Growth

State Supreme Court decides for City of Marina against CSU

Submitted: Aug 01, 2006

The California Supreme Court yesterday decided the Marina, City of v. Board of Trustees (CSU) case in favor of Marina. The state high court found that the argument of California State University, Monterey Bay that state agencies have no obligation to pay for off-site mitigation, defined in environmental impact reports arising from their construction or expansion, was without merit.

The San Joaquin Raptor/Wildlife Rescue Center, Protect Our Water and the Central Valley Safe Environment Network filed an amicus brief on the side of the City of Marina, et al. The University of California filed an amicus brief on the side of CSU.

Below, you will find a newspaper article, the docket of the case, and the state Supreme Court decision.
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Modesto Bee
CSU must fund Monterey Bay...AP
http://www.modbee.com/state_wire/story/12526098p-13239942c.html
SAN FRANCISCO (AP) - California State University cannot skirt its financial obligations to the environment if it wants to expand its Monterey Bay campus, the California Supreme Court unanimously ruled Monday. A CSU spokeswoman said trustees would negotiate a payment plan with the Fort Ord Reuse Authority and would ask California lawmakers to pick up that tab for the growing 1,375-acre campus.
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For more information on this case, please go to:
http://appellatecases.courtinfo.ca.gov/search/dockets.cfm?dist=0&doc_id=281894
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Docket (Register of Actions)
MARINA, CITY OF v. BOARD OF TRUSTEESCase Number S117816

Date Description Notes
07/29/2003 Received: petition for review from resp Fort Ord Reuse Authority. (did not contain proper cert. of word count, counsel is sending it)

07/29/2003 Petition for review filed by counsel for resp Fort Ord Reuse Authority (word count cert rec'd)

08/04/2003 Received Court of Appeal record 1 envelope and briefs.

08/19/2003 Answer to petition for review filed by counsel for appellant (Board of Trustees of the California State University). (timely per rule 40k)

09/18/2003 Time extended to grant or deny review The time for granting or denying review in the above-entitled matter is hereby extended to and including October 27, 2003, or the date upon which review is either granted or denied.

10/01/2003 Petition for review granted (civil case) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.

10/06/2003 Record requested requested balance of record.

10/07/2003 Received Court of Appeal record balance of record.

10/14/2003 Certification of interested entities or persons filed By counsel for Respondent {Fort Ord Reuse Authority}.

10/15/2003 Request for extension of time filed by respondent (Fort Ord Reuse Authority) requesting to Dec. 15, 2003 to file opening brief on the merits.

10/17/2003 Certification of interested entities or persons filed by counsel for appellant (Board of Trustees of the Calif. State University).

10/20/2003 Extension of time granted On application of respondent (Fort Ord Reuse Authority) and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including Dec. 15, 2003. No further extensions are contemplated.

12/15/2003 Request for extension of time filed respondent requesting to Dec. 29, 2003 to file opening brief on the merits. (Recv'd fax from attorney Susan M. Popik on behalf of attorney Mary L. Hudson, counsel for respondent.)

12/17/2003 Extension of time granted On application submitted by Susan Popik on behalf of counsel for respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including December 29, 2003.

12/30/2003 Opening brief on the merits filed by counsel for respondent (Fort Ord Reuse Authority). (40k)

01/05/2004 Received: Errata notice from counsel for respondent regarding opening brief on the merits filed 12/30/03. Provided page 50 that was missing from brief.

01/22/2004 Request for extension of time filed by counsel for appellant requesting a 30 day extension to file the answer brief on the merits.

01/26/2004 Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including March 1, 2004.

01/27/2004 Received Court of Appeal record two boxes

02/17/2004 Filed: application for leave to file answer brief on the merits in excess of 14000 words - from appellant.

02/17/2004 Answer brief on the merits filed with permission by counsel for appellant (Board of Trustees of the Calif. State University.

03/09/2004 Reply brief filed (case fully briefed) with permission by counsel for respondent. (tan covers - should be white) (40k)

04/06/2004 Received application to file amicus curiae brief from the Regents of the University of California in support of appellant

04/07/2004 Received application to file amicus curiae brief City of Davis in support of Respondents.

04/07/2004 Request for extension of time to file amicus curiae brief by The Coalition for Adequate School Housing ("CASH") requesting a 20-day extension.

04/07/2004 Received application to file amicus curiae brief by League of California Cities and the California State Association of Counties in support of respondent Fort Ord Reuse Authority.

04/08/2004 Received application to file amicus curiae brief by West Davis Neighbors in support of respondents City of Marina and Fort Ord Reuse Authority.

04/08/2004 Received application to file amicus curiae brief by San Joaquin Raptor Rescue Center, Protect Our Water, and Central Valley Safe Environmental Network in support of respondent Fort Ord Reuse Authority.

04/12/2004 Permission to file amicus curiae brief granted The Regents of the University of California in support of appellant.

04/12/2004 Amicus curiae brief filed The Regents of the University of California in support of appellant. Answer is due within twenty days.

04/12/2004 Permission to file amicus curiae brief granted City of Davis in support of Respondent {Fort Ord Reuse Authority}.

04/12/2004 Amicus curiae brief filed City of Davis in support of respondent {Fort Ord Reuse Authority}. Answer is due within twenty days.

04/12/2004 Permission to file amicus curiae brief granted League of California Cities and California State Association of Counties in support of Respondent {Fort Ord Reuse Authority}.

04/12/2004 Amicus curiae brief filed League of California Cities and California State Association of Counties in support of Respondent {Fort Ord Reuse Authority}. Answer is within twenty days.

04/12/2004 Extension of time granted To April 28, 2004 to file application and amicus brief of Coalition for Adequate School Housing.

04/12/2004 Permission to file amicus curiae brief granted San Joaquin Raptor Rescue Center, Protect Our Water and Central Valley Safe Environmental Network in support of respondent {Fort Ord Reuse Authority}.

04/12/2004 Amicus curiae brief filed San Joaquin Raptor Rescue Center, Protect Our Water and Central Valley Safe Environmental Network in support of respondent {Fort Ord Reuse Authority}.Answer is due within twenty days.

04/13/2004 Opposition filed By Respondent Fort Ord Reuse Authority to request for extension of time filed by Adequate School Housing.

04/13/2004 Permission to file amicus curiae brief granted West Davis Neighbors in support of Respondents.

04/13/2004 Amicus curiae brief filed West Davis Neighbors in support of Respondents. Answer is due within twenty days.

04/19/2004 Filed: JOINT Application of ( Applt. Bd. of Trustees and Resp. Fort Ord.) for extension of time to May 18, 2004, to file one consolidated answer to amicus curiae briefs.

04/21/2004 Request for extension of time filed

04/26/2004 Extension of time granted for Appellant and Respondents to serve and file one consolidated Answer to Amicus Curiae briefs to May 18, 2004.

04/29/2004 Received application to file amicus curiae brief Coalition for Adequate School Housing.

05/03/2004 Permission to file amicus curiae brief granted The Coalition For Adequate School Housing. Answer due within 20 days.

05/03/2004 Amicus curiae brief filed The Coalition for Adequate School Housing in support of Appellant. Answer due within in 20 days.

05/18/2004 Response to amicus curiae brief filed By appellant {Board of Trustees of the California State University} to AC Briefs.

05/19/2004 Response to amicus curiae brief filed Respondent ( Fort Ord) one consolidated brief.

04/04/2006 Case ordered on calendar Tuesday, May 2, 2006, at 1:30 p.m., in San Francisco

04/21/2006 Supplemental brief filed Fort Ord Reuse Authority, respondent Sheri L. Damon, counsel

05/02/2006 Cause argued and submitted

07/27/2006 Received: letter dated July 25, 2006, regarding recent decision of a Court of Appeal case, # D046728 Fort Ord Reuse Authority, respondent Mary L. Hudson, counsel

07/31/2006 Opinion filed: Judgment reversed and the cause remanded to that court with directions to order the superior court to vacate its writ of mandate and to issue a new writ consistent with the views set forth in this opinion.Majority Opinion by Werdegar, J. joined by George, C.J., Kennard, Baxter, Moreno and Corrigan, JJ. Concurring & Dissenting Opinion by Chin, J.

Filed 7/31/06
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IN THE SUPREME COURT OF CALIFORNIA

CITY OF MARINA et al., )
) S117816
Plaintiffs and Respondents, )
) Ct.App. 6 H023158
v. )
) Monterey County
BOARD OF TRUSTEES OF THE ) Super. Ct. Nos.
CALIFORNIA STATE UNIVERSITY, ) M41795 & M41781
)
Defendant and Appellant. )

The Fort Ord Reuse Authority (FORA) challenges an environmental impact report (EIR) prepared by the Board of Trustees of the California State University (Trustees). The EIR concerns the Trustees’ plan to expand a small campus into a major institution that will enroll 25,000 students. The planned expansion will have significant effects on the physical environment throughout Fort Ord, the former Army base on which the campus is located. While the Trustees have agreed to mitigate effects occurring on the campus itself, they have disclaimed responsibility for mitigating some effects occurring off campus. In particular, the Trustees have refused to share the cost of certain infrastructure improvements proposed by FORA, the base’s new civilian governing authority. FORA challenges the Trustees’ decision to certify the EIR despite the remaining, unmitigated effects as an abuse of discretion under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA). Like the superior court, we conclude the Trustees have abused their discretion and thus reverse the Court of Appeal’s contrary decision.

I. FACTUAL, LEGAL AND PROCEDURAL BACKGROUND

Fort Ord is a former United States Army base on the Pacific Coast, about five miles north of Monterey and 125 miles south of San Francisco. The base lies on the northern end of Monterey Bay, an important tourist destination known for its scenic beauty and historic sites. In 1994, the Department of Defense formally closed the base and transferred 27,000 acres (over 42 square miles) to a variety of governmental entities and local organizations. The closure created both problems and opportunities for the region. On one hand, the loss of one of the nation’s largest military installations threatened to disrupt the local economy. On the other hand, valuable land that for over 75 years had been exclusively controlled by the Army became available for civilian economic development.

To provide a government for the former base and to manage its transition to civilian use, the Legislature enacted the Fort Ord Reuse Authority Act (Gov. Code, § 67650 et seq.) (hereafter the FORA Act or the act). Effective May 9, 1994, the act authorized FORA’s creation and conferred upon it governmental powers and duties within the former base that prevail over those of any other local governmental entity. (Id., § 67657, subd. (c).) FORA’s general statutory purpose is “to plan for, finance, and carry out the transfer and reuse of the base in a cooperative, coordinated, balanced, and decisive manner.” (Gov. Code, § 67652, subd. (a).) The act also charges FORA with the more specific policy goals of “facilitat[ing] the transfer and reuse of the real and other property [of the base] . . . with all practical speed,” “minimiz[ing] the disruption caused by the base’s closure on the civilian economy and the people of the Monterey Bay area,” “maintain[ing] and protect[ing] the unique environmental resources of the area,” and accomplishing these tasks “in ways that enhance the economy and quality of life of the Monterey Bay community.” (Id., § 67651, subds. (a)-(d).) The 13 members of FORA’s governing board are appointed by local governments neighboring the base—Monterey County and the Cities of Carmel, Del Rey Oaks, Marina, Monterey, Pacific Grove, Salinas, Sand City and Seaside. (Id., § 67660.) Also on the board are 10 ex officio, nonvoting members, including one appointed by the Chancellor of the California State University. (Id., § 67661.)

The charter for Fort Ord’s future use and development is the statutorily mandated Base Reuse Plan (hereafter Reuse Plan), which FORA adopted on June 13, 1997. (See Gov. Code, § 67675 et seq.) The plan addresses land use, transportation, conservation, recreation and capital improvement in Fort Ord until the year 2015. (See id., § 67675, subd. (c).) Pursuant to the plan, FORA will make land available over time for a wide range of civilian uses, including residential housing, business, light industry, research and development, visitor services, recreation and education. All such development will require improvements to the infrastructure the Army left behind. Recognizing this, the Legislature gave FORA the power and duty to prepare the base’s infrastructure for civilian development. In the words of the act, FORA “shall identify those basewide public capital facilities . . . that serve residents or will serve future residents of the base territory” (Gov. Code, § 67679, subd. (a)(1)) and “shall undertake to plan for and arrange the provision of those facilities, including arranging for their financing and construction or repair, remodeling, or replacement” (ibid.; see also id., § 67675, subd. (c)(5) [Reuse Plan must include capital improvement plan]).

FORA has, as the Legislature directed, prepared a capital improvement plan identifying public facilities that need construction or improvement and projecting future expenditures for that purpose through the year 2015. (See Gov. Code, § 67675, subd. (c)(5).) The facilities FORA has identified include elements of Fort Ord’s infrastructure for transportation (mainly roadways), water supply and distribution, wastewater management, drainage, and fire protection, among other things. FORA plans to improve these facilities over the life of the Reuse Plan, as increasing land use necessitates the improvements and as funding becomes available. Funding is not expected to come through legislative appropriations. Instead, the Legislature has directed FORA to arrange its own financing as it sees fit (Gov. Code, § 67679, subd. (a)(1)), employing any of several funding methods authorized in the FORA Act. FORA may, for example, “levy assessments, reassessments, or special taxes and issue bonds” under existing laws governing public finance (id., § 67679, subd. (d)), “levy development fees on development projects within the area of the base” (id., § 67679, subd. (e)) pursuant to the Mitigation Fee Act (id., § 66000 et seq.), sell or lease land (id., § 67678, subd. (a)), and “seek state and federal grants and loans or other assistance” (id., § 67679, subd. (c)). FORA and its local-government member agencies (id., § 67660) may also provide by contract for the transfer of tax revenues (id., § 67691) and/or adopt programs of local revenue sharing (id., § 67692).

In order to determine the long-term financial viability of the Reuse Plan, FORA has prepared a Comprehensive Business Plan setting out assumptions about projected revenue and expenditures. As part of this exercise—one obviously subject to numerous contingencies given the long planning horizon—FORA has projected that it will spend $249.2 million to improve Fort Ord’s infrastructure over the 20-year life of the Reuse Plan, i.e., from 1996 to 2015. FORA projects that the largest part of its operational revenue over the same period will derive from the sale of land and from a one-time special tax under the Mello-Roos Community Facilities Act of 1982 (Gov. Code, § 53311 et seq.). Other revenue is expected to come through local development fees, water and sewer fees, a grant from the federal Economic Development Administration, and the annual dues of FORA’s members.

The California State University (CSU) is the largest university system in the United States. Governed by the Trustees, CSU’s 23 campuses across the state collectively enroll 405,000 students and employ 44,000 faculty and staff. CSU Monterey Bay (CSUMB), which occupies 1,370 acres transferred by the Army to CSU in 1994, is presently the main user of the base. CSUMB opened in 1995 with 633 students, using existing military buildings, and now enrolls approximately 3,800 students, 2,600 of whom live on campus. From this modest beginning the Trustees plan to expand enrollment at CSUMB greatly over the next few decades, eventually reaching the target enrollment of 25,000 full-time equivalent (FTE ) students in the year 2030. On May 13, 1998, the Trustees approved a Campus Master Plan (hereafter Master Plan) to guide CSUMB toward this target. Under the Master Plan, CSUMB’s resident population of students, faculty, staff and household members would gradually increase to 10,350. The campus’s average daily population, which also includes students who commute, would grow to 19,000.

