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

Good news/bad news - the Merc covers harsh reviews of the Coyote Valley report

The good news is the news coverage given by the Mercury News to the unusually harsh criticism by government agencies and others over the Draft Environmental Impact Report for Coyote Valley:

An unusually harsh set of comments by conservation groups and federal, state and local government agencies threatens to send San Jose's environmental review of Coyote Valley back to the drawing board.

The city has received a 1,300-page mountain of comment letters on the environmental assessment issued in April. State law requires a valid assessment before the city can consider a plan to allow 25,000 homes and 50,000 jobs on Coyote's farmlands.

While city planners say they won't decide until later this month whether the report needs to be redone, the collective weight of so many key environmental players and the wide scope of their critiques make it likely the city will do so. If not, and if the city council certifies the existing analysis, one or more of those agencies or organizations is likely to sue over its adequacy.

The only bad aspect of the coverage is that we were planning to do a press release around the same issue, and now it's much less likely to get media attention. The press release would have focused more specifically on our objections.

Still, we're glad this is getting the attention it deserves.

-Brian

CGF in the news - San Mateo County open space decision

(As time permits, we'll put a link here on the blog to articles when CGF's discussed in the news media. -Brian)

Victory for open-space proponents

REDWOOD CITY — Owners of some unincorporated parcels in San Mateo County
who are considering subdivision may have to think about its opposite: open
space.

The San Mateo County Planning Commission unanimously agreed Wednesday to
recommend an amendment to zoning rules requiring owners subdividing large lots —
when those lots are zoned as "resource management district" for low-density uses
— to relinquish a certain portion for open space in perpetuity.

The Board of Supervisors will have final say on the amendment, which will
come before them at a future meeting.

...

Environmental groups support the amendment to the regulations, which
haven't been updated since they were developed in 1973.
"The conservation
easement does not change the allowable uses on the property, does not change the
allowable density," said Lennie Roberts, legislative advocate for Committee for
Green Foothills. "The conservation easement will ensure that once a property is
subdivided and its entitlements are used, a future owner can not come back and
take a bite of that apple."

CGF letter of support for AB 697

(We submitted the following letter to support AB 697, a bill sponsored by Assemblyman Ira Ruskin to extend the allowable payback time for bonds issued by MidPeninsula Regional Open Space District. This may sound technical and boring, but the result is more upfront money to buy land before the costs spiral out of control. We hope it passes. -Brian)

July 10, 2007

Senator Gloria Negrete McLeod
Standing Committee on Local Government
California State Senate
Sacramento, CA 9581
FAX 916. 445-0128
AB 697 (Ruskin): SUPPORT

Dear Chairperson McLeod:

The Committee for Green Foothills (CGF) strongly urges you to support AB 697, which would increase needed resources to purchase and preserve vital public open space lands by increasing the Midpeninsula Regional Open Space District’s debt term from 20 years to 30 years. CGF was instrumental in the founding of MROSD, and we know that this change would further the effectiveness of this important institution for protecting open space.

As you know, rising real estate prices threaten the midpeninsula’s last remaining natural open space lands. We support decisive action by the District to buy open space areas to protect our natural environment and create opportunities for public recreation. AB 697 would benefit the public by saving taxpayer money and producing more funds to purchase and preserve open space lands.

The District has a stable source of income through local property taxes and has received Moody’s highest rating. Because short-term rates in the current bond market are not much different than long-term rates the District would not have to pay higher interest rates for paying back its debt over a longer-term. The extension of the District's debt is appropriate also because the District's financing is only aimed at the purchase of land for preservation as open space – and the public will own this land in perpetuity.

We ask for your help in ensuring the passage of this critical change in the District’s enabling legislation that would save taxpayers money and increase funds to purchase and preserve essential public open space lands that are vanishing quickly.

Please contact us if you have any questions.

