but is inconsistent with Alpine Road’s scenic corridor policies and numerous County, State, and Federal watershed protection mandates.

Stanford has said that San Mateo and Portola Valley can modify the plans. But Stanford will not agree to any relocation of the trail away from busy Alpine Road, onto Stanford lands, or across the creek into Santa Clara County.

San Mateo County and Portola Valley should reject Stanford’s attempt to fulfill its mitigation obligations with an unsafe, environmentally harmful, and unnecessary project. Redirecting the $11.2 million back to Santa Clara will provide far greater public recreational benefits to Stanford and its neighboring communities.

Lennie Roberts, Legislative Advocate
Committee for Green Foothills

Press release on Stanford Trails

Committee for Green Foothills

NEWS RELEASE

FOR IMMEDIATE RELEASE: March 21, 2007 PRESS CONTACTS:

Holly Van Houten, Executive Director (x360)
Brian Schmidt, Legislative Advocate (x313)
phone (650) 968-7243 * info@greenfoothills.org
Lennie Roberts, Legislative Advocate (650) 854-0449

San Mateo County Supervisors Set to Reject

Alpine Road Trail

PALO ALTO, CA -- Stanford University’s proposal to construct an environmentally-destructive sidewalk expansion in San Mateo County instead of a promised recreational trail on Stanford land faces a recommendation to “reject” the expanded sidewalk at the San Mateo County Board of Supervisors’ meeting scheduled for March 27^th.

“We are pleased by San Mateo County Supervisors Rich Gordon and Jerry Hill’s recommendation to reject the Alpine Road sidewalk proposal. Stanford tried to get out of its obligation to build a trail crossing its land in return for substantial development rights it received by moving the trail into San Mateo County,” said Holly Van Houten, Committee for Green Foothills’ Executive Director. “This recommended action validates our opposition to the proposal. This sidewalk is not wanted by the community and is too destructive to the environment.”

Stanford and Santa Clara County did not seek approval of San Mateo County before deciding in December 2005 to replace a required trail on Stanford land with the proposed Alpine Road sidewalk expansion. Residents strongly opposed the proposed 16-foot wide sidewalk because of safety concerns where the expanded sidewalk would cross many private driveways in the Stanford Weekend Acres area, environmental impacts to adjacent sensitive creek and riparian areas, the need to armor the creek banks to support the expanded sidewalk, as well as the proposal to cut into a steep hillside to move Alpine Road to make road for the expanded sidewalk.

Tuesday’s anticipated Board action would reject the Alpine Road Trail and instead encourage Santa Clara County to establish a grants program to make the $8.4 million Stanford is required to pay available to recreation projects. “There are many better uses for this money than the Alpine Road sidewalk expansion,” said Lennie Roberts, Committee for Green Foothills’ San Mateo Legislative Advocate. “Everybody, including Stanford residents, wins with the creation of a grants program that makes the best use of these funds. We hope the funds can be made available as soon as possible.”

Under the agreement between Santa Clara County and Stanford University, Stanford could wait until 2011 to see if San Mateo County would change its mind before paying the fees.

Background: Stanford required to provide two trails

The Santa Clara County 1995 Trails Master Plan identified two trails crossing on the northern and southern sides of Stanford lands, identified as the “C1” and the “S1” trails. As a condition of Stanford University’s 2000 General Use Permit that allowed the University to build an additional 5 million square feet of housing and academic facilities, Stanford was required to come back to the County with a plan to move forward with ‘building, dedicating and maintaining’ these two trails on University lands by the end of 2001. “During this 5 year period, Committee for Green Foothills and other community members proposed several alternative alignments and several compromise alignments, all of which were rejected outright by Stanford,” said Jeff Segall, board member for Committee for Green Foothills.

In 2003, the County decided to split the planning of the two trails and moved forward with planning for the less-controversial “S1 Trail” first, and initiated an extensive review process to determine the S1 Trail alignment. Stanford offered an alternative alignment for the S1 Trail that moved it away from Page Mill Road, but when the County indicated in the fall of 2005 that it would accept that offer, Stanford added another condition. It offered to make the “S1 Trail” available immediately, but only if the County immediately decided to exclude the second trail, the “C1 Trail” from crossing Stanford lands in Santa Clara County. Stanford proposed that instead of going forward with the C1 Trail within its lands, it would offer to pay San Mateo County and the Town of Portola Valley to expand an existing sidewalk along Alpine Road. The Santa Clara County Board of Supervisors voted to accept this proposal in December, 2005. The County’s approval did not contain any environmental review of the C1 alignment, even though the environmental review for the S1 Trail had been extensive.

Stanford and Santa Clara County also changed plans without environmental review by agreeing to take money instead of a trail if San Mateo County or Portola Valley rejected plans for an expanded sidewalk. This decision to eliminate a potential Santa Clara County trail in return for money is another approval made by the Santa Clara County Board of Supervisors without environmental review.