Together with the Master Plan for CSUMB, the Trustees also prepared and certified an EIR. The EIR is the focus of the environmental review process and, as we have explained, “the primary means” of achieving the state’s declared policy of taking “ ‘all action necessary to protect, rehabilitate, and enhance the environmental quality of the state.’ ” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392, quoting Pub. Resources Code, § 21000, subd. (a); see also CEQA Guidelines, § 15003, subd. (a).) The EIR’s more specific purposes are “to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided.” (Pub. Resources Code, § 21002.1, subd. (a).) CEQA expressly requires that an EIR accompany the Master Plan for CSUMB. “The selection of a location for a particular campus and the approval of a long range development plan are subject to [CEQA] and require the preparation of an [EIR].” (Id., § 21080.09, subd. (b).) The Trustees necessarily serve as the “lead agency” (id., § 21067) responsible for preparing and certifying the EIR (id., § 21100, subd. (a)) because they possess “full power and responsibility in the construction and development of any state university campus” (Ed. Code, § 66606) and thus final authority to approve or disapprove the Master Plan.

In their EIR for CSUMB, the Trustees have determined that expanding CSUMB to accommodate 25,000 students will have many significant effects on the physical environment of Fort Ord. CEQA requires “[e]ach public agency [to] mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so” (Pub. Resources Code, § 21002.1, subd. (b)) and to discuss feasible methods of mitigation in the EIR (id., § 21100, subd. (b)(3); CEQA Guidelines, § 15126.4, subd. (a)(1); see also Pub. Res. Code, § 21002.1, subd. (a) [one purpose of the EIR is “to indicate the manner in which . . . significant effects can be mitigated or avoided”].) In fact, the Trustees’ EIR does identify and adopt specific measures that the Trustees have found will mitigate most of the environmental effects of campus expansion to a level that is less than significant. Full mitigation of five remaining effects, however, will require action not just by the Trustees on the CSUMB campus but also by FORA on a basewide or regional basis. These remaining effects have become the subject of this litigation.

The Trustees’ EIR describes the five remaining environmental effects, for which the Trustees have not provided full mitigation, as follows: (1) Drainage: “Construction of new buildings and facilities will increase impervious surfaces and runoff, and could result in localized drainage problems and/or flows exceeding storm drain capacities, if storm drainage facilities are not adequately sized and maintained.” (2) Water supply: “CSUMB water demand will contribute incremental demands on existing deficient facilities and/or non-existent facilities.” (3) Traffic: “Campus-related traffic will result in a decrease in level of service from D to E[ ] at the [Light Fighter] Drive/North-South Road intersection[ ] during the PM peak period in the year 2005, from D to E along Del Monte Blvd. between Reindollar [Avenue] and Reservation Road[ ] in the years 2005 and 2015, and will contribute to Highway 1 impacts in the years 2015 and 2030.” (4) Wastewater management: “Campus growth will result in increased wastewater generation that can be accommodated by the existing wastewater treatment system, but will contribute flows to currently deficient sewer lines.” (5) Fire protection: “Campus population and facility growth will result in increased demand for fire protection services.”

Before a public agency, such as the Trustees, may approve a project for which the EIR has identified significant effects on the environment, such as the Master Plan for CSUMB, the agency must make one or more of the findings required by section 21081 of the Public Resources Code. The required findings constitute the principal means chosen by the Legislature to enforce the state’s declared policy “that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects . . . .” (Id., § 21002; see also id., § 21002.1, subd. (a).) More specifically, the agency must find that the project’s significant environmental effects have been mitigated or avoided (id., § 21081, subd. (a)(1)), that the measures necessary for mitigation “are within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency” (id., subd. (a)(2)), and/or that “specific economic, legal, social, technological, or other considerations” render mitigation “infeasible” (id., subd. (a)(3)). When the agency finds that mitigation is infeasible, the agency must also find “that specific overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects on the environment.” (Id., subd. (b).)

In their EIR, the Trustees have identified and adopted a variety of measures they have found will partially mitigate the five remaining environmental effects noted above. Full mitigation of these effects to the level of insignificance will, however, as the EIR specifically notes, require FORA to improve Fort Ord’s infrastructure. In fact, FORA’s own planning documents take the Trustees’ plans for CSUMB into account and propose specific infrastructure improvements that will fully mitigate the expanding campus’s remaining effects on water supply, drainage, wastewater management, traffic, and fire protection. Concerning each of these effects, the Trustees have declared in their formal findings certifying the EIR and approving the Master Plan (see Pub. Resources Code, § 21081) that the implementation of FORA’s proposed improvements constitutes the “specific measure to mitigate [each of CSUMB’s corresponding environmental impacts] to the level of insignificance . . . .”

As part of its long-term planning process, FORA adopted the assumption that that CSUMB would pay, as its share of the cost of infrastructure improvements, 18 annual installments of $1.139 million each, beginning in fiscal year 1997/1998 and ending in fiscal year 2015/2016, for a total contribution over time of approximately $20.5 million. At the present time, however, FORA has not imposed any tax, fee or charge on CSUMB or proposed to do so. Instead, FORA hopes to reach agreement with the Trustees on their fair share of the cost of infrastructure improvements. The Trustees, however, have refused to contribute any amount to FORA for improvements in roads and fire protection, even while finding that FORA’s proposed improvements constitute the specific measures necessary to mitigate CSUMB’s effects in these areas. Accordingly, the Trustees cannot logically find and, indeed, have not found that CSUMB’s effects have been fully mitigated. Instead, to justify certifying the EIR and approving the Master Plan despite the remaining, unmitigated effects, the Trustees rely on the following three alternative findings: (1) improvements to roads and fire protection are the responsibility of FORA rather than of the Trustees; (2) mitigation is infeasible because the Trustees may not legally contribute funds toward these improvements; and (3) the planned expansion of CSUMB offers overriding benefits that outweigh any remaining unmitigated effects on the environment. (See Pub. Resources Code, § 21081, subds. (a)(2), (3) & (b).)

While the Trustees have refused to contribute any amount for improvements in roads and fire protection, they are willing to contribute for improvements in water supply, drainage and wastewater management, albeit not in the amount FORA has proposed. Instead, the Trustees propose to contribute through the procedure set out in chapter 13.7 of the Government Code (section 54999 et seq.). Chapter 13.7 authorizes a public utility that is providing a public utility service to a public educational agency to impose a capital facilities fee on the latter “after agreement has been reached between the two agencies through negotiations entered into by both parties.” (Gov. Code, § 54999.3, subd. (b).) The resulting dispute over the amount of the Trustees’ contribution creates uncertainty about the extent to which CSUMB’s off-campus environmental effects will be mitigated. Accordingly, to justify certifying the EIR and approving the Master Plan for CSUMB, the Trustees have made alternative findings of the same type used to address CSUMB’s effects on roads and fire protection. Specifically, the Trustees have found that (1) the basewide infrastructure improvements proposed by FORA constitute the specific measures necessary to mitigate CSUMB’s effects to the level of insignificance, (2) the mitigation of CSUMB’s effects on drainage, water supply, and wastewater management are FORA’s responsibility, and (3) overriding circumstances justify certifying the EIR and approving the Master Plan despite any remaining unmitigated effects.

In an appendix to the EIR addressing public comments, the Trustees explain why they have refused to contribute toward improvements in roads and fire protection, and why they have agreed to contribute toward improvements in drainage, water supply and wastewater management only through the procedure established in chapter 13.7 of the Government Code (§ 54999 et seq.), even though these decisions will leave some environmental effects unmitigated. Whether the Trustees, in view of the unmitigated effects, properly exercised their discretion to certify the EIR and to approve the Master Plan for CSUMB depends in large part on whether they have correctly understood the nature and scope of their obligation to contribute to FORA. We thus briefly summarize the relevant portion of the appendix, which effectively defined the issues in the lower courts and anticipated the Trustees’ arguments in the present proceeding.

CSUMB’s land, the Trustees observe in the appendix to the EIR, is exempt from taxation as “[p]roperty owned by the State” under article XIII, section 3, subdivision (a) of the California Constitution. This constitutional provision has been interpreted as implicitly immunizing state-owned property from special assessments imposed by local governments, except as authorized by the Legislature. (San Marcos Water Dist. v. San Marcos Unified School Dist. (1986) 42 Cal.3d 154, 160-161 (San Marcos).) In reaction to San Marcos, the Legislature passed a law (chapter 13.7 of the Government Code, beginning with section 54999) authorizing any public agency that provides public utility services to a public educational agency to impose a “[c]apital facilities fee” on the latter “after agreement has been reached between the two agencies through negotiations entered into by both parties.” (Gov. Code, § 54999.3, subd. (b).) This law, which addresses only fees intended to “pay the capital cost of a public utility facility” (id., § 54999.1, subd. (b)), defines “ ‘[p]ublic utility facility’ ” for these purposes as “a facility for the provision of water, light, heat, communications, power, or garbage service, for flood control, drainage or sanitary purposes, or for sewage collection, treatment, or disposal” (id., subd. (d)). The FORA Act, in turn, provides that “[t]he applicability of any capital facilities fees imposed under this title [i.e., the FORA Act] to public educational agencies shall be subject to the provisions of Chapter 13.7 [of the Government Code] (commencing with section 54999) . . . .” (Gov. Code, § 67685.)

Based on these authorities, the Trustees conclude in the appendix that the Legislature has in effect authorized FORA to impose fees on CSUMB for the purposes mentioned in chapter 13.7 of the Government Code (e.g., water, drainage and sewage; see id., § 54999.1, subd. (d)) but not for any other purposes not mentioned (e.g., roads and fire protection). Any payment to FORA for a purpose not mentioned in the section, the Trustees conclude, even a voluntary payment made in order to mitigate CSUMB’s environmental effects, would amount to an assessment prohibited by the state Constitution, as interpreted in San Marcos, supra, 42 Cal.3d 154, and constitute a gift of public funds. Having thus concluded that any contribution by CSUMB to mitigate the campus’s effects on roads and fire protection would be unlawful, the Trustees further conclude that to mitigate these effects is “infeasible,” presumably for “legal” reasons (see Pub. Resources Code, § 21081, subd. (a)(3)), and thus not required by CEQA because, in the Trustees’ view, overriding considerations justify proceeding with the project despite the unmitigated effects (see id., § 21081, subd. (b)).

A lengthy statement of overriding considerations accompanies the Trustees’ findings certifying the EIR and approving the Master Plan for CSUMB. In the statement, the Trustees reiterate the requirements of CEQA, the content of the EIR, the principal features of the Master Plan for CSUMB, and favorable public comments on the EIR. The following excerpts summarize some of the considerations underlying the Trustees’ conclusion that campus expansion will offer benefits that outweigh any remaining unmitigated effects on the environment: “The CSU has identified the need for a university in the Monterey Bay area that addresses the projected demand for postsecondary education in the state of California by accommodating 25,000 [FTE students] at buildout. CSU recognizes official projections of future increases in the number of students to be served . . . which cannot be accommodated within [the] existing system capacity of the CSU. The reuse of Fort Ord for this purpose is particularly advantageous to the CSU because of the difficulty in acquiring campus-size parcels, the value of existing development on the site, and the attractive location of the site in the Monterey area. The master plan has been designed to provide an institution that will effectively serve the mission of the CSU system.” In addition, development of the campus will offer higher education to “historically underrepresented populations and cultures of the state of California,” “foster economic revitalization of a region impacted by closure of the largest residential military training facility in the nation” and “create job opportunities for approximately 2,760 faculty and staff as well as significant additional employment in university support activities.”

On May 13, 1998, the Trustees adopted resolutions approving the statement of overriding considerations, certifying the EIR, and approving the Master Plan for CSUMB. Thereafter, FORA and the City of Marina filed separate petitions for writ of mandate challenging the Trustees’ actions. The petitions alleged, among other things, that the Trustees had (1) failed to identify and adopt existing, feasible measures to mitigate significant effects on the environment described in the EIR, (2) improperly certified the EIR and approved the Master Plan despite the availability of feasible mitigation measures, (3) improperly disclaimed responsibility for mitigating CSUMB’s environmental effects, and (4) improperly relied on a statement of overriding considerations to justify certifying the EIR and approving the Master Plan.

The superior court granted the petitions, issued its writ of mandate directing the Trustees to vacate their actions certifying the EIR and approving the Master Plan, and to set aside the EIR’s statement of overriding considerations. A divided Court of Appeal reversed. We granted FORA’s petition for review.

II. DISCUSSION

The question before us is whether the Trustees have properly certified the EIR for CSUMB and, on that basis, approved the Master Plan. FORA contends the Trustees’ decision must be vacated because three findings critical to their decision depend on an erroneous legal assumption, namely, that the California Constitution precludes them from contributing to FORA, even for the purpose of mitigating the environmental effects identified in the EIR, except as expressly permitted by chapter 13.7 of the Government Code (§ 54999 et seq.). The first two challenged findings are (1) that the Trustees cannot feasibly mitigate CSUMB’s significant environmental effects and (2) that to mitigate CSUMB’s effects is not the Trustees’ responsibility. These two findings have, in turn, necessitated the third, which is (3) that overriding considerations justify certifying the EIR and approving the Master Plan despite the remaining unmitigated effects. (See generally Pub. Resources Code, § 21081.) We conclude FORA is correct and that the Trustees have abused their discretion.
We review the Trustees’ decision, as CEQA directs, under the abuse of discretion standard. (See Pub. Resources Code, § 21168.5.) For these purposes, “[a]buse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” (Ibid.) Although this standard would command much deference to factual and environmental conclusions in the EIR based on conflicting evidence (e.g., Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d 376, 393, 409), no such conclusions are here at issue. At issue, rather, are the Trustees’ findings that mitigation is infeasible and that mitigation is not their responsibility. These findings depend on a disputed question of law—a type of question we review de novo. De novo review of legal questions is consistent with the abuse of discretion standard. In the context of review for abuse of discretion, an agency’s “use of an erroneous legal standard constitutes a failure to proceed in a manner required by law.” (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 88; see also Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 118 [“questions of interpretation or application of the requirements of CEQA are matters of law”].) De novo review of legal questions is also consistent with the principle that, in CEQA cases, “ ‘[t]he court does not pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an `informative document.’ ” (Laurel Heights Improvement Assn. v. Regents of University of California, supra, at p. 392, quoting County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189.) An EIR that incorrectly disclaims the power and duty to mitigate identified environmental effects based on erroneous legal assumptions is not sufficient as an informative document.

A. Is Mitigation Infeasible?

1. Is mitigation infeasible because the Trustees may not lawfully contribute to FORA?

We consider first the Trustees’ finding that they cannot feasibly mitigate the environmental effects of their plan to expand the CSUMB campus. CEQA defines “ ‘[f]easible’ ” for these purposes as “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (Pub. Resources Code, § 21061.1.) To this list, the CEQA Guidelines add “legal” factors. (CEQA Guidelines, § 15364; see also Pub. Resources Code, § 21081, subd. (a)(3).) The Trustees, by arguing the state Constitution prohibits them from voluntarily contributing funds to FORA as a form of mitigation, in effect take the position that such contributions are legally infeasible. We discuss here only the permissibility of voluntary payments by the Trustees. Some of the public financing laws that FORA has the power to invoke (see Gov. Code, § 67679, subd. (d)) would, as the Trustees acknowledge, permit FORA to assess state-owned property such as the CSUMB campus. FORA has not, however, attempted to impose an assessment.