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

Arctic warming affecting California coastal ecology

Via Grist, a disturbing story about the gray whales that migrate through the San Mateo County coastal area: pronounced warming means there's not enough food in the Arctic zones to support the migration, so whales are switching to different food items and staying in different areas. California may have some more resident whales, but a less dependable migration, and fewer baby whales seems likely to result in a smaller population overall. The overall result on our coastal ecology and the whale-watching economy isn't clear yet.

-Brian

Developers behind Coyote Valley planning process refusing to cooperate with the planning process

(The Committee for Green Foothills submitted the following letter to the Coyote Valley Specific Plan Task Force regarding developers' refusal to let the City's experts evaluate the environmental consequences of developing their land. We have received no response from the City, although one smaller landowner said the information was wrong and that he did allow access. A developer representative told us that in lieu of letting the City's experts on their property, the developers' own experts can provide that information, but that is clearly inadequate for a neutral, unbiased evaluation. -Brian)

6/18/2001

Coyote Valley Specific Plan Task Force

Dear CVSP Task Force Members:

The Committee for Green Foothills learned just recently that owners of most of the land in Coyote Valley have refused to allow City consultants to access their land in order to prepare the Draft EIR. This contradicts a recent statement by City Staff that access was denied on 30-40% of the land, which itself was an alarming figure. The attached map from the City website shows that landowners who constitute principal movers behind Coyote Valley development are refusing to cooperate with the development process.

Given that the real purpose of this project from the viewpoint of those developers is to maximize the development potential, they appear to have concluded that they will be able to develop more if information about environmental impacts is constrained until a future point. That in itself is a major worry.

Beyond this problem lies a fundamental issue of why the City should even go forward with this project when the primary instigators and primary beneficiaries are refusing to cooperate with it. We recommend that the City simply suspend any further work on this project until those owners, or at least the owners of a majority of the land, decide they wish to cooperate. Any other course of action would be to hand control of the process ostensibly meant to benefit San Jose residents in general to the landowners who are impeding proper planning.

Sincerely,

Brian Schmidt
Legislative Advocate
Committee for Green Foothills

Expansion of the Hanson Permanente Quarry?

It's not clear yet until we get a look at the revised Reclamation Plan, but Santa Clara County is considering a revised plan that could involve expanding the area affected by the Hanson Permanente Quarry in the hills above Cupertino. It may be an expansion of "only" 30 acres, but we need to see the details to be sure there are no unwelcome surprises. Committee for Green Foothills has been following environmental issues with the quarry very closely, and we'll watch this one as well.

For those who are interested, there will be a preliminary meeting at Cupertino City Hall tomorrow (Wednesday) in Room 100 at 4 p.m. People interested in seeing the environmental report that will ultimately result from this should be able to sign up on a receiving list, either signing up at this meeting or by contacting County Planner Mark Connolly, at (408) 299-5786.

We also encourage everyone to sign up for our Action Alerts to learn about how to affect crucial decisions on this quarry and on other important environmental issues in Santa Clara and San Mateo Counties.

-Brian

Why Santa Clara County should not approve the Castro Valley Ranch Subdivision

(The following are CGF's main points as to why developing the 8,000 acre Castro Valley Ranch is a mistake. For more background, see CGF's newsletter article here, and our comments on the Draft EIR here. -Brian)

1. NMFS, USFWS and Cal DFG, together with all the environmental groups and some individuals, all stated they believed the project had growth-inducing impacts. Only County staff seem to think otherwise.

2. Staff stated at the Planning Commission hearing that future growth will require future environmental review. That is irrelevant and too late – the concern is that this lot line adjustment and road extension, widening, and paving will make future growth more likely. CEQA requires analysis of growth inducing impacts now, when the actions that make future growth more likely to occur.