Committee for Green Foothills Litigation on Stanford Trails

Open space advocacy group Committee for Green Foothills filed suit on June 9, 2006, against Stanford University and Santa Clara County, arguing that the County’s decision to exclude a required trail from Stanford lands in the County violated state law because it was done without any environmental review.

The lower court ruled in October that Committee for Green Foothills had only 30 days to file suit over the decision that Stanford and Santa Clara County made in December 2005. The Committee had filed suit in June 2006, under the belief that a 180-day deadline should have applied. “There’s a striking contrast between the S1 Trail decision with a full scale Environmental Impact Report, and the more-destructive decision on the Alpine Road sidewalk, which was made with no environmental review at all,” said Brian Schmidt, Santa Clara Legislative Advocate for Committee for Green Foothills. “That was our basis of argument that the 180-day period in which to file suit should have applied.”

Committee for Green Foothills filed an appeal in December, 2006, which is still pending before the court. To date, the court has not reviewed the merits of the case, but the appeals court should take a broader review of the issues.

# # #

About the Committee for Green Foothills

Committee for Green Foothills is a regional grassroots organization working to establish and maintain land-use policies that protect the environment throughout San Mateo and Santa Clara Counties. Committee for Green Foothills, established in 1962, is a Bay Area leader in the continuing effort to protect open space and the natural environment of our Peninsula. For more information about the Committee for Green Foothills or about our work on this issue, visit www.GreenFoothills.org.

Coyote Valley at San Jose City Council and in Wikipedia

I was at San Jose City Council late last night, trying to save the riparian zone of Calabazas Creek from a Duckett Way development that was using loopholes to bust the City's 100-foot buffer policy (we were mildly successful).

Since I was there anyway, though, I took advantage of the Open Forum to announce that City staff had informed me that they didn't plan to respond to our criticism of the Draft Fiscal Analysis for Coyote Valley. I said it was critical that the City respond, because the analysis was flawed and the project jeopardizes the City's finances. We'll see what happens, but at least the City Council now knows about it.

And thinking about the subject made me decide to update the Wikipedia entry for Coyote Valley to include the fiscal analysis issues.

We're getting the word out!

-Brian

CGF's oral comments on the San Jose Water Company logging plan

I attended the California Department of Forestry hearing on Wednesday, January 31 that was held to receive public comment over the San Jose Water Company proposal to log 1,000 acres of redwoods and Douglas-Fir trees in Santa Clara County. Hundreds of people attended, and I would guess 90% were opposed.

The best argument against the type of plan the company submitted is that it's only available for smaller landowners, while the company holds too much land. This could be a deal-killer.

I spoke near the end and had three basic comments. First, I said the best way to resolve the conflict between fire experts is a collaboratively-created Community Fire Plan that doesn’t hand control to one company, such as is the case here where the company has a bias that encourages arguing that logging big trees is good for fire protection.

Second, two pro-logging speakers had said we need to cut down our trees because otherwise they’ll log irresponsibly in Canada. So I noted how another, earlier speaker had come from a forest protection group in the Sierras and spoke against the project. Rather than encourage a bad plan here to protect her area, she felt that promoting good environmental management overall will help her area more.

Third, a staff member of the applicant had previously said they allowed a government agency to bring a hired consultant on to their land because they “had nothing to hide.” I pointed out that they refused permission for the fire experts hired by the community to participate in a pre-harvest inspection.

I thought I’d write about this partly because it’s such an important issue. Also, it’s an example of how I often try and use my very short opportunity for public comment. While there are usually multiple points I want to emphasize even before I've heard other speakers, I also try and seize the opportunity to reinforce previous good comments and to demonstrate why opposing arguments are incorrect.

-Brian

Keeping drugs out of the water

The Mercury News reports about a successful program in San Mateo County encouraging people to turn in their old medicines for proper disposal, instead of pouring them down the toilet. The powerful drugs, even in minute quantities, are harming the fish and amphibians in constant contact with medicated water.

Other jurisdictions are looking to copy San Mateo County. Let's hope it spreads.

-Brian

Ainsley Timber Harvest Plan Threatens Butano State Park

Lennie Roberts, CGF's San Mateo Legislative Advocate, submitted these public comments on the proposed Timber Harvest Plan of the Ainsley Forest.

January 23, 2006

Ms. Leslie Markham
Deputy Chief, Forest Practice
California Department of Forestry and Fire Protection
135 Ridgeway Avenue
Santa Rosa, CA 95401

Re: THP 1-06-127 SMO, Ainsley Forest LLC

Dear Ms. Markham,

The Committee for Green Foothills has reviewed the above-referenced THP. We appreciate the opportunity to comment on this plan.