The plain language of the California Constitution does not support the Trustees’ position that voluntary mitigation payments are impermissible. The provision on which the Trustees rely, article XIII, section 3, subdivision (a), provides simply that “[p]roperty owned by the State” is “exempt from property taxation . . . .” FORA has not imposed a tax on the Trustees. We have, however, interpreted the same constitutional provision as implicitly exempting publicly owned property from special assessments made without legislative authority. (Inglewood v. County of Los Angeles (1929) 207 Cal. 697, 703-704; see also Regents of University of California v. City of Los Angeles (1979) 100 Cal.App.3d 547, 549; County of Riverside v. Idyllwild County Water Dist. (1978) 84 Cal.App.3d 655, 659-660; cf. Regents of University of California v. City of Los Angeles (1983) 148 Cal.App.3d 451, 454, fn. 2 [questioning whether the exemption is grounded in policy considerations rather than the Constitution].) We reaffirmed this conclusion in San Marcos, supra, 42 Cal.3d 154, 160-161, the case on which the Trustees principally rely. The Trustees, as noted, argue based on San Marcos that any payment by themselves to FORA for the purpose of improving Fort Ord’s infrastructure would constitute a special assessment prohibited in the absence of legislative authority. The Trustees find in chapter 13.7 of the Government Code (§ 54999 et seq.) legislative authority for payments related to subjects mentioned therein, such as water, drainage and sewage collection (id., § 54999.1, subd. (d)), but not for any purpose not mentioned, such as roads and fire protection.

The Trustees have misinterpreted San Marcos, supra, 42 Cal.3d 154. The decision addresses only compulsory charges imposed by one public entity on another. The case has nothing to say about a discretionary payment made by a public agency that voluntarily chooses that method of discharging its duty under CEQA to mitigate the environmental effects of its project. Because the Trustees’ interpretation of San Marcos critically underlies their position in this case, we examine the decision and its consequences in detail.

At issue in San Marcos, supra, 42 Cal.3d 154, was the validity of a “capacity fee” (id., at p. 157) imposed by a public water district on a public school district. The specific question was whether the capacity fee was a user fee, which the school district conceded it would have to pay, or a special assessment, from which the school district was exempt under the cases cited above. The court held the school district was exempt. The purpose of the fee was not to pay for water service but to provide a source of funds for capital improvements to the water system. (Id., at p. 159.) The capacity fee thus fit the definition of a special assessment as “ ‘a compulsory charge placed by [the government] upon real property within a pre-determined district, made under express legislative authority for defraying in whole or in part the expense of a permanent public improvement therein . . . .’ ” (San Marcos, at p. 161, quoting Spring Street Co. v. City of Los Angeles (1915) 170 Cal. 24, 29.) In applying this definition, the court “look[ed] to the purpose of the fee being charged, and not simply to the form of the fee, a matter which can be easily manipulated.” (San Marcos, at p. 163.) Accordingly, the court attributed no significance to the fact the water district had calculated the charge by reference to the volume of water the school district anticipated using—a characteristic typical of user fees. While the assessment’s form thus caused it to resemble a user fee in some respects, the water district was not permitted “ ‘to do indirectly that which it could not do directly.’ ” (Ibid., quoting County of Riverside v. Idyllwild County Water Dist., supra, 84 Cal.App.3d 655, 659-660.)

In summary, the court in San Marcos, supra, 42 Cal.3d 154, announced two holdings: the court reiterated the existing rule that publicly owned property was exempt from special assessment absent “ ‘positive legislative authority therefor’ ” (id., at p. 161, quoting Inglewood v. County of Los Angeles, supra, 207 Cal. 697, 704), and the court determined that the particular charge at issue was an assessment rather than a user fee (San Marcos, at pp. 163-165). The court found analogous support for its conclusions in prior decisions identifying “[t]he rationale behind a public entity’s exemption from property taxes and special assessments [as being] to prevent one tax-supported entity from siphoning tax money from another such entity; the end result of such a process [possibly being] unnecessary administrative costs and no actual gain in tax revenues.” (San Marcos, at p. 161, citing Eisley v. Mohan (1948) 31 Cal.2d 637, 642.) The court also acknowledged, perhaps bluntly, one of the more significant consequences of its holding: “Our conclusion does not mean,” the court wrote, “that the water district cannot collect money for capital improvements from its customers; it simply means that the private customers will pay the entire cost of capital improvements. Public entities, such as the school district, will not be required to allocate their limited tax revenues to pay for capital improvements built by the sewer district.” (San Marcos, at p. 158.)

The Legislature promptly reacted to the decision in San Marcos, supra, 42 Cal.3d 154, by authorizing public utilities to charge public-entity customers their fair share of the utilities’ capital costs and by ratifying fees previously imposed for that purpose. Under chapter 13.7 of the Government Code (§ 54999 et seq.), enacted in response to San Marcos, “[a]ny public agency providing public utility service” may impose on any public agency a “capital facilities fee” (id., § 54999.2), meaning “any nondiscriminatory charge to pay the capital cost of a public utility facility” (id., § 54999.1, subd. (b)). A “ ‘[p]ublic utility facility’ ” for these purposes is “a facility for the provision of water, light, heat, communications, power, or garbage service, for flood control, drainage or sanitary purposes, or for sewage collection, treatment, or disposal.” (Id., § 54999.1, subd. (d).) Motivating these changes to the law was the Legislature’s perception that public utilities and their public-entity customers, on the whole, had not shared the court’s understanding of the law. “[M]any public entities that provide public utility service,” the Legislature explained, “have imposed capital facilities fees applicable to users of public utility facilities in order to equitably apportion the cost of capital facilities construction or expansion required by all public and private users of the facilities.” As a result of San Marcos, however, “the fiscal stability and service capabilities of the affected public utility service agencies which have in good faith collected and spent these fees for capital improvements are seriously impaired as is the ability to finance essential future facilities.” (Gov. Code, § 54999, subd. (a).)

Against this background, we may easily reject the Trustees’ argument that they may not lawfully contribute to FORA as a way of discharging their obligation under CEQA to mitigate the environmental effects of their project to expand CSUMB. The Trustees’ three-part argument may be summarized as follows: (1) Any payment by the Trustees to FORA for the purpose of capital improvement in Fort Ord is an assessment, regardless of form; (2) public agencies are exempt from assessment except as permitted by the Legislature; and (3) the Legislature has permitted assessments only for the purposes set out in chapter 13.7 of the Government Code (§ 54999 et seq.).

The Trustees err crucially at the outset. An assessment connotes, at the very least, a compulsory charge imposed by the government on real property. (Knox v. City of Orland (1992) 4 Cal.4th 132, 141; see also Southern Cal. Rapid Transit Dist. v. Bolen (1992) 1 Cal.4th 654, 660; San Marcos, supra, 42 Cal.3d 154, 161; Spring Street Co. v. City of Los Angeles, supra, 170 Cal. 24, 29.) FORA has imposed no charge on the Trustees, let alone a compulsory one. As part of its planning process, FORA has made a provisional effort to estimate the Trustees’ fair share of the cost of infrastructure improvements, but FORA has taken no steps to create an enforceable legal obligation to pay. Indeed, FORA disclaims any intention to impose a charge on the Trustees and looks instead exclusively to a negotiated payment. This case is not a collection action or an action to validate an assessment. Instead, FORA claims the Trustees have abused their discretion under CEQA by certifying an EIR that improperly fails to identify voluntary contributions to FORA as a feasible method of mitigating the environmental effects of their project to expand CSUMB.

In other words, the question of payment arises not because FORA has imposed a charge (it has not), but because CEQA requires the Trustees to avoid or mitigate, if feasible, the significant environmental effects of their project (Pub. Resources Code, § 21002.1, subd. (b)) and because payments to FORA may represent a feasible form of mitigation. To illustrate the point, if campus expansion requires that roads or sewers be improved, the Trustees may do the work themselves on campus, but they have no authority to build roads or sewers off campus on land that belongs to others. Yet the Trustees are not thereby excused from the duty to mitigate or avoid CSUMB’s off-campus effects on traffic or wastewater management, because CEQA requires a public agency to mitigate or avoid its projects’ significant effects not just on the agency’s own property but “on the environment” (Pub. Resources Code, § 21002.1, subd. (b), italics added), with “environment” defined for these purposes as “the physical conditions which exist within the area which will be affected by a proposed project” (id., § 21060.5, italics added). Thus, if the Trustees cannot adequately mitigate or avoid CSUMB’s off-campus environmental effects by performing acts on campus (as by reducing sufficiently the use of automobiles or the volume of sewage), then to pay a third party such as FORA to perform the necessary acts off campus may well represent a feasible alternative. A payment made under these circumstances can properly be described neither as compulsory nor, for that reason, as an assessment.

Arguing to the contrary, the Trustees emphasize the court’s statement in San Marcos, supra, 42 Cal.3d 154, 163, that courts will identify an assessment by “look[ing] to the purpose of the fee being charged, and not simply to the form of the fee, a matter which can be easily manipulated.” Based on this statement, the Trustees argue that a voluntary payment made to fund projects that might also be funded by an assessment, such as infrastructure projects, must be considered an assessment for all purposes. The San Marcos court announced no such conclusion. Instead, the court made the quoted statement in the context of determining whether an admittedly compulsory charge was a user fee or an assessment. Nothing in San Marcos speaks to voluntary payments or purports to address or narrow any public agency’s duties under CEQA.

The Trustees also seek to draw support from the court’s statement in San Marcos, supra, 42 Cal.3d 154, of the reason traditionally thought to underlie the rule exempting public property from taxation, i.e., that the exemption “prevent[s] one tax-supported entity from siphoning tax money from another such entity; the end result of such a process [possibly being] unnecessary administrative costs and no actual gain in tax revenues.” (Id., at p. 161.) Inviting an analogy, the Trustees point out that any payment by CSU to FORA for infrastructure improvements will reduce the amount of money available to CSU for its core educational functions. The Trustees read too much into San Marcos. While there does exist a general rule to the effect that “[p]roperty owned by the State” is exempt from taxation (Cal. Const., art. XIII, § 3, subd. (a)), no rule precludes a public entity from sharing with another the cost of improvements benefiting both. Furthermore, while education may be CSU’s core function, to avoid or mitigate the environmental effects of its projects is also one of CSU’s functions. This is the plain import of CEQA, in which the Legislature has commanded that “[e]ach public agency shall mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so.” (Pub. Resources Code, § 21002.1, subd. (b), italics added; see also id., § 21002 [declaring the same obligation to be “the policy of the state”].) Nothing in San Marcos can fairly be read as addressing, much less narrowing, a public agency’s obligations under CEQA.

The Trustees, as noted, are willing to contribute to FORA for the limited purpose of mitigating CSUMB’s effects on drainage, water supply, and wastewater management under the terms of chapter 13.7 of the Government Code (§ 54999 et seq.). Chapter 13.7, as already explained, contains the law the Legislature passed in the wake of San Marcos, supra, 42 Cal.3d 154, authorizing public utilities to charge public-entity customers their fair share of the utilities’ capital costs. Under the law, “any public agency proposing to initially impose a capital facilities fee . . . may do so after agreement has been reached between the two agencies through negotiations entered into by both parties.” (Gov. Code, § 54999.3, subd. (b).) In such a case, “[t]he public agency imposing . . . the capital facilities fee has the burden of producing evidence to establish that the capital facilities fee is nondiscriminatory and that the amount of the capital facilities fee does not exceed the amount necessary to provide capital facilities for which the fee is charged.” (Id., subd. (c).) The FORA Act expressly invokes this negotiative process by specifying that “[t]he applicability of any capital facilities fees imposed under this title [i.e., the FORA Act] to public educational agencies shall be subject to the provisions of Chapter 13.7 . . . .” (Gov. Code, § 67685.)

Because FORA has not imposed or sought to impose a capital facilities fee on the Trustees, chapter 13.7 does not literally apply. That having been said, we see no reason why an agreement between the Trustees and FORA regarding a voluntary payment negotiated according to the procedure set out in chapter 13.7 for the purpose of mitigating specified environmental effects (i.e., water supply, drainage and wastewater management) would not satisfy the Trustees’ CEQA obligations as to those effects. While the amount determined by negotiation may not equal the amount FORA originally projected, for its own planning purposes, that the Trustees would pay, nothing in chapter 13.7 of the Government Code, CEQA or the FORA Act permits FORA unilaterally to determine the amount of any voluntary contribution the Trustees may choose to make as a way of satisfying their obligation under CEQA to mitigate the environmental effects of their project. To the contrary, the Trustees as the lead agency under CEQA have the power and duty to assess the adequacy of mitigation measures, subject only to judicial review for abuse of discretion. (See Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d 376, 393.) Furthermore, nothing in chapter 13.7 of the Government Code, CEQA or the FORA Act obliges the Trustees to pay more than is necessary to mitigate CSUMB’s effects. Certainly the Trustees need not pay to mitigate effects caused by other users of the base. To the contrary, CEQA requires that mitigation measures “be ‘roughly proportional’ to the impacts of the project.” (CEQA Guidelines, § 15126.4, subd. (a)(4)(B), citing Dolan v. City of Tigard (1994) 512 U.S. 374; cf. id., at p. 391.)

Finally on this point, the Trustees argue that chapter 13.7 of the Government Code (§ 54999 et seq.) and the FORA Act (id., § 67650 et seq.), which specifically authorize FORA to impose on the Trustees a negotiated fee for certain purposes (e.g., water supply, drainage and wastewater management), suggest the Legislature must have contemplated the Trustees would have no obligation to contribute to FORA for other purposes (e.g., the cost of improving roads and fire protection). We discern in the cited provisions, however, no evidence of a legislative intent to bar the Trustees from voluntarily contributing, as a way of meeting their CEQA obligations, their fair share of the cost of improvements to roads and fire protection necessitated by CSUMB’s expansion. On this point the FORA Act, as noted, provides simply that “[t]he applicability of any capital facilities fee imposed under this title to public educational agencies shall be subject to the provisions of Chapter 13.7 [of the same code].” (Gov. Code, § 67685, italics added.) Chapter 13.7, in turn, speaks only of fees “impose[d]” (id., § 54999.3, subd. (b), italics added) by public utilities. Because FORA has imposed no fee on the Trustees, neither Government Code section 67685 nor chapter 13.7 has any literal application to the present case. Moreover, neither law purports to limit the Trustees’ independent obligation under CEQA to protect the physical environment from the effects of their project to expand the CSUMB campus.

2. Is mitigation infeasible because a contribution by the Trustees to FORA would amount to a prohibited gift of public funds?

The Trustees next argue that any payment to FORA made otherwise than under Government Code chapter 13.7 (§ 54999 et seq.) would constitute an illegal gift of public funds. (See Cal. Const., art. XVI, § 6.) The argument invokes the court’s statement in San Marcos, supra, 42 Cal.3d 154, that the ability of the school district in that case to “agree to pay [the disputed capacity] charge depend[ed] upon whether the [water] district ha[d] the power to impose it,” and that payment of an invalid charge “would amount to a ‘gift of public funds’ in contravention of article XVI, section 6 of the California Constitution.” (San Marcos, at p. 167, quoting County of Riverside v. Idyllwild County Water Dist., supra, 84 Cal.App.3d 655, 660.) We have, however, already rejected the central premise of this argument, which is that a voluntary payment by the Trustees would constitute an assessment.