3. Staff also stated that induced growth comes from oversized infrastructure, but the road is at the bare minimum size. This has two flaws: first, the currently-sized road presumably could bear additional traffic (staff never says how much), and having extended and widened the road will make it easier to simply widen it in the future. Second, the lot reconfigurations will facilitate development, independent of the road. The applicant has openly claimed the line adjustments are for estate-planning purposes, in other words allowing the parcels to split into separate ownership, greatly facilitating development of individual parcels.

4. The refusal of the landowners to allow the Native American group access to look for culturally-significant sites, including burial grounds, or even to meet with the group off-site, suggests that the best interest of the county in preserving the sites will not be protected. A number of Planning Commissioners expressed their concern about this issue. Representatives of the Amah-Mutsun group told me they were also concerned about growth-inducing impacts, so this is another reason for rejecting the project.

5. Staff analysis recommended approval of the project solely on the basis that it did not violate County policies (in their opinion), but this does not examine whether approval would be in the best interest of the County. There should be a pro-and-con analysis over whether the County is better off with this project.

6. A similar pro-and-con analysis should accompany a discussion of the alternatives to the project. The staff report wholly failed to discuss alternatives, virtually all of which are environmentally superior to the proposed project.

7. Failure to consider cumulative impacts from impervious surfaces and greenhouse gas emissions is a problem in this and other County environmental documents. Staff should be asked to report on whether a programmatic analysis of these issues is appropriate.

8. If approval goes forward, a project condition should be that only people with business on the property should be allowed access (e.g., landowners on Whitehurst Road should not be allowed access as a condition of a permit, not just by a simple assertion of the landowner)

The need to save Pilarcitos Community Park

(Committee for Green Foothills wrote the letter below regarding Half Moon Bay's Pilarcitos Community Park. -Brian)

-----

June 11, 2007

Mayor Naomi Patridge and Members of the City Council
City of Half Moon Bay
501 Main Street
Half Moon Bay, CA 94019

Dear Mayor Patridge and Members of the Council,

The Committee for Green Foothills is deeply concerned about the City Council’s apparent interest in selling Pilarcitos Community Park, as reported in the news media, and agendized for Closed Session at the Council’s June 5, 2007 Special Meeting.

The city acquired this gateway property in October, 2004 from one of the coastside’s pre-eminent growers, Nurserymen’s Exchange. Through the generosity of the Peninsula Open Space Trust (POST)’s no-interest loan, the city has been given three years to find the necessary funding for the park. We understand that POST has offered to extend their loan beyond the October, 2007 deadline, and to work with the city to secure grants so Pilarcitos Park can become a reality.

The 21-acre park’s creekside setting and gentle slopes make it an ideal site for active recreation including soccer and baseball fields as well as passive uses such as trails and a community garden. The park’s Master Plan, adopted in November, 2005 after an extensive public process, provides the vision and guidance for meeting some of the long-standing critical needs for recreational facilities in Half Moon Bay and the Mid-Coast.

It was the clear intent of Nurserymen’s Exchange and POST that this property should become a Community Park. It would be extraordinarily short-sighted and deeply regrettable to dispose of this property. In our view, it would also be a major breach of trust with all the citizens who have devoted their time and talent to the planning process, and the countless residents and visitors who will enjoy the park in the future.

We recognize that the city needs to find sources of funding to make the park a reality. This is not an unusual situation - every new park that we have been involved with, over the years, has had similar challenges. Yet these challenges have been overcome.

We urge you to work with POST and other interested groups and agencies to make Pilarcitos Park a great recreational asset for the city. We offer our support in this effort.

Sincerely,

Lennie Roberts, Legislative Advocate
Committee for Green Foothills

See the Op-Ed Sausage-Making!

One of the advantages of blogging is that it gives us a chance to write some more informal, behind-the-scenes information than appears elsewhere, like in our Green Footnotes newsletter or Action Alerts.

A while back I blogged about our Op-Ed on Coyote Valley that the Merc published. Spending time on an Op-Ed is a gamble, because it's a lot of work with no guarantee of publication. The version we sent them was the seventh draft, and although I was the named author, every staff member at CGF spent time looking at it.