The THP and its accompanying environmental information and analysis, as revised and recirculated on January 8, 2007, has significant errors and omissions and as such is incomplete and inadequate in a material way, and cannot be used to evaluate the environmental effects of the proposed THP. We believe that the THP in its current form has the potential to result in significant environmental impacts. The Alternatives Analysis does not include a fair and thorough analysis of possible alternatives, but rather appears to have been written to reach a foregone conclusion favoring the proposed THP.

Our specific concerns include the following:

1) Proposed commercializing of illegally harvested trees

The THP, on page 26, acknowledges that “The Ainsley Forest LLC pursued a project to mill lumber for personal use within the last couple of years. Hire labors (sic) fell (sic) approximately 50 trees within the project boundaries prior to the exploring the opportunity of a Timber Harvest operation with Big Creek Lumber Company.” It is a stretch to state that the cutting of 50 trees is merely for “personal use.” What documentation has the landowner provided that use of these trees was not for commercial purposes? On page 27, the THP states; “There is (sic) approximately 40-50 mbf of down timber manufactured into logs within the project boundaries.” Does mbf used here stand for million board feet? Assuming that the number should be 40-50 thousand board feet, this volume of product would provide sufficient lumber for several large single family residences. Reasonable “personal use” is not 40-50 trees. An associated impact of this unauthorized timber harvesting was the unauthorized construction of new roads. The December 7, 2006 comment letter from California Department of Fish and Game (DFG) states: “During the PHI, participants found that the landowner had already graded a proposed skid trail into essentially a very steep road. The grading extends downslope past the boundary of the proposed harvest unit to a location close to Gazos Creek. It may also impinge on marbled murrelet habitat.” DFG recommends a site evaluation by DFG staff to determine whether additional mitigation measures are required to restore the integrity of the murrelet habitat along Gazos Creek. Committee for Green Foothills strongly objects to allowing the illegally harvested conifers to be commercialized without any penalties or sanctions for timber harvesting without a permit and for grading of roads and skid trails including grading outside of the proposed THP area without permits. Commercializing the illegal activity would simply be rewarding the applicant for evading the law.

2) Conflicts between map and plan text regarding haul routes

The Haul Route Map, page 24.5, conflicts with the description of Haul Route #2, page 85. The text of Haul Route #2 states trucks will turn right (north) onto Cloverdale Road, and travel to State Highway 84 in Pescadero. Trucks would then turn west on 84 to State Highway 1. The text then erroneously states that trucks would take State Highway 1 north to Big Creek Lumber Company’s mill. However, the mill is south of this intersection.

Contrary to the text described above, the map shows trucks on Haul Route #2 turning south on Cloverdale Road, and then turning right (west) on Gazos Creek Road to State Highway 1. This section of Cloverdale Road is extremely narrow, windy, and has wholly inadequate lines of sight. As such, it is dangerous and should not be used. The inconsistencies and conflicts between the text and map should be corrected.

3) Inappropriate use of State Parks roads and park resources for commercial timber harvesting

The Traffic Impacts Analysis, page 85, requires the plan to identify any public roads to be used for transporting logs. The plan erroneously identifies Butano Fire Trail and China Grade Roads within Butano State Park as public roads. Although these roads are owned by State Parks, a public agency, they are behind locked gates and are not open to motorized use by the general public, and are therefore not public roads. Public use is limited to non-motorized recreational uses, including hiking, biking, and equestrian uses.

The plan is deficient in that it has no information as to what rights the applicant has to use these public park roads for commercial use including hauling of logs and associated timber operations. Absent a specific easement, use of these roads for commercial timber harvesting operations, and improvement of these roads as called out in the THP, violates Public Resources Code Sections 5001.65, 5001.7, and 5001.9.

The plan proposes to upgrade, expand, and maintain park roads, potentially impacting recreational use and enjoyment and damaging park resources. Regarding the proposed haul routes, the plan, page 22, states: “Prior to hauling, the road will have to be upgraded in certain locations to allow for safe passage of loaded log truck.” (sic) The THP fails to identify what rights the applicant has to “upgrade” State Park property, and specifically what such “upgrading” would entail. In addition to the undefined “upgrading” of haul routes, Portia Halbert, Resource Ecologist, State Parks, in a letter dated September 16, 2006, indicates that State Parks has approved construction and use of a turnaround within Butano State Park. The construction of the turnaround beyond the limits of the current park roads to accommodate commercial timber harvest operations violates the above referenced Public Resources Code Sections governing use of State Parks lands and resources. Ms. Halbert in the same letter indicates that the roads will not only be used and expanded for timber harvesting, but will be repaired, upgraded, and maintained subsequent to timber harvesting by the timber operator, plan submitter, or applicant.