In any event, the relevant law makes clear that a payment by the Trustees for the purpose of mitigating CSUMB’s environmental effects would not constitute an unlawful gift of public funds. “It is well settled that, in determining whether an appropriation of public funds or property is to be considered a gift, the primary question is whether the funds are to be used for a ‘public’ or a ‘private’ purpose. If they are for a ‘public purpose’, they are not a gift within the meaning of [the Constitution].” (County of Alameda v. Janssen (1940) 16 Cal.2d 276, 281.) Such a payment by the Trustees would have the public purpose of discharging their duty as a public agency, under the express terms of CEQA, to “mitigate or avoid the significant effects on the environment of projects that [they] carr[y] out or approve[] whenever it is feasible to do so.” (Pub. Resources Code, § 21002.1, subd. (b).)

3. Is mitigation infeasible because the Trustees cannot guarantee that FORA will actually implement the proposed infrastructure improvements?

As a final reason why they cannot feasibly mitigate CSUMB’s environmental effects by voluntarily contributing to FORA, the Trustees argue they cannot guarantee that FORA will actually implement the infrastructure improvements proposed in the Reuse Plan. The argument is not persuasive.
In certifying the EIR and approving CSUMB’s Master Plan, the Trustees specifically found that the infrastructure improvements proposed by FORA constitute the “specific measure[s]” necessary to mitigate each of CSUMB’s corresponding environmental impacts to the level of insignificance. The Trustees did not find that mitigation of these impacts was feasible, however, in part because of asserted doubts about FORA’s ability to fund and implement the proposed improvements. CEQA, as noted, defines a “ ‘[f]easible’ ” mitigation measure as one that is “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (Pub. Resources Code, § 21061.1; see also CEQA Guidelines, § 15364.) Invoking this definition, the Trustees found in the EIR as to each remaining environmental impact that “implementation of the regional mitigation . . . is currently disputed, [and that] mitigation of the impact to a less than significant level cannot be assured by CSU.”

The Trustees explained their position in more detail in response to public comments on their EIR: “Although all parties to the MOA[ ] will agree that the determined contributions by CSUMB are intended to mitigate the offsite impacts contributed by development of the Master Plan, it is acknowledged that CSUMB’s contribution represents only a portion of the funding needed to implement the regional improvements. Similar payments will need to be made by other jurisdictions contributing to regional impacts in order for the improvements to be implemented. In addition, ultimate implementation of the improvement program is under the responsibility of FORA, and cannot be controlled or assured by the University. For these reasons, . . . the [EIR] determine[s] that the significant impacts on drainage, water supply, traffic, wastewater generation, and fire protection, identified as caused by the Master Plan, will remain significant and unavoidable. These impacts will therefore require the adoption of a Statement of Overriding Conditions by the [Trustees] in compliance with CEQA.”

The presently identified, unavoidable uncertainties affecting the funding and implementation of the infrastructure improvements FORA has proposed in its Reuse Plan do not render voluntary contributions to FORA by the Trustees infeasible as a method of mitigating CSUMB’s effects. Both the CEQA Guidelines and judicial decisions recognize that a project proponent may satisfy its duty to mitigate its own portion of a cumulative environmental impact by contributing to a regional mitigation fund. Under the Guidelines, “a project’s contribution to a significant cumulative impact” may properly be considered “less than cumulatively considerable and thus . . . not significant” “if the project is required to implement or fund its fair share of a mitigation measure or measures designed to alleviate the cumulative impact.” (CEQA Guidelines, § 15130, subd. (a)(3).) Similarly, courts have found fee-based mitigation programs for cumulative impacts, based on fair-share infrastructure contributions by individual projects, to constitute adequate mitigation measures under CEQA. (E.g., Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1188; Save Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th 99, 140.)
“Of course a commitment to pay fees without any evidence that mitigation will actually occur is inadequate.” (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th 99, 140; see also Kings County Farm Bureau v. City of Hanford (1990) 221 Cal. App.3d 692, 727-728 [lacking evidence water would be available for purchase, an agreement to purchase replacement water did not adequately mitigate groundwater depletion].) There is, however, no reason to doubt that FORA will meet its statutory obligation as the government of Fort Ord to prepare the base for civilian development by constructing whatever public capital facilities are necessary for that purpose. (See Gov. Code, § 67679.) As noted, FORA plans to implement the improvements over a period of several years, as increasing land use necessitates them and as funding becomes available. To enable this task to be accomplished, the Legislature has given FORA a broad array of fundraising powers, including the power to levy assessments and development fees, to share tax revenue with its local-government member agencies, and to sell and lease property. (See Gov. Code, §§ 67678, subd. (a), 67679, subds. (c)-(e), 67691, 67692.) Furthermore, the law specifically directs FORA to use its powers to ensure the success of its statutory mission (e.g., Gov. Code, § 67679, subd. (a)(1) [FORA must “undertake to plan for and arrange the provision of [public capital] facilities, including arranging for their financing and construction”]), and the courts ordinarily presume that the government, in this instance FORA, will comply with the law (e.g., City of Beaumont v. Beaumont Irr. Dist. (1965) 63 Cal.2d 291, 297; Save Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th 99, 141).

By way of analogy, the court in Save Our Peninsula Committee v. Monterey Bd. of Supervisors, supra, 87 Cal.App.4th 99, held that a county had adequately ensured the mitigation of traffic congestion effects by “provid[ing] for improvements to be constructed as the traffic triggering the need for the improvements exceeded a projected threshold and the funds to pay for the improvements were generated by the new development.” (Id., at p. 141.) CEQA, the court explained, required not “a time-specific schedule for the County to complete specified road improvements” (ibid.) but only “that there be a reasonable plan for mitigation” (ibid.). FORA’s Reuse Plan satisfies that criterion. The Trustees’ assumption that CEQA requires more is an error of law invalidating their finding that voluntary mitigation payments to FORA do not represent a feasible method of mitigating CSU’s off-campus environmental effects. (No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d 68, 88 [an agency’s “use of an erroneous legal standard constitutes a failure to proceed in a manner required by law”]; see also Save Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th 99, 118 [“questions of interpretation or application of the requirements of CEQA are matters of law”].)

B. Is Mitigation Exclusively the Responsibility of FORA?

CEQA, as previously noted, does not require a public agency to undertake identified mitigation measures, even if those measures are necessary to address the project’s significant environmental effects, if the agency finds that the measures “are within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency.” (Pub. Resources Code, § 21081, subd. (a)(2).) The Trustees have made such a finding with respect to the measures necessary to mitigate CSUMB’s projected effects on drainage, water supply, wastewater management, traffic, and fire protection. As to each such effect, the Trustees have found that “the specific measure to mitigate [each] impact to a level of insignificance is to implement the planned regional FORA . . . improvements,” and that “[i]mplementation of the planned regional improvements is FORA’s responsibility.”

Certainly FORA has responsibility for implementing the infrastructure improvements it has proposed. (See Gov. Code, § 67679.) Just as certainly, however, the FORA Act contemplates that the costs of those improvements will be borne by those who benefit from them. (See ibid.) A finding by a lead agency under Public Resources Code section 21081, subdivision (a)(2), disclaiming the responsibility to mitigate environmental effects is permissible only when the other agency said to have responsibility has exclusive responsibility. As the CEQA Guidelines explain, “[t]he finding in subsection (a)(2) shall not be made if the agency making the finding has concurrent jurisdiction with another agency to deal with identified feasible mitigation measures or alternatives.” (CEQA Guidelines, § 15091, subd. (c).) The Guidelines’ logical interpretation of CEQA on this point “avoids the problem of agencies deferring to each other, with the result that no agency deals with the problem. This result would be contrary to the strong policy [requiring the mitigation or avoidance of significant environmental effects] declared in Sections 21002 and 21002.1 of the statute.” (Discussion of Resources Agency following CEQA Guidelines, § 15091; see also 1 Kostka, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2005) § 17.19, pp. 821-823.)

The Trustees offer two arguments in support of their finding disclaiming responsibility for the measures necessary to mitigate CSUMB’s off-campus environmental effects. Neither withstands close scrutiny. The Trustees’ first argument—that they may not lawfully contribute to FORA in view of San Marcos, supra, 42 Cal.3d 154, and the constitutional exemption of state property from taxation (Cal. Const., art. XIII, § 3, subd. (a))—has already been considered and rejected. The Trustees’ second argument—that they lack the power to construct infrastructure improvements away from campus on land they do not own and control—is beside the point. Certainly the Trustees may not enter the land of others to widen roads and lay sewer pipe; CEQA gives the Trustees no such power. (See Pub. Resources Code, § 21004 [“[i]n mitigating or avoiding a significant effect of a project on the environment, a public agency may exercise only those express or implied powers provided by law other than this division.”].) CEQA does not, however, as we have explained, limit a public agency’s obligation to mitigate or avoid significant environmental effects to effects occurring on the agency’s own property. (See Pub. Resources Code, §§ 21002.1, subd. (b), 21060.5.) CEQA also provides that “[a]ll state agencies . . . shall request in their budgets the funds necessary to protect the environment in relation to problems caused by their activities.” (Id., § 21106.) Thus, as we have also explained, if the Trustees cannot adequately mitigate or avoid CSUMB’s off-campus environmental effects by performing acts on the campus, then to pay a third party such as FORA to perform the necessary acts off campus may well represent a feasible alternative.

To be clear, we do not hold that the duty of a public agency to mitigate or avoid significant environmental effects (Pub. Resources Code, § 21002.1, subd. (b)), combined with the duty to ask the Legislature for money to do so (id., § 21106), will always give a public agency that is undertaking a project with environmental effects shared responsibility for mitigation measures another agency must implement. Some mitigation measures cannot be purchased, such as permits that another agency has the sole discretion to grant or refuse. Moreover, a state agency’s power to mitigate its project’s effects through voluntary mitigation payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist. For the same reason, however, for the Trustees to disclaim responsibility for making such payments before they have complied with their statutory obligation to ask the Legislature for the necessary funds is premature, at the very least. The superior court found no evidence the Trustees had asked the Legislature for the funds. In their brief to this court, the Trustees acknowledge they did not budget for payments they assumed would constitute invalid assessments under San Marcos, supra, 42 Cal.3d 154. That assumption, as we have explained, is invalid.

C. Do Overriding Circumstances Justify Approving the Campus Master Plan?

When a public agency has found that a project’s significant environmental effects cannot feasibly be mitigated, the agency may nevertheless proceed with the project if it also finds “that specific overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects on the environment.” (Pub. Resources Code, § 21081, subd. (b).) The Trustees, as noted, have made such a finding with respect to each of the remaining, unmitigated environmental impacts on drainage, water supply, wastewater management, traffic and fire protection.

If we agreed with the Trustees that mitigation were infeasible for the reasons given in the findings, i.e., that the Trustees may not legally contribute to FORA and that the Trustees cannot ensure that FORA will actually construct infrastructure improvements—we would give much deference to the Trustees’ weighing of the project’s benefits against the remaining environmental effects. Generally speaking, “a court’s proper role in reviewing a challenged EIR is not to determine whether the EIR’s ultimate conclusions are correct but only whether they are supported by substantial evidence and whether the EIR is sufficient as an informational document.” (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d 376, 407.) Moreover, an agency’s decision that the specific benefits a project offers outweigh any environmental effects that cannot feasibly be mitigated, while subject to review for abuse of discretion (Pub. Resources Code, § 21168.5), lies at the core of the lead agency’s discretionary responsibility under CEQA and is, for that reason, not lightly to be overturned. (Cf. Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d 376, 392 [court reviews the EIR’s sufficiency as an informative document and not the correctness of its environmental conclusions].)

In this case, however, the Trustee’s statement of overriding considerations is invalid for a reason that does not require us to reweigh benefits and detriments, or to inquire into the statement’s factual basis. A statement of overriding considerations is required, and offers a proper basis for approving a project despite the existence of unmitigated environmental effects, only when the measures necessary to mitigate or avoid those effects have properly been found to be infeasible. (Pub. Resources Code, § 21081, subd. (b).) Given our conclusion the Trustees have abused their discretion in determining that CSUMB’s remaining effects cannot feasibly be mitigated, that the Trustees’ statement of overriding circumstances is invalid necessarily follows. CEQA does not authorize an agency to proceed with a project that will have significant, unmitigated effects on the environment, based simply on a weighing of those effects against the project’s benefits, unless the measures necessary to mitigate those effects are truly infeasible. Such a rule, even were it not wholly inconsistent with the relevant statute (id., § 21081, subd. (b)), would tend to displace the fundamental obligation of “[e]ach public agency [to] mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so” (id., § 21002.1, subd. (b)). This conclusion does not, however, preclude the Trustees from including in a revised EIR a statement of overriding considerations regarding environmental effects as to which they have properly found mitigation to be infeasible for reasons other than those we have rejected.

III. CONCLUSION

From the foregoing discussion it follows that the Trustees must be directed to vacate their actions certifying the EIR and approving the Master Plan and set aside the EIR’s statement of overriding circumstances. The superior court’s writ of mandate does order such relief. The writ is, however, incorrect in one respect. In describing the principles that would apply should the Trustees decide to make voluntary mitigation payments to FORA, the court wrote that “CSUMB’s proportional share of the cumulative impacts on public capital facilities in the region necessary to mitigate the significant adverse environmental impacts of the CMP shall be determined by [FORA] . . . .” (Italics added.) To the contrary, having chosen not to assess the campus but instead to rely on the Trustees to comply with their CEQA obligation to mitigate or avoid the environmental effects of their project, FORA has no power to dictate the manner in which the Trustees exercise their discretion. Neither do the remedial provisions of CEQA “authorize a court to direct any public agency to exercise its discretion in any particular way.” (Pub. Resources Code, § 21168.9, subd. (c).) CEQA requires only that any mitigation measures the Trustees adopt be adequate. If FORA wishes to compel the Trustees to contribute a specific amount to infrastructure improvement projects, FORA is free to proceed by exercising the powers specifically granted in the FORA Act (e.g., Gov. Code, § 67679, subd. (d)), and in the public financing statutes to which the act refers (ibid.), to impose a formal assessment on the CSUMB campus, complying of course with the procedural requirements set out in those statutes and in the California Constitution (e.g., art. XIII D, § 1 et seq.).

IV. DISPOSITION

The judgment of the Court of Appeals is reversed and the cause remanded to that court with directions to order the superior court to vacate its writ of mandate and to issue a new writ consistent with the views set forth in this opinion.
WERDEGAR, J.

WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
MORENO, J.
CORRIGAN, J.

CONCURRING OPINION BY CHIN, J.

I concur in the judgment and in most of the majority opinion’s reasoning. I write separately to explain my reasons for agreeing that the Board of Trustees of the California State University (Trustees) may not rely on Public Resources Code section 21081, subdivision (a)(2), and to express concern about the majority’s discussion of this issue.

Under the California Environmental Quality Act (CEQA) (§ 21000 et seq.), when a certified environmental impact report identifies significant environmental effects of a proposed project, section 21081, subdivision (a)(2), permits a public agency to approve or carry out the project if it finds that “changes or alterations” in the project that would mitigate or avoid the identified environmental effects “are within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency.”

The Trustees, who made such a finding here, argue that this provision applies because, under the Fort Ord Reuse Authority Act (Gov. Code, § 67650 et seq.) (FORA Act), the Fort Ord Reuse Authority (FORA) has “exclusive authority to plan and construct off-campus local infrastructure improvements” and “the University lacks jurisdiction . . . to build off-site improvements.”

In my view, the Trustees err by focusing on the wrong question: Whether the Trustees, acting for the California State University (CSU), have any responsibility and jurisdiction regarding actual construction of the necessary off-campus infrastructure improvements. The particular mitigation measure at issue here—i.e., the proposed “change[] or alteration[]” in the project to mitigate or avoid the identified environmental effects (§ 21081, subd. (a)(2))—is not actual construction of the improvements, but is payment to FORA to help fund the improvements FORA intends to construct. Thus, the relevant question here in applying section 21081, subdivision (a)(2), is not, as the Trustees argue, whether they have jurisdiction actually “to build off-site improvements,” but is whether they have any responsibility and jurisdiction to help fund FORA’s construction of those improvements.

Based on provisions of the FORA Act and the Education Code, I conclude that the Trustees have such responsibility and jurisdiction. Regarding the former, the FORA Act declares the “financing . . . of the reuse of Fort Ord” to be “a matter of statewide importance.” (Gov. Code, § 67657, subd. (c).) It provides that FORA’s Fort Ord reuse plan “shall be the official local plan for the reuse of the base for all public purposes, including . . . funding by all state agencies.” (Gov. Code, § 67675, subd. (a), italics added.) It directs FORA to “arrang[e] for the[] financing” of—not to finance itself —“basewide public capital facilities” such as “roads.”

(Id., § 67679, subd. (a)(1).) It also authorizes FORA to “seek state and federal grants and loans or other assistance to help fund public facilities” (id., § 67679, subd. (c)), and to “enter into contracts and agreements as necessary to mitigate impacts of the reuse of Fort Ord.” (Id., §67680.5.) These provisions demonstrate the Legislature’s intent that funding of the necessary infrastructure improvements not be solely FORA’s responsibility, and that funding be provided, at least in part, by other public agencies.

Several provisions of the Education Code also are relevant to the Trustees’ responsibility and jurisdiction. The Education Code declares generally that “[t]he mission of the public segments of higher education . . . include[s] a broad responsibility to the public interest.” (Ed. Code, § 66010.5.) Of course, payments to FORA to help mitigate significant environmental impacts of the expansion project here at issue would serve the public interest. The Education Code also declares “the intent of the Governor and the Legislature, in cooperation with the Trustees,” to “[p]lace a major priority on resolving the serious problem of impacted and overcrowded classes, not only with respect to the [CSU], but throughout public postsecondary education.”

(Id., § 66015, subd. (a).) Consistent with this declared priority, the Education Code imposes on the CSU a duty “to plan that adequate spaces are available to accommodate all California resident students who are eligible and likely to apply to attend an appropriate place within the system.” (Id., § 66202.5.) It also grants the Trustees “full power and responsibility in the construction and development of any state university campus, and any buildings or other facilities or improvements connected with the [CSU].” (Id., § 66606.) Finally, it directs the Trustees to “expend all money appropriated for the support and maintenance of the [CSU]” (id., § 89750), and authorizes them to “enter into agreements with any public or private agency, officer, person, or institution, corporation, association, or foundation for the performance of acts or for the furnishing of services, facilities, materials, goods, supplies, or equipment by or for the trustees or for the joint performance of an act or function or the joint furnishing of services and facilities by the trustees and the other party to the agreement.” (Id., § 89036, subd. (a).) Based on these provisions, I have no trouble concluding that the Trustees have both responsibility and jurisdiction within the meaning of Public Resources Code section 21081, subdivision (a)(2), to contribute to the cost of off-site infrastructure improvements needed to mitigate significant environmental impacts of an expansion project designed, in part, to address the statutorily declared “priority on resolving the serious problem of impacted and overcrowded classes, not only with respect to the [CSU], but throughout public postsecondary education.” (Ed. Code, § 66015, subd. (a).)

I do not join the majority’s analysis of this issue insofar as it relies on several CEQA provisions to find that the Trustees have jurisdiction and responsibility within the meaning of section 21081, subdivision (a)(2). (Maj. opn., ante, at pp. 34-35.) The majority cites section 21002.1, subdivision (b), which requires “[e]ach public agency [to] mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so,” and section 21106, which requires “[a]ll state agencies . . . [to] request in their budgets the funds necessary to protect the environment in relation to problems caused by their activities.” (Maj. opn., ante, at pp. 34-35.) Because these two CEQA statutes apply to every state agency, the majority’s analysis substantially limits the circumstances under which a state agency may invoke section 21081, subdivision (a)(2). It is unclear to me the Legislature intended section 21081, subdivision (a)(2), to be read so narrowly. Because my analysis depends on non-CEQA provisions, I need not, and do not, address that question.

I also do not join the majority’s analysis insofar as it appears to suggest that a public agency lacks jurisdiction and responsibility within the meaning of section 21081, subdivision (a)(2), when “the Legislature does not appropriate” money requested to pay for mitigation measures. (Maj. opn., ante, at pp. 34-35.) To begin with, the discussion is dictum. As the majority notes, there is no evidence here the Trustees have even asked the Legislature for the necessary funds. (Maj. opn., ante, at p. 35.) Thus, it is both unnecessary and premature to express an opinion about whether the Legislature’s denial of a funding request would affect the Trustees’ jurisdiction and responsibility for purposes of applying section 21081, subdivision (a)(2).

The other reason I do not join the majority’s dictum is that I question its soundness. It is not clear to me that, for purposes of applying section 21081, subdivision (a)(2), a public agency has no responsibility or jurisdiction for a mitigation measure simply because the Legislature denies a specific request for money to pay for that mitigation measure. Here, for example, even were the Legislature to reject such a request, arguably, the Trustees would still have responsibility and jurisdiction to contribute to FORA with money from the CSU’s general operating fund. Moreover, the Legislature has expressly authorized the Trustees, at their discretion and “without the prior approval of any other state department or agency,” to “sell improvements located on the land at the . . . Monterey Bay campus that was transferred” from the federal government (Ed. Code, § 89010, subd. (a)) and to use proceeds from those sales “for the purposes of building, maintaining, and funding a campus . . . at Monterey Bay through expenditures for improvements to the campus . . . .” (Id., § 89010, subd. (b).) Arguably, by virtue of these provisions, even were the Trustees to make, and the Legislature to reject, a specific appropriation request regarding the off-campus improvements here at issue, the Trustees would have “the power” to make contributions to FORA for those improvements (maj. opn., ante, at p. 35) and would have jurisdiction and responsibility within the meaning of Public Resources Code section 21081, subdivision (a)(2), to make such contributions. Because of these substantive doubts, because we need not decide the question here, and because we have no briefing on the question, I decline to join the majority’s dictum.

CHIN, J.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion City of Marina v. Board of Trustees of California State University
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 109 Cal.App.4th 1179
Rehearing Granted

__________________________________________________________________________________

Opinion No. S117816
Date Filed: July 31, 2006
__________________________________________________________________________________

Court: Superior
County: Monterey
Judge: Richard M. Silver

__________________________________________________________________________________

Attorneys for Appellant:

Horvitz & Levy, John A. Taylor, Jr., Patricia Lofton; Miller, Starr & Regalia, Basil S. Shiber and Christian M. Carrigan for Defendant and Appellant.

James E. Holst, Alan C. Waltner and Jeffrey A. Blair for The Regents of the University of California as Amicus Curiae on behalf of Defendant and Appellant.

Miller Brown & Dannis, Marilyn J. Cleveland, Chad J. Graff and Kenneth S. Levy for Coalition for Adequate School Housing as Amicus Curiae on behalf of Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Lombardo & Gilles, Sheri L. Damon; Law Offices of Robert Wellington, Kenneth D. Buchert; Law Offices of Mary L. Hudson, and Mary L. Hudson for Plaintiffs and Respondents.

Manuela Albuquerque, City Attorney (Berkeley) and Zach Cowan, Assistant City Attorney, for League of California Cities and California State Association of Counties as Amici Curiae on behalf of Plaintiffs and Respondents.

McDonough Holland & Allen, Harriet A. Steiner and Kara K. Ueda for City of Davis as Amicus Curiae on behalf of Plaintiffs and Respondents.

Law Offices of Donald B. Mooney, Donald B Mooney; Law Offices of Marsha A. Burch and Marsha A. Burch for San Joaquin Raptor Rescue Center, Protect Our Water and Central Valley Safe Environmental Network as Amici Curiae on behalf of Plaintiffs and Respondents.

Norma Turner, Mary-Alice Coleman and Jeffrey A. Diamond for West Davis Neighbors as Amicus Curiae on behalf of Plaintiffs and Respondents.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Patricia Lofton
Horvitz & Levy
15760 Ventura Boulevard, 18th Floor
Encino, CA 91436
(818) 995-0800

Mary L. Hudson
Law Offices of Mary L. Hudson
1505 Bridgeway, Suite 206
Sausalito, CA 94965
(415) 331-7712

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Let them play Monopoly behind gates we lock

Submitted: Jul 30, 2006

In 1950, it has been repeated ad nausea; Los Angeles County produced more agricultural commodities than any county in the state. By the mid-1970s, it began to lead the nation as the most polluted air basin, despite its sea breezes. Today, in this grim "metric," it appears to have fallen behind both the San Joaquin Valley and Riverside/San Bernardino counties.

The San Joaquin Valley is the richest farmland in the western US. Today, Los Angeles is an asphalt jungle and its eastern neighboring counties are developing along the same dismal pattern.

Humanity has yet to learn how to reclaim asphalt jungles for agriculture, should the need or desire occur.

It is not too late to stop the LA-ification of the San Joaquin Valley. Abundant farmland still exists. Given its inversion layer, more development can only turn this valley of the best farmland in the West into a respiratory hell.

Regional and national food security, health and safety for San Joaquin Valley inhabitants and a responsible attitude toward global warming and the waning of the Sierra snow pack argue forcefully against more population growth.

All that is stopping a sane approach to Valley agricultural and natural resources and health and welfare of its inhabitants is the entire political economic system – local, state and federal – dominated by real estate development and the financial, land-owning, construction, and realty interests that swarm around it, and the political passivity of the residents. To turn the San Joaquin Valley into a continuous metropolitan region from Sacramento to Bakersfield is no more nor less than business as usual: destructive enrichment of the few at the expense of many.

It was recently argued in a Merced County staff report on a residential development that criticism of how the development would deal with a Williamson Act (farmland preservation) matter was, in fact, an attempt to stop the project and the population growth and increase in autos the project would create. This, the staff report implied, was an illegitimate reason for arguing the Williamson Act matter.

The same is constantly said about criticisms and lawsuits for violations of local, state and federal environmental law and regulation. "It doesn't matter because the critics just want to stop growth."

This sort of logic reminds me of an old movie, "Never on Sunday," in which an Athenian prostitute who attended every performance of ancient tragedies and was greatly moved by their sorrow and destruction, consoled herself with the belief that in the end "they all went to the seashore."

Presumably, county officials that produce this bilge plan to retire to Pismo Beach to breath clean sea air after their careers of disservice to the San Joaquin Valley public.

The growth now occurring in the San Joaquin Valley is a tragedy, of which one element is always the willful denial of truths like endemic respiratory illness and global warming, which can only worsen with more Valley growth.

The loss of the culture of farming is both sad and frightening.

“The best product of the American farm is the careful farmer,” Wendell Berry once wrote. There are some left. There are also some San Joaquin Kit Fox left, but the trend toward extinction is clear in both species.

American culture and economy -- this gargantuan brat -- has no place for the modest, patient, skillful and inventive farmers who built our valley. Those people wisely mistrusted booms and all the other deals too good to be true, and they did not indefinitely abide whores in government. They believed in hard work and earnest prayer.

In our valley today, the political theory is that the public is the servant of the public servant, who is the servant of destructive enrichment, a form of self-indulgence practiced by a few people and corporations with great wealth, who lack the imagination to do anything but destructively pursue greater wealth.

The poor dears. The appropriate places for them are gated reservations locked from the outside instead of the inside. Let them play Monopoly with their money! Meanwhile, permit the San Joaquin Valley public time and space to deal with the consequences of their binges in real estate.

Bill Hatch

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Byrd sues on civil rights violations

Submitted: Jul 28, 2006

Richard Byrd, who in 2004 sold a piece of property to the sheriff who was incarcerating him and the district attorney who was prosecuting him, recently filed a federal suit against the Atwater policeman who arrested and charged him, the sheriff, the DA, their real estate partners (which included Greg Hostetler, owner of Ranchwood Homes), his former attorney and Salvadori Realty for damages arising from violations of the federal civil rights and labor codes.

Below you will find Byrd's complaint to the United States District Court for the Eastern District of California and a collection of newspaper clippings on events surrounding this case.
___________________

COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION

KEVIN G. LITTLE, SBN 149818

ATTORNEY AT LAW

2115 Kern Street, Suite 330

Fresno, California 93721

Telephone: (559) 486-5730

Telecopy: (559) 486-4759

E-mail: fwllaw@aol.com

Attorney for Plaintiff Richard Byrd

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

***

RICHARD BYRD,

Plaintiff,

v.

ATWATER RESERVE OFFICER

MICHAEL TEATER; GORDON SPENCER,

FORMER DISTRICT ATTORNEY FOR

THE COUNTY OF MERCED; MARK

PAZIN, SHERIFF OF THE COUNTY OF

MERCED; STEPHEN MAUZY; CENTURY

21 SALVADORI REALTY; CARL

CAMPODONICA; WILLIAM AND LILLIAN

CAMPODONICA TRUST; JOHN JULIUS;

GARTH PECCHENINO; DAVID

GRESHAM; HOSTETLER

INVESTMENTS, LLC; BELLEVUE ROAD

PARTNERS, LLC; C. LOGAN

McKECHNIE, SBN 77393, THE COUNTY

OF MERCED, CALIFORNIA; THE CITY

OF ATWATER, CALIFORNIA, DOES 1-10,

Defendants.

No.

COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF, AND

RESCISSION

42 U.S.C. § 1983

28 U.S.C. § 2201

ACTUAL AND CONSTRUCTIVE FRAUD

NEGLIGENT MISREPRESENTATION

BREACH OF FIDUCIARY DUTY

BREACH OF THE COVENANT OF GOOD FAITH

BREACH OF CONTRACT

NEGLIGENCE

INTERFERENCE W ITH ECONOMIC ADVANTAGE

ABUSE OF PROCESS

RESCISSION

JURY TRIAL DEMANDED

TO THE HONORABLE COURT:

Plaintiff Richard Byrd, through his undersigned counsel, hereby makes the following

allegations against the defendants, and each of them:

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 1 of 18

____________________

COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION -2-

JURISDICTION AND VENUE

1. This Court has original jurisdiction over this proceeding pursuant to 28 U.S.C.

§§ 1331 and 1343, as this action is one for damages arising under federal civil rights and labor

law. This Court has jurisdiction over the claim for declaratory relief under the Declaratory

Judgment Act, 28 U.S.C. § 2201. This Court also has jurisdiction over the supplemental

California law claims pursuant to 28 U.S.C. § 1367.

2. This Court has venue in this action pursuant to 28 U.S.C. § 1391(b), as the

occurrences giving rise to this action all occurred within this judicial district.

PARTIES

3. At all relevant times, plaintiff Richard Byrd (“Byrd”) was a citizen and resident of

the State of California, County of Merced. Byrd has had a lengthy and honorable career in

military service and in law enforcement, including having served as the Chief of Police at

Merced College. Byrd has also had success as a property owner and principal of an

investigations and security firm. Prior to his wife’s untimely death in August 2003, and his

subsequent descent into alcoholism, Byrd had no criminal record, and, even after August

2003, Byrd’s few legitimate arrests related only to his driving while intoxicated. Byrd’s only

conviction stems from his false arrest on March 11, 2004, and that arrest is being expunged

based on the misconduct set forth herein.

4. Defendant Atwater Reserve Officer Michael Teater (“Teater”) is a level II reserve

officer with the Atwater Police Department and is a citizen and resident of the State of

California, County of Merced. Teater’s lengthy criminal history and history of dishonesty

should have disqualified him from ever representing a law enforcement agency. Teater was

the law enforcement officer responsible for concocting the alleged offense for which Byrd was

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 2 of 18

____________________

COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION -3-

arrested on March 11, 2004, as well as entrapping Byrd’s alleged involvement in said offense.

With respect to all actions described herein, Teater was acting under color of law and within

the course and scope of his duties. Teater is sued in his individual capacity for purposes of

monetary damages, and in his official capacity for purposes of the declaratory and ancillary

relief requested herein.

5. Defendant Gordon Spencer (“Spencer”), former District Attorney for the County

of Merced, is a citizen and resident of the State of California, County of Merced. Spencer

pursued and manipulated the criminal charges instituted in March 2004 against Byrd for his

own economic gain as one of the purchasers of Byrd’s lucrative property. Spencer also was

one of the officials primarily responsible for keeping Byrd in custody while the illegitimate

purchase was finalized. With respect to all actions described herein, Spencer was acting

under color of law and within the course and scope of his duties. Spencer is sued in his

individual capacity for purposes of monetary damages, and in his official capacity for purposes

of the declaratory and ancillary relief requested herein.

6. Defendant Mark Pazin (“Pazin”), Sheriff of the County of Merced, is a citizen and

resident of the State of California, County of Merced. Pazin investigated, pursued and

manipulated the criminal charges instituted in March 2004 against Byrd for his own economic

gain as one of the purchasers of Byrd’s lucrative property. Pazin also was one of the officials

primarily responsible for keeping Byrd in custody while the illegitimate purchase was finalized.

With respect to all actions described herein, Spencer was acting under color of law and within

the course and scope of his duties. Spencer is sued in his individual capacity for purposes of

monetary damages, and in his official capacity for purposes of the declaratory and ancillary

relief requested herein.

7. Defendant Stephen Mauzy (“Mauzy”) is a citizen and resident of the County of

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 3 of 18

____________________

COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION -4-

Merced. Mauzy is a realtor who works under the auspices of Century 21 Salvadori Realty.

Mauzy was purportedly the representative of Byrd with respect to the sale of his lucrative

property, but, as set forth herein, Mauzy violated his legal and contractual duties and

fraudulently induced the sale of Byrd’s property for approximately 20 percent of its actual value

to a group of purchasers that included himself, Spencer, Pazin and others named herein.

Mauzy is liable under state and federal law for his own actions and the acts of his employees,

representatives, agents or assigns, as alleged herein. Mauzy is also liable under federal law

based on the joint activity and/or conspiracy he engaged in, either himself or through his

employees, representatives, agents or assigns, with individuals acting under color of law and

within the course and scope of their duties. Mauzy is liable for the monetary damages,

declaratory and ancillary relief requested herein.

8. Defendant Century 21 Salvadori Realty (“Salvadori Realty”) is a real estate firm

doing business in the County of Merced, California. Plaintiffs are informed and believe that

Salvadori Realty is either a business entity, or the dba of such an entity, doing business in the

State of California. Salvadori Realty was supposed to be the firm representing Byrd with

respect to the sale of his lucrative property, but, as set forth herein, Salvadori Realty violated

its legal and contractual duties and fraudulently inducing the sale of Byrd’s property for

approximately 20 percent of its actual value to a group of purchasers that included Mauzy,

Spencer, Pazin and others named herein. Salvadori Realty is liable under state law for the

acts of its employees, representatives, agents or assigns, as alleged herein. Salvadori Realty

is also liable under federal law based on the joint activity and/or conspiracy it engaged in,

through its employees, representatives, agents or assigns, with individuals acting under color

of law and within the course and scope of their duties. Salvadori Realty is liable for the

monetary damages, declaratory and ancillary relief requested herein.

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 4 of 18

____________________

COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION -5-

9. Defendant Carl Campodonica (“Campadonica”), representative of the William

and Lillian Campodonica Trust, is a citizen and resident of the County of Merced.

Campodonica was one of the illegitimate purchasers of Byrd’s lucrative property that

benefitted from the wrongful and fraudulent acts of the co-purchasers of that property,

including Mauzy, Spencer, Pazin, and others named herein. Campodonica is liable under

state and federal law for his own actions and the acts of his employees, representatives,

agents or assigns, as alleged herein. Campodonica is also liable under federal law based on

the joint activity and/or conspiracy he engaged in, either himself or through his employees,

representatives, agents or assigns, with individuals acting under color of law and within the

course and scope of their duties. Campodonica is liable for the monetary damages,

declaratory and ancillary relief requested herein.

10. Defendant the Lillian and John Campodonica Trust (“the Campodonica Trust”)

is a legal entity base din Merced County that is subject to suit under federal and California law.

The Campodonica Trust was one of the illegitimate purchasers of Byrd’s lucrative property that

benefitted from the wrongful and fraudulent acts of the co-purchasers of that property,

including Mauzy, Spencer, Pazin, and others named herein. The Campodonica Trust is liable

under state and federal law for his own actions and the acts of his employees, representatives,

agents or assigns, as alleged herein. The Campodonica Trust is also liable under federal law

based on the joint activity and/or conspiracy he engaged in, either himself or through his

employees, representatives, agents or assigns, with individuals acting under color of law and

within the course and scope of their duties. The Campodonica Trust is liable for the monetary

damages, declaratory and ancillary relief requested herein.

11. Defendant John Julius (“Julius”) is a citizen and resident of the County of

Merced. Julius was one of the illegitimate purchasers of Byrd’s lucrative property that

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 5 of 18

___________________

COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION -6-

benefitted from the wrongful and fraudulent acts of the co-purchasers of that property,

including Mauzy, Spencer, Pazin, and others named herein. Julius is liable under state and

federal law for his own actions and the acts of his employees, representatives, agents or

assigns, as alleged herein. Julius is also liable under federal law based on the joint activity

and/or conspiracy he engaged in, either himself or through his employees, representatives,

agents or assigns, with individuals acting under color of law and within the course and scope

of their duties. Julius is liable for the monetary damages, declaratory and ancillary relief

requested herein.

12. Defendant Garth Pecchenino (“Pecchenino”) is a citizen and resident of the

County of Merced. Pecchenino was one of the illegitimate purchasers of Byrd’s lucrative

property that benefitted from the wrongful and fraudulent acts of the co-purchasers of that

property, including Mauzy, Spencer, Pazin, and others named herein. Pecchenino is liable

under state and federal law for his own actions and the acts of his employees, representatives,

agents or assigns, as alleged herein. Pecchenino is also liable under federal law based on

the joint activity and/or conspiracy he engaged in, either himself or through his employees,

representatives, agents or assigns, with individuals acting under color of law and within the

course and scope of their duties. Pecchenino is liable for the monetary damages, declaratory

and ancillary relief requested herein.

13. Defendant David Gresham (“Gresham”) is a citizen and resident of the County

of Merced. Gresham was one of the illegitimate purchasers of Byrd’s lucrative property that

benefitted from the wrongful and fraudulent acts of the co-purchasers of that property,

including Mauzy, Spencer, Pazin, and others named herein. Gresham is liable under state

and federal law for his own actions and the acts of his employees, representatives, agents or

assigns, as alleged herein. Gresham is also liable under federal law based on the joint activity

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 6 of 18

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COMPLAINT FOR DAMAGES,

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and/or conspiracy he engaged in, either himself or through his employees, representatives,

agents or assigns, with individuals acting under color of law and within the course and scope

of their duties. Gresham is liable for the monetary damages, declaratory and ancillary relief

requested herein.

14. Defendant Hostetler Investments, LLC (“Hostetler Investments”) is a real estate

development firm doing business in the County of Merced, California. Plaintiffs are informed

and believe that Hostetler Investments is either a business entity, or the dba of such an entity,

doing business in the State of California. Hostetler Investments was one of the illegitimate

purchasers of Byrd’s lucrative property that benefitted from the wrongful and fraudulent acts

of the co-purchasers of that property, including Mauzy, Spencer, Pazin, and others named

herein. Hostetler Investments is liable under state and federal law for his own actions and the

acts of his employees, representatives, agents or assigns, as alleged herein. Hostetler

Investments is also liable under federal law based on the joint activity and/or conspiracy he

engaged in, either himself or through his employees, representatives, agents or assigns, with

individuals acting under color of law and within the course and scope of their duties. Hostetler

Investments is liable for the monetary damages, declaratory and ancillary relief requested

herein.

15. Defendant Bellevue Road Partners, LLC (“Bellevue”) is a real estate

development firm doing business in the County of Merced, California. Plaintiffs are informed

and believe that Bellevue is either a business entity, or the dba of such an entity, doing

business in the State of California. Bellevue is the successor in interest of the illegitimate

purchasers of Byrd’s lucrative property that benefitted from the wrongful and fraudulent acts

of the co-purchasers of that property, including Mauzy, Spencer, Pazin, and others named

herein, and is therefore not a bonafide purchaser of said property. Bellevue is liable under

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 7 of 18

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COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION -8-

state and federal law for his own actions and the acts of his employees, representatives,

agents or assigns, as alleged herein. Bellevue is also liable under federal law based on the

joint activity and/or conspiracy he engaged in, either himself or through his employees,

representatives, agents or assigns, with individuals acting under color of law and within the

course and scope of their duties. Bellevue is liable for the monetary damages, declaratory and

ancillary relief requested herein.

16. Defendant C. Logan McKechnie, SBN 77393 (“McKechnie”) is an attorney

licensed to practice in the State of California and is a citizen and resident of the County fo

Merced. McKechnie was Byrd’s attorney for purposes of the criminal proceedings set forth

herein. McKechnie, despite being on actual and/or constructive notice of the false charges

against Byrd, the entrapment, Teater’s criminal history and history of dishonesty, the identities

of the prospective purchasers of Byrd’s lucrative property, and other facts that cried out for his

zealous advocacy, did nothing to assist Byrd in being exonerated or released from custody

earlier than her was. McKechnie is liable under state and federal law for his own actions and

the acts of his employees, representatives, agents or assigns, as alleged herein. McKechnie

is also liable under federal law based on the joint activity and/or conspiracy he engaged in,

either himself or through his employees, representatives, agents or assigns, with individuals

acting under color of law and within the course and scope of their duties. McKechnie is liable

for the monetary damages, declaratory and ancillary relief requested herein.

17. Defendant the County of Merced, California (“Merced County”) is a political

subdivision of the State of California. Merced County is the primary funding body of the Office

of the District Attorney for Merced County and the Merced County Sheriff’s Office. Merced

County’s liability for the monetary damages sought in this action is based on its customs and

policies, which gave rise to the federal causes of action alleged herein. As permitted by

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 8 of 18

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COMPLAINT FOR DAMAGES,

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applicable law, these customs and policies will be detailed at a later point in this proceeding.

Merced County also has responsibility under applicable law for the declaratory and ancillary

relief requested by plaintiff herein.

18. Defendant the City of Atwater, California (“Atwater”) is a political subdivision of

the State of California. Atwater is the primary funding body of the Atwater Police Department.

Atwater’s liability for the monetary damages sought in this action is based on its customs and

policies, which gave rise to the federal causes of action alleged herein. As permitted by

applicable law, these customs and policies will be detailed at a later point in this proceeding.

Atwater also has responsibility under applicable law for the declaratory and ancillary relief

requested by plaintiff herein.

19. The fictitious defendants, sued herein as Does 1-10 (sometimes collectively

referred to as “the fictitious defendants”), are individuals and/or business entities who are

liable under the federal and/or state laws invoked herein. The fictitious defendants are liable

for the monetary damages, declaratory and ancillary relief requested herein. The fictitious

defendants will be renamed once their actual identities are ascertained.

FACTUAL ALLEGATIONS

20. On March 11, 2004 Byrd was arrested by the Merced County Sheriff’s

Department based on an offense concocted by Teater, who owed Byrd money, was

manipulating and taking advantage of the oft-intoxicated Byrd, and had longstanding animosity

against him. The alleged offense was Byrd’s supposed effort to get Teater to provide the

identity and address information of the Merced County Sheriff’s Deputy who arrested him for

driving under the influence on November 21, 2003. Byrd, a highly trained, experienced former

law enforcement officer and owner or a private investigation and security company, at all times

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 9 of 18

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COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION -10-

had independent means to obtain this information if he had desired it, but made no efforts to

obtain it. Teater also entrapped Byrd with respect to the alleged offense over the span of

approximately three months, during which time he would attempt to encourage and bait the

intoxicated Byrd into paying him to obtain said information. When these efforts were

unsuccessful, Teater proceeded to concoct said allegations and report them to the Merced

County Sheriff’s Office.

21. On March 15, 2004, Byrd was charged with bribing Teater, in violation of Penal

Code § 67, and, with respect to his November 21, 2003 arrest, to carrying a loaded firearm,

although Byrd was legally authorized to do the latter. Even though Byrd had no prior criminal

history, the District Attorney’s Office, at Spencer’s and Pazin’s direction, sought and obtained

a $500,000 bail for these charges.

22. In order to pay for his legal representation, newly built home, ongoing business

expenses, and other short term expenses, Byrd found it necessary to sell his 21 acre ranch

property while he was in custody. Byrd’s daughter, Linda Roybal, who was unsophisticated

in such matters, sought the assistance of Mauzy and Salvadori Realty, in selling said property.

23. Mauzy and Salvadori Realty never advised Roybal or Byrd of the actual value

of the ranch property, which, according to reasonable valuations, was worth more than

$6,000,000 at the time. Instead, Mauzy told Roybal and Byrd that this property was worth

considerably less and falsely indicated that a nearby property of similar size had sold for

$700,000. Mauzy also communicated an alleged offer of $1,400,000 for the property, which

subsequently “fell through,” as corroboration for his false valuation of the property.

24. At the same time he was misrepresenting the value of Byrd’s property to Roybal

and Byrd, Mauzy was himself among a group of purchasers, consisting of Spencer, Pazin,

Pecchenino, Gresham, Julius, Campodonica, as representative of the Campodonica Trust,

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 10 of 18

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COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION -11-

and Hostetler Investments. It was well known to all of the purchasers, based on the highly

publicized nature of Byrd’s criminal case, Spencer’s and Pazin’s involvement therein, and the

amount of their offer in light of their sophistication, that this proposed purchase represented

a highly improper and illegal endeavor.

25. On May 6, 2004, Byrd pled no contest to a reduced charge of obstructing an

executive officer, Teater, in violation of Penal Code § 69. The conditions of the plea were that

the remaining charges would be dismissed, that Byrd would receive three years felony

probation, six months in county jail, and voluntarily enroll in a residential alcohol treatment

program. At the time this plea was being negotiated, Byrd’s property was already for sale, and

the illegitimate purchase by Mauzy, Spencer, Pazin, Pecchenino, Gresham, Julius,

Campodonica, as representative of the Campodonica Trust, and Hostetler Investments was

already contemplated. It was known that Byrd would remain in custody throughout the time

of the consummation and finalization of the purchase under the proposed terms of the plea

bargain, and that his continuing in custody status was what in large part necessitated his sale

of the property. It was also known to Spencer and Pazin, based on incidents occurring relating

to Byrd while he was in jail, that he continued drinking and was thus under the effects of his

sever alcoholism.

26. During this same time period, all of the above facts where known or

ascertainable to McKechnie, who did nothing to seek Byrd’s exoneration, earlier release or the

protection of his property rights through his criminal case. No did McKechnie seek to

investigate or develop a defense to the underlying charge based on Teater’s history of

dishonesty, criminal record, the disappearance of crucial evidence, Byrd’s voluntary

intoxication, or any other factor.

27. On or about May 18, 2004, and agreement was reached between Byrd and the

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 11 of 18

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COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION -12-

purchasers, Mauzy, Spencer, Pazin, Pecchenino, Gresham, Julius, Campodonica, as

representative of the Campodonica Trust, and Hostetler Investments, to purchase the property

for $1,300,000, about 20 percent of the actual value of the property. This sale closed escrow

and was recorded on July 1, 2004, two weeks before Byrd’s July 16, 2004 sentencing in the

criminal case. The sale resulted in Mauzy, Spencer, Pazin, Pecchenino, Gresham, Julius,

Campodonica, as representative of the Campodonica Trust, and Hostetler Investments

becoming owners of the property, and Salvadori Realty’s collecting a $78.000 commission.

Even after Byrd’s May 6, 2004 plea to the lesser charge under Penal Code § 69, no motion

was made by either the prosecution or the defense to reduce his $500,000 bail, which would

have enabled him to attend to and stabilize his economic situation prior to returning to custody

and which would have eliminated the necessity for him to sale his lucrative property.

28. On July 16, 2004, Byrd was sentenced and received time served. He was

required to immediately enroll in a residential alcohol treatment program that kept him

effectively custody for another two months, until September 2004. Indeed, Byrd had highly

restricted use of communication services during his time in the alcohol treatment program.

Only after Byrd was out of custody and in control of his alcoholism, was he gradually able to

ascertain and understand the implications of the foregoing. Byrd has also ascertained that

some or all of the interest in the property purchased by Mauzy, Spencer, Pazin, Pecchenino,

Gresham, Julius, Campodonica, as representative of the Campodonica Trust, and Hostetler

Investments has been illegitimately transferred to Bellevue. Also, Byrd has since exposed and

the false nature of the criminal charges made against him and seeks further relief in this

proceeding. Byrd has already served his entire sentence and has no remedy through a writ

of habeas corpus, thus entitling him to pursue his further exoneration in this proceeding.

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 12 of 18

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COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION -13-

29. Byrd’s damages as a result fo the foregoing are monumental. Byrd has

sustained loss of liberty for six months, expenses incurred in fighting an illegitimate criminal

case, loss of his profitable business as a result of his false arrest, malicious prosecution and

having to stay in custody for the length of time her did, loss of his reputation, loss of a property

worth more than $6,000,000, as well as other general damages.

FEDERAL CIVIL RIGHTS CLAIMS

30. The following defendants are liable to Byrd for compensatory damages under

federal law, specifically, under 42 U.S.C. § 1983: (1) Teater, for false arrest and malicious

prosecution, in violation of Byrd’s rights under the Fourth Amendment; (2) Spencer and Pazin,

for abuse of process, manipulation of the criminal proceedings, and conspiracy to violate

Byrd’s due process rights and deprive him of his property rights, in violation of the Fourth,

Fifth, Sixth and Fourteenth Amendments; (3) Mauzy, Salvadori Realty, Spencer, Pazin,

Pecchenino, Gresham, Julius, Campodonica, the Campodonica Trust, Hostetler Investments,

and Bellevue, for joint and/or conspiratorial activity with state actors that constituted abuse

of process, manipulation of the criminal proceedings, and conspiracy to violate Byrd’s due

process rights and deprive him of his property rights, in violation of the Fourth, Fifth, Sixth and

Fourteenth Amendments; (4) Atwater, for having a de facto custom and policy of failing to

terminate, supervise and/or discipline Teater, which was the moving force behind Teater’s

constitutional violations stated hereinabove; (5) Merced County, for failing to terminate,

supervise, and/or discipline Spencer and Pazin, which was the moving force behind all but one

of the constitutional violations set forth hereinabove; and (6) Merced County, based on the

actions of their appointed policymakers, Spencer and Pazin, which were the moving forces

behind all but one of the constitutional violations set forth hereinabove.

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 13 of 18

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COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION -14-

31. As a direct and proximate result of the defendants' violations of his federal

constitutional rights specified above, plaintiff has suffered substantial damage, as detailed

hereinabove. The individual and non-municipal entity defendants’ intentional and reckless

acts, as described above, were intentional, wanton, malicious, oppressive, and undertaken

with reckless disregard for Byrd’s rights, thus entitling him to an award of punitive damages

under federal law.

DECLARATORY RELIEF CLAIMS

32. The following defendants are liable to Byrd for declaratory relief under federal

law: (1) Teater, for false arrest and malicious prosecution, in violation of Byrd’s rights under

the Fourth Amendment; (2) Spencer and Pazin, for abuse of process, manipulation of the

criminal proceedings, and conspiracy to violate Byrd’s due process rights and deprive him of

his property rights, in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments; (3)

Mauzy, Salvadori Realty, Spencer, Pazin, Pecchenino, Gresham, Julius, Campodonica, the

Campodonica Trust, Hostetler Investments and Bellevue, for joint and/or conspiratorial activity

with state actors that constituted abuse of process, manipulation of the criminal proceedings,

and conspiracy to violate Byrd’s due process rights and deprive him of his property rights, in

violation of the Fourth, Fifth, Sixth and Fourteenth Amendments; (4) Atwater, for having a de

facto custom and policy of failing to terminate, supervise and/or discipline Teater, which was

the moving force behind Teater’s constitutional violations stated hereinabove, and for

policymaker Chief Hawthorn’s non-disclosure of Teater’s record of criminal misconduct and

dishonesty; (5) Merced County, for failing to terminate, supervise, and/or discipline Spencer

and Pazin, which was the moving force behind all but one of the constitutional violations set

forth hereinabove; and (6) Merced County, based on the actions of their appointed

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 14 of 18

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policymakers, Spencer and Pazin, which were the moving forces behind all but one of the

constitutional violations set forth hereinabove.

33. The foregoing factual allegations set forth an actual controversy with respect to

the violation of Byrd’s federal constitutional rights. Therefore, this proceeding is an

appropriate one for declaratory relief under 28 U.S.C. § 2201.

34. Byrd seeks a declaration from this Court that the defendants, based on the

factual transaction underlying this proceeding, violated the constitutional rights identified

hereinabove. This declaration may be based on all of the facts underlying this proceeding

without regard to any issue of qualified or absolute immunity, since such immunities only apply

to claims for monetary relief.

35. Byrd also requests further necessary and proper relief as provided for under 28

U.S.C. § 2202, including the full expungement of the records of his criminal arrest and

prosecution and the full restoration of the property rights of which he has been deprived.

STATE CIVIL RIGHTS CLAIMS

36. The following defendants are liable to Byrd under California Civil Code § 52.1

for state civil rights violations, which may be based upon the federal constitutional violations

set forth hereinabove, or their state constitutional equivalents: (1) Teater, for false arrest and

malicious prosecution, in violation of Byrd’s rights under the Fourth Amendment; (2) Spencer

and Pazin, for abuse of process, manipulation of the criminal proceedings, and conspiracy to

violate Byrd’s due process rights and deprive him of his property rights, in violation of the

Fourth, Fifth, Sixth and Fourteenth Amendments; (3) Mauzy, Salvadori Realty, Spencer, Pazin,

Pecchenino, Gresham, Julius, Campodonica, the Campodonica Trust, Hostetler Investments

and Bellevue, for joint and/or conspiratorial activity with state actors that constituted abuse

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 15 of 18

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COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION -16-

of process, manipulation of the criminal proceedings, and conspiracy to violate Byrd’s due

process rights and deprive him of his property rights, in violation of the Fourth, Fifth, Sixth and

Fourteenth Amendments; (4) Atwater, as a result of its vicarious liability for Teater’s false

arrest and malicious prosecution, for having a de facto custom and policy of failing to

terminate, supervise and/or discipline Teater, which was the moving force behind Teater’s

constitutional violations stated hereinabove, and for policymaker Chief Hawthorn’s nondisclosure

of Teater’s record of criminal misconduct and dishonesty; (5) Merced County, as

a result of its vicarious liability for Spencer’s and Pazin’s misconduct, as specified

hereinabove, and for failing to terminate, supervise, and/or discipline Spencer and Pazin,

which was the moving force behind all but one of the constitutional violations set forth

hereinabove; and (6) Merced County, based on the actions of their appointed policymakers,

Spencer and Pazin, which were the moving forces behind all but one of the constitutional

violations set forth hereinabove. The defendants’ interference with these constitutional rights

was accomplished by means of force, coercion, and intimidation, and/or the threat thereof.

37. As a direct and proximate result of the defendants' violations of his federal and

state constitutional rights specified above, plaintiff has suffered substantial damage, as

detailed hereinabove. The defendants’ conduct set forth above entitles plaintiff not only to

actual damages, but also to an award of as much as three times that amount.

STATE LAW CLAIMS

38. The defendants are liable under California state law to Byrd on the following

bases: (1) Teater, for false arrest and malicious prosecution; (2) Spencer and Pazin, for

abuse of process, manipulation of the criminal proceedings, intentional interference with

economic advantage, and conspiracy; (3) Mauzy, and Salvadori Realty, for fraud (both actual

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 16 of 18

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COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION -17-

and constructive), breach of contract, breach of fiduciary duty, breach of the covenant of good

faith and fair dealing, intentional interference with prospective economic advantage, breach

of the covenant of good faith and fair dealing, negligence, negligent misrepresentation, and

rescission; (4) Mauzy, Spencer, Pazin, Pecchenino, Gresham, Julius, Campodonica, the

Campodonica Trust, Hostetler Investments and Bellevue for fraud (both actual and

constructive), breach of the covenant of good faith and fair dealing, intentional interference

with prospective economic advantage, breach of the covenant of good faith and fair dealing,

negligent misrepresentation, and rescission; (5) McKechnie, for professional negligence; (6)

Atwater, vicarious liability for Teater’s false arrest and malicious prosecution, and for

policymaker Chief Hawthorn’s non-disclosure of Teater’s record of criminal misconduct and

dishonesty; and (7) Merced County, vicarious liability for the misconduct of Spencer and Pazin,

set forth hereinabove. As a direct and proximate result of the defendants' misconduct

specified above, plaintiff has suffered substantial damage, as detailed hereinabove.

PRAYER FOR RELIEF

Plaintiff prays for judgment as follows:

1. For full compensatory damages in amounts according to proof;

2. For declaratory relief as requested hereinabove;

3. For punitive damages as to the federal civil rights causes of action against the

individual and non-municipal defendants, in amounts according to proof;

4. For treble damages according to proof under California Civil Code § 52.1;

5. For rescission of the sale of his property and invalidation of the deed and

related documents recorded thereupon on July 1, 2004;

6. For attorneys' fees and costs of suit; and

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 17 of 18

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COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION -18-

7. For such other relief as this Court deems just.

DEMAND FOR A JURY TRIAL

Plaintiff requests a trial by jury, consistent with his rights under the Seventh Amendment

and other applicable law.

In Fresno, California, this 15 day of July, 2006. th

/s/ Kevin G. Little

Kevin G. Little

Attorney for Plaintiff Richard Byrd

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 18 of 18
------------------------------

Notes:

7-28-06
Merced Sun-Star
Man who was jailed on bribery charge sues to get land back...Chris Collins
http://www.mercedsunstar.com/local/story/12513043p-13227841c.html
The man who sold his land to former District Attorney Gordon Spencer while he was in jail and facing charges from the District Attorney's Office now wants his 21 acres back -- and he's suing for it. In a lawsuit filed in Fresno's U.S. District Court this week, Richard Byrd claims Spencer and Merced County Sheriff Mark Pazin, who also bought some of Byrd's land, "pursued and manipulated the criminal charges" against Byrd for their "own economic gain" by coercing him into selling his land...names eight local men who bought Byrd's land... Ranchwood Homes owner Greg Hostetler, who was one of the investors and says he has been appointed by the group to speak on their behalf, said the purchase was a "fair, ethical and legal agreement."

7-23-06
Fresno Bee
A district attorney's 'fall from grace' told...Tim Eberly
http://www.fresnobee.com/local/story/12491981p-13208430c.html
Gordon Spencer of Merced Co. had a distinguished career soured by a scandalous finale. Gordon Spencer isn't a flashy man...known for living on the cheap, wearing inexpensive clothes and ugly ties.He did, however, develop a kind of arrogance in recent years that led him to brush off laws he was sworn to enforce as Merced County's district attorney. A hero...Much of Spencer's luster came from his willingness to take on big business in the legal arena. with an attitude...Superior Court judge Frank Dougherty..."In the past 10 years, I saw a marked change," "I saw a person who was consumed with power. I saw a person who [discarded] old friends and acquired new friends who he regarded as influential in the business community." to zero?...Spencer's temperament may have blocked his path to becoming a Superior Court judge. The first scandal was not a knockout punch, but they kept coming like a steady series of body blows, Morse said. Life goes on...The drama, though, hasn't ended: An early-morning fire last weekend at the Merced County courthouse destroyed several offices and work spaces of District Attorney's Office employees. The fire has not been linked to Spencer. "

7-19-06
Merced Sun-Star
Land deal rhetoric flares up...Leslie Albrecht
http://www.mercedsunstar.com/local/story/12471197p-13189784c.html
Tension about recent press coverage of former District Attorney Gordon Spencer's land deal with Merced County Sheriff Mark Pazin and other prominent locals boiled over at the supervisors' meeting Tuesday when Ranchwood Homes president Greg Hostetler harshly criticized Supervisor Deidre Kelsey. Hostetler is one of the investors who bought land from a man while he was in jail being prosecuted by Spencer. During the meeting's public comment period, Hostetler leaned over the podium and read a statement that first refuted information in the Sun-Star story, then accused Kelsey of making "uncalled for comments." Hostetler said a Merced County civil grand jury investigation into Kelsey's family mining business five years ago left Kelsey in no position to pass judgment on others. This isn't the first time Hostetler and Kelsey have clashed. In March a voicemail message reportedly left by Hostetler was posted on the Web site Badlands Journal. In the message Hostetler accused Kelsey of using county staff members as her "personal pit bulls" to attack his employees.

Supervisors dock D.A. for swift exit...Leslie Albrecht
http://www.mercedsunstar.com/local/story/12471196p-13189760c.html
District Attorney Gordon Spencer's abrupt resignation will cost him $7,763.19...early departure means his last paycheck will be docked $4,420, the bonus amount he earned for the first six months of 2006. If Spencer had served out his last year as district attorney -- originally slated to end in January 2007 -- he would have earned the extra money...early departure means his last paycheck will be docked $4,420, the bonus amount he earned for the first six months of 2006. The lost bonus might not be Spencer's only financial penalty. Chairman Mike Nelson announced that the county could ask Spencer to pay back "other funds that may have been given Mr. Spencer during his tenure here as district attorney."Nelson said the supervisors must wait until the Attorney General's Office releases its investigation into Spencer's use of the allowances before they move to recover funds from him.