To give an example of the work involved, I thought it would be interesting to show the first draft. The fact that it's very different from the final shows the work of everyone involved. The other interesting part is the effect of needing to be as clear as possible, which in practice and under the constraint of a word limit meant reducing the number of arguments from the draft below and explaining them more clearly. Anyway, I hope it's interesting!

-Brian
-----

Suggested Title: Paving Coyote Valley Isn’t Green

Like a train that jumped its tracks yet plows uselessly forward, the Coyote Valley development process recently pushed onward with its Draft Environmental Impact Report. This proposed development between San Jose and Morgan Hill would eliminate the valley farmlands that stop at San Jose’s southern limits the urban sprawl reaching down from San Francisco. Seven thousand acres are at risk from development – the northern half, 3,400 acres, would become a new city, and the more-developed, already-imperiled southern half of Coyote Valley will have trouble surviving as working farmland.

The environmental report misses or underplays many environmental impacts, but the root problem isn’t the report – it’s the underlying project. The Coyote Valley development is an office-space project with an inadequate housing component, requiring the unnecessary, massive construction of a 80,000 person city over existing farmland. Currently the Bay Area has overwhelming office vacancies, so there is no demand for new office construction. However, if all the office space planned for development there were actually built, there wouldn’t be enough housing provided. Developing new office space this far south of the city central just exacerbates commuter sprawl further south through Gilroy, San Benito County and the Central Valley.

This unfortunate legacy project of the Mayor Gonzales administration provides benefits only to the developers who own and wish to eliminate the farms. Lacking a real public benefit, Coyote Valley developers have now resorted to explanations of why destroying farmland is actually something that helps the environment.

Most prominently, they say “better here than in Central Valley” – the idea being that all the people who would live and work in a developed Coyote Valley would otherwise be forced to commute long distances by car from California’s Central Valley to the Bay Area. So many errors in such a short statement, the most prominent being that Coyote Valley development actually requires sprawl construction in Central Valley. Remember, there’s not enough housing being constructed for build-out, so where will the extra people live? Many will live in Central Valley and everywhere else hit by Silicon Valley sprawl. Suburbs will expand even further, and the car commuters will ensnarl local traffic.

The allegedly-green developers may respond that Coyote Valley will at least absorb some of the workforce that live far away and commute here anyway, but that makes sense only if Coyote Valley fails to attract additional business to San Jose. Additional business means additional workers who would not otherwise come here, so the developers contradict themselves. Either developing Coyote Valley means losing three thousand acres of farms plus additional sprawl and long distance commutes, or it provides no additional business and just destroys farms while sucking business away from the rest of the city. This is their green plan?

The other environmental claim is that it’s better to plan now than to do a rush job later. Certainly, one could point to the Coyote Valley Cisco project during the Gonzales administration as a rushed job with poor planning and environmental harm. However, if we put off development now and at a future point a developer felt a tremendous urge to rush things, then a future mayor who is competent and not in the developer’s pocket could demand more environmental protections and public benefits to accommodate the rush, not fewer. Bad past planning is no reason to destroy farmland unnecessarily.

More important, what’s the rush? The last time we felt a hurry to build more office space, we couldn’t have been more wrong and are now living with the consequences. Maybe Coyote Valley will actually need to start development in twenty years, or forty years, or longer (maybe never). But what hubris for us to claim in 2007 that we can better plan the Coyote Valley city to be constructed in the year 2027 than the next generation can in 2022. Past trends have been to expect more environmental protection over time. Locking in “protections” that may be state-of-the-art now and potentially antiquated in the 2020s doesn’t help the environment, but only sets up an obstacle that future environmentalists would have to overcome.

Right now, thousands of acres of farmland persist up to the limits of a major Bay Area metropolis. Wild badgers and elk even manage to cross Coyote Valley. These are not things to be given up cheaply. Calling the loss of all that “green” when it clearly is not, fails to hide the price that comes from filling developers’ pockets while inflicting sprawl, traffic, and pollution on the rest of us. Developing Coyote Valley is a mistake.