If the applicant holds a valid recorded easement that permits commercial use of these park roads, the roads must be included in the plan as appurtenant to the timber operations, as required by 14 CCR 1034 (x). Impacts from use and expansion of the roads must be evaluated. Under CEQA, all potential environmental impacts of a project must be analyzed and mitigation measures must be adopted if there are significant environmental impacts.

4) Impacts to nesting marbled murrelets within the Butano State Park Habitat Area have not been evaluated

Haul Route #2 proposes to use the Butano Fire Trail to the north and west of the Ainsley property for hauling of logs. Most of the road traverses through occupied marbled murrelet nesting habitat within Butano State Park, and its quarter-mile buffer zone, as documented by California Department of Fish and Game. The THP Restrictions Map, page 24.3, shows a small portion of the Butano State Park Habitat Area, and a portion of the Butano Fire Trail. If Haul Route #2 is selected, the plan must be revised, in consultation with California Fish and Game, to evaluate impacts and provide mitigation measures for nesting marbled murrelets within the Butano State Park Habitat Area.

5) Recreational Impacts from the proposed THP have not been adequately evaluated

The THP, page 82, identifies a recreational assessment area to be analyzed as the project area plus the area within 300 feet of the project boundaries. This is inadequate. The project will involve use of the Butano Fire Trail and possibly China Grade as the haul road (see previous comments). The portions of these roads within Butano State Park are used by the public for hiking, bicycling, and equestrian use. The plan estimates that up to 20 trucks per day will use these roads. The plan must evaluate the impacts of commercial logging trucks and associated equipment and vehicles on recreational use of these roads.

6) Alternatives to the proposed project are not fairly and thoroughly evaluated

Committee for Green Foothills is concerned that the Alternatives Section in the THP dismisses Alternative 3: Public or Private Purchase of the Timber/Timberland Alternative without any basis in fact. Particularly troubling is the conclusion that if public purchase of the property occurred, “additional infrastructure and facilities would most likely be constructed. Additional roads, parking lots, bathrooms, trails, and maintenance facilities would have to meet or exceed the rate of use by individuals seeking recreation opportunities.” This conclusion is not based on factual evidence, and is in fact contrary to the management of the back country of Butano State Park and other redwood parks in the area. Old fire trails and logging roads are used by hikers, cyclists, and equestrians, and do not necessitate construction of additional roads, new parking lots, bathrooms, trails, and maintenance facilities. Addition of this remote property to Butano State Park could expand the geographic area enjoyed by low impact recreational users and at the same time protect the important stream and wildlife habitats on the property. The THP’s proposed harvesting of the maximum allowable commercial forest species (up to 60% of trees 18” in diameter and greater dbh, and up to 50% of trees between 12” and 18” in diameter dbh) will result in substantial new road construction and reconstruction, operations in or adjacent to biologically sensitive habitat areas, and in geologically unstable land areas, all of which have the potential to cause greater environmental impacts than public purchase for parkland.

The Public or Private Purchase Alternative further dismisses private sale of these larger parcels of land, stating that such sale “could result in an additional portion of San Mateo County being subdivided and becoming densely populated.” The TPZ zoning district allows a very low density of development, in this case one house per 40 acres, and the property’s remote location greatly reduces the property’s desirability for residential development. An example of this lack of desirability is upper Gazos Creek Road, where several parcels of 20 to 40 acres have never been developed with residences. The conclusion that the property could become densely populated is erroneous and not supported by the facts. Further conclusionary statements in this paragraph are equally erroneous – for example, any very low density subdivision would be conditioned through the environmental review and approval process to protect wildlife migration corridors, aquatic habitat, and special status species.

Alternative 5; Delaying the Timing of the Project, or Alternative Project Locations on the Ownership states that the delay could affect Maximum Sustained Production per 14 CCR 913.11(c). However, this statement is contrary to the landowner’s demonstrated management given the fact that no commercial timber harvesting has occurred on the property since the late 1950’s. The statement that “not making timely environmental improvements to the site may present adverse effects’ is questionable since the owner has been engaged in illegal grading of skid roads, trails, and roads over the past two years, which has likely caused significant environmental impacts to the tributaries and mainstem of Gazos Creek. The landowner should be required to remediate these graded areas regardless of whether a THP is granted. Moreover, it is the responsibility of the landowner to maintain and repair logging landings, skid trails, roads, and other associated drainage facilities whether or not these activities are under the purview of a THP or a County Grading Permit.

CGF appreciates the opportunity to comment. We request that we be notified in writing of any actions CDF takes on this THP.



Lennie Roberts, Legislative Advocate
Committee for Green Foothills

cc: Portia Halbert, California Department of Parks and Recreation
Stacy Martinelli, California Department of Fish and Game
Kent Aue, California Department of Fish and Game
Rich Gordon, Supervisor, San Mateo County
Michael Schaller, San Mateo County Planning Division