7-16-06
Merced Sun-Star

Fire torches courts building...Doane Yawger
http://www.mercedsunstar.com/local/story/12463486p-13182743c.html
An early morning fire on Sunday guts offices in the Superior Courts building, including offices of the Merced County deputy district attorneys
...$600,000 to $700,000 in damage...destroyed five offices of three deputy district attorneys and their secretaries.

Spencer news disappoints...Lola Barnett, Merced...Letters to the editor
http://www.mercedsunstar.com/opinion/story/12463494p-13182766c.html
I must say the base reporting I've read disappoints me. Spencer serves drinks at Country Club...may have led to death of a young man...I'm sure they didn't stop serving drinks just because he left... OES finds Mr. Spencer guilty. Guilty of what?... Our judicial system is based upon the premise that a person is presumed innocent until proven guilty in a court of law. Therefore, let us not presume Mr. Spencer is guilty until all the facts are in.

7-18-06 Merced Co. Board of Supervisor agenda http://web.co.merced.ca.us/bos/boardagenda/current.pdf
PRESENTATION AND INTRODUCTION OF THE SAN JOAQUIN VALLEY REGIONAL BLUE PRINT BY MCAG
REGULAR CALENDAR
BOARD ACTION

BOARD OF SUPERVISORS
21. Resolution acknowledging the resignation of Gordon Spencer, District Attorney and Public Administrator effective July 14, 2006 and
directing the Auditor/Controller to recover previously issued payments under Merced County Unrepresented Management Resolution No.
06-115, Section 5.D. Successor Delineation.

7-15-06
Merced Sun-Star
Amid turmoil, Spencer quits...Chris Collins
http://www.mercedsunstar.com/local/story/12456073p-13175492c.html
After a tumultuous week that included a dramatic car crash, a concussion, calls from the Board of Supervisors to step down, and continuing criminal investigations by the state Attorney General's Office, District Attorney Gordon Spencer said on Friday he will resign immediately. A spokesman for the Attorney General's Office said his agency will continue to investigate Spencer.

7-14-06
Merced Sun-Star

County workers get brush up on ethics...Chris Collins
http://www.mercedsunstar.com/local/story/12450025p-13170424c.html
Amid investigations by the state Attorney General's Office and growing questions about government accountability, county officials got an earful from Graham and other ethics speakers this week. All county department heads and elected officials, as well as middle managers, were required to go to Graham's session on Monday. Elected officials and top-level employees also had to go to a two-hour course Tuesday taught by a Sacramento law firm that reviewed accepted guidelines for government openness and accountability. But not everyone attended...four officials, including Spencer, didn't go to Monday's meeting... Spencer, who was in the hospital Tuesday after a car accident Monday, didn't attend Tuesday's session. The four no-shows Monday -- Spencer, Supervisor Deidre Kelsey, Human Services Agency Director Ana Pagan and County Counsel Ruben Castillo -- must go to Graham's Aug. 24 course for low-level managers if they want to keep their allowances. Morris said Kelsey had a family emergency and Pagan had a medical emergency Monday. He said he didn't know why Spencer and Castillo didn't attend. Supervisor Kathleen Crookham...felt Hedlund's session was "dull," she was glad to attend the ethics courses. "It reinforces the kind of things we should remember," Crookham said.
Correction...Last Updated: July 14, 2006, 02:51:25 AM PDT
http://www.mercedsunstar.com/local/story/12450026p-13170466c.html
• A headline on Page A1 of Thursday's Sun-Star about District Attorney Gordon Spencer was incorrect. No representative from the hospital said Mr. Spencer suffered a head injury.

7-12-06
Merced Sun-Star

D.A. still in hospital...Scott Jason
http://www.mercedsunstar.com/local/story/12439963p-13161488c.html
The Merced County district attorney remained in the hospital Tuesday night with short-term memory loss after a rollover crash Monday night, his attorney said. The California Highway Patrol is continuing its investigation into the crash, though it doesn't look like any charges or citations will be filed, Public Information Officer Shane Ferriera said. Spencer called his wife from Smith's phone, and she took him to the hospital... The investigating officer interviewed Spencer at the hospital and tested him for driving under the influence...said the test includes looking for the smell of alcohol, slurred speech or red, watery eyes. Ferriera said he did not know if Spencer was given a breathalyzer test.

Panel may ask Spencer to resign from his post...Chris Collins
http://www.mercedsunstar.com/local/story/12439964p-13161513c.html
Merced County Supervisor Jerry O'Banion said Tuesday that embattled District Attorney Gordon Spencer should resign immediately to help restore the District Attorney's Office from months of "turmoil." O'Banion told supervisors at their meeting Tuesday that he wants the board to vote sometime soon on whether Spencer should resign. He later said the vote will be at the supervisors' next meeting on Tuesday. "I'm not going to take any action until we have the attorney general's report," Kelsey said..."I'm not going to let the newspaper tell me what to do and I'm not going to grandstand for the public or for the newspaper." "We don't have all the facts." O'Banion brushed aside Kelsey's accusations
..."I don't look at it as grandstanding, I look at it as a responsibility we have to take back a department that is in turmoil." Supervisor Mike Nelson...when asked if Spencer should resign, he replied. "It would be nice if he would do that, yeah."

Police chief secrecy isn't right way...Our View
http://www.mercedsunstar.com/opinion/story/12439980p-13161532c.html
Plenty of mystery surrounds the disappearance and alleged kidnapping of Kou Xiong, the Merced Police Department officer who was missing for two days before being located in the Madera County foothills. Now, after an internal affairs investigation by the police department, we're told Xiong is no longer on the force. But that's it as far as any official accounting of what may have taken place. The public deserves more of an explanation than that...police officials should divulge some reason for Xiong's termination.

Letters to the editor:
Spencer should step down...Mark Seivert, Merced
http://www.mercedsunstar.com/opinion/story/12439981p-13161523c.html
Editor: How many investigations need to be done on our district attorney from the state Attorney General's Office before we demand he step down? I think three in one year should be more than enough for anyone.
Pazin's actions a let-down...Phil McDaniels, Merced
http://www.mercedsunstar.com/opinion/story/12439957p-13161493c.html
Editor: With Gordon Spencer involved in Cellphonegate and SUVgate, it is not surprising to find him involved in yet another scheme as nefarious as the purchase of land of a jailed man. What is surprising is the behavior and attitude of one of his partners, the sheriff of Merced County... Sheriff Mark Pazin admits to knowing who the seller of the land was in the "final stages of the deal." ...the sheriff let the
chase for big bucks place a cloud over his name and the office of sheriff of Merced County.

7-11-06
Merced Sun-Star
District Attorney Spencer injured in creek car crash...Scott Jason -- Chris Collins; -- Mike De La Cruz; -- The Associated Press
http://www.mercedsunstar.com/local/story/12435800p-13157709c.html
The Merced County district attorney was taken to the hospital Monday night after he rolled his Ford pickup truck into Bear Creek, a California Highway Patrol officer said. For unknown reasons, Spencer let the Ford F-150 pickup truck drift off the road and into the creek, he said. ...CHP Web site said the victim in the crash had minor injuries.

7-8-06
Merced Sun-Star
Spencer purchased land from jailed man...Chris Collins
http://www.mercedsunstar.com/local/story/12425122p-13147572c.html
California Attorney General Bill Lockyer has launched a third investigation into Merced County District Attorney Gordon Spencer, this time examining whether Spencer committed a crime when he and a group of local investors bought a piece of property from a man who was sitting behind bars and facing charges from the District Attorney's Office. The latest investigation comes on top of an ongoing criminal probe into Spencer's potential embezzlement of public funds and an inquiry last December that found Spencer had impersonated an investigator. The attorney general is now looking into a 21-acre lot on Bellevue Road that Spencer, Sheriff Mark Pazin, Ranchwood Homes owner Greg Hostetler, and five other prominent locals purchased in 2004. The intersection of the two events created a clash that was "absolutely impermissible" by attorney ethics standards, said Weisberg, the Stanford law professor. "There was a conflict of interest. " Dougherty, the county's presiding judge, said Spencer never told Byrd's attorney about his involvement in buying Byrd's land. Kelsey said she always has been troubled that the sheriff and district attorney joined one of the county's biggest developers to buy the land.

7-5-06
Merced Sun-Star
Tatum had a smorgasbord...Phil McDaniels, Merced...Letters to the editor
http://www.mercedsunstar.com/opinion/story/12409089p-13133720c.html
Editor: Many thanks to City Editor Mike Fitzgerald for putting in words how many voters feel about the Merced County Board of Supervisors and its constant giveaway of our money to the hierarchy of county government. For someone who flew low under the radar during the Gordon Spencer matter AND the department heads' perks matter, County Executive Officer Dee Tatum surfaced long enough for another feast at the public trough. The board members have been in office too long and have lost sight of who they work for and who their decisions should benefit.

6-21-06
Merced Sun-Star
County supervisors clarify management policies...Chris Collins
http://www.mercedsunstar.com/local/story/12347503p-13077932c.html
Board of Supervisors approved sweeping changes on Tuesday to Merced County's policies on car and phone allowances given to top-level employees...also set new ethics training requirements and accountability standards for elected officials and department managers. It was the first official action the supervisors have taken in response to District Attorney Gordon Spencer's misuse of government equipment...
county Auditor Stephen Jones said that the county's attorney, Ruben Castillo, had advised him that a state law giving district attorneys and sheriffs the right to charge business expenses to the county may also give Spencer legal grounds for getting both a county phone and an allowance. The revised policy means:
• The 33 "A-level managers" in the county, which includes department heads, supervisors and other elected officials, must now sign a new form each year that says they will use their own car and phone for their jobs if they choose to receive monthly allowances as reimbursements.
• The state-mandated conflict-of-interest disclosure forms that county department heads and elected officials fill out each year will now be frequently audited by an outside firm.
• All department heads and elected officials must now attend an ethics training course once a year or lose out on their phone and car allowances.

6-15-06
Merced Sun-Star
Valley politicians report lands sales, wealth...Michael Doyle, Sun-Star Washington Bureau
http://www.mercedsunstar.com/local/story/12321524p-13054529c.html
WASHINGTON -- San Joaquin Valley lawmakers are a diversified lot, especially when it comes to their personal finances. They own land, though not necessarily as much as they used to. They own stocks. Several have spouses pulling political salaries. Cardoza reported that, last October, he sold 6.2 acres in Atwater. The land at the intersection of Bellevue Road and Redwood Avenue brought the Cardoza & Cardoza Landholding Partnership between $500,001 and $1 million. Cardoza turned to stocks. He reported purchasing some 32 different stocks in November and December. Cardoza's wife works as a physician in Merced.

Crookham is off the mark...Lorraine Dawson, Merced
http://www.mercedsunstar.com/opinion/story/12321534p-13054545c.html
Editor: Some Merced County supervisors dismissed concerns that their allowances were excessive. Supervisor Kathleen Crookham said she was frustrated that questions were being asked about her pay. "It's really unfortunate when this kind of scrutiny takes place." "And then it's really unfortunate when no one wants to run for office because they come under that type of scrutiny." "Does the rest of the world have to justify what they spend? No. This is a thankless job and one you don't get rich on." Mercedians have a right to know where the tax revenue is spent and why. Then there was this comment in a May 2 Sun-Star story: "Supervisor Kathleen Crookham said she's known for the past few months that (District Attorney Gordon) Spencer has been using a county vehicle while receiving a car allowance at the same time, but she said she doesn't think it's a serious violation." Look no further than comments like these as to why Measure A was not passed.

6-13-06
Merced Sun-Star
OES faults Spencer over grant...Chris Collins
http://www.mercedsunstar.com/local/story/12312342p-13045915c.html
The state Office of Emergency Services says it will closely scrutinize Merced County's use of grant funds in the future after a report it released Monday concluded that District Attorney Gordon Spencer violated the terms of an OES grant. State will monitor county closely but funds won't have to be repaid. The report also found that the District Attorney's Office misled OES when it said it would assign a full-time deputy district attorney to prosecuting people who committed rural crimes. The OES report found three other grant violations:... There is no set deadline for when the attorney general's report will conclude.

Letters to the Editor...Last Updated: June 13, 2006, 01:52:58 AM PDT
http://www.mercedsunstar.com/opinion/story/12312355p-13045923c.html
County wears blindfold...James V. Haslouer, Merced...1st letter
Editor: So let me see if I understand this correctly. If you are a county employee and you jeopardize a state- funded program for your own personal pocket stuffing and accept false cell phone and vehicle reimbursements (embezzlement), you can then use those monies to compute and enhance your retirement! ...who was signing the vouchers that District Attorney Gordon Spencer was submitting for five years or perhaps even longer? Pay Spencer more than $150K a year for what? His disdain for the law is obvious.Supervisors, stand up for your constituents and do the right thing.

6-3-06
Merced Sun-Star

Letters to the Editor
Merced Sun-Star B2 Saturday, June 3, 2006
Spencer violated Grant...Chris Collins
http://www.mercedsunstar.com/local/story/12270485p-13006930c.html
District Attorney Gordon Spencer violated the terms of a grant by driving a $27,000 SUV that he was never supposed to use, a report by a private auditing firm has found...conducted by Sacramento-based Macias, Gini and Co. The SUV, a 2005 Ford Expedition, was purchased a year ago with money from a state grant and was intended for Chief Deputy District Attorney Larry Morse. Instead, the vehicle was "assigned solely to the County's District Attorney," the report concluded..."could jeopardize eligibility of the vehicle" and future funding from the grant. "It basically reinforces the fact that the car was not supposed to be used by the individual who was using it," county Supervisor Jerry O'Banion said. Last month, the state Attorney General's Office launched an embezzlement investigation into Spencer's use of county-owned equipment. The Office of Emergency Services is making its own inquiry into Spencer's actions. Both investigations are ongoing.

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Denial

Submitted: Jul 27, 2006

Only a fool or worse ignores moral values - in the end, they always take revenge. Uri Avnery, Is Beirut Burning? Counterpunch.com, July 26, 2006
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First, a word of appreciation for Wallace Mainplace Stadium Cinemas in Merced for showing Al Gore's "An Inconvenient Truth" last week. Thanks, Mainplace, for showing the ecological awareness worthy of the city that boasts it is the "Gateway to Yosemite," where so much of the world conservation movement began.

It is unfortunate that the arrival of a world-class university in Merced has stimulated a huge speculative real estate boom, which has obliterated any sense of the history and tradition of conservation inherited from the nearness of Yosemite and the larger world-class reputation of John Muir.

It is unfortunate that local land-use authorities, state and federal legislators and a number of state and federal regulatory agencies are owned by a small group of large developers.

Consider the City of Merced, for example, its realtor dominated council pushing for all it's worth for a 1.2-million square-foot distribution center adjoining the Mission Interchange to Highway 99, where the UC Boondoggle Merced Campus Parkway will begin. Nine hundred to 2,000 truck trips a day, 24 hours a day, seven days a week will produce an absurd amount of traffic, air pollution and greenhouse gasses -- just the ticket for "The Gateway to Yosemite"!

Consider the City of Los Banos, which has doubled in population in the last decade.

Consider the City of Livingston