Nature Deficit Disorder radio show

Following up on a previous blog post and the Spring 2007 Green Footnotes book review of "Last Child in the Woods," there's a good discussion of the lack of access to nature for children on the KQED radio show, Forum, available here.

We need to protect local open space so the kids have somewhere to connect to nature.

-Brian

Redwood City Saltworks Forum on Open Space and Recreation

Last night I had the opportunity to speak to Redwood City residents at a forum about recreation and open space at the site of the Redwood City Industrial Siteworks/Seaport Wetlands (depending on your point of view). The forum was hosted by Cargill/DMB, the group doing public outreach in advance of submitting a plan to the city for this 1,400 acre site located at the foot of Seaport Boulevard.

About 170 people turned out for the meeting, many if not most of them supportive of the concept of restoring the site, currently in salt production, to wetlands and open space. There was also a contingent of folks concerned about the lack of recreational space for youth sports, but many of them also supported restoration, as long as some accommodation could be made for the sporting facilities.

This site has special significance as it is the last large parcel on the Peninsula's bayfront not included in the efforts to restore the South Bay salt ponds. I urged the developers to think regionally when putting together a plan for the site, including making provisions to close a 2-mile gap in the SF Bay Trail and cooperating with efforts to restore wetlands. I also pointed out that the developers would need a change in zoning to support development on the site, currently most of the site is zoned tidal floodplain and 2/3s of the site designated for open space uses only. With the recent estimates that this part of the bay would be inundated with rising sea level and national trends post-Katrina not to build in floodplains, the developers would be wise to consider these major site constraints and trends in preparing whatever plan they do for the property.

At the end of the evening, the project lead for DMB called me the "MVP" of the evening since I ended up fielding most of the questions from the audience. I was very happy that most of the questions showed a real interest in seeing this property protected as open space and included in the wider wetlands restoration efforts.

To participate in future forums, please check out the DMB website for the property: http://www.rcsaltworks.com/. The next important step is to participate in the City's general plan process to retain the current zoning to protect this property. If you are a Redwood City resident and want to add your name to our action alert emails for this project, send your information to info@greenfoothills.org.

~ Holly Van Houten, Executive Director

Ten of the most endangered charismatic megafauna

Scientific American has a nice post and slideshow about ten endangered animals that may go extinct in the next 10 years. They all are found outside of the US (except for the leatherback turtle that occasionally enters US waters) and so the Endangered Species Act does relatively little to help them. Still it might indicate something about the ESA that no domestic species is shown.

It might indicate something else about the ESA and about the slideshow that the animals are charismatic megafauna. Species that are less charismatic, like endangered mussel species, have done less well, because they get less attention.

Our area has its share of endangered species. We like the term "charismatic microfauna" for the federally-threatened Bay checkerspot butterfly, and we're working hard to protect it.

-Brian

Do land use regulations help or hurt private property values?

A landowner might think about how much more her property would be worth if she could just add another floor or build closer to a creek, without considering what would happen to her property value if all her neighbors and everyone for miles around were free to do anything they wanted with their property.

Via an excellent post in Gristmill, there's a Georgetown University study on property values in Oregon that found land use regulations actually increase property values. Prior to 2004, Oregon had the strongest land use regulations in the country. A private-property interest voter initiative in 2004 threw that system in disarray. The study found that until the voter initiative went into effect, property values in Oregon equalled or exceeded performance in similar but less-regulated counties in Washington, and also with Washington and California as a whole. As Gristmill describes:

How can restrictions on property increase value? Well, you'll have to read the report for a full explanation. But the simple answer is that while growth regulations may decrease the development potential, they can raise values through amenity values, scarcity, tax reductions, and agricultural protections, just to name a few.

-Brian

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

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
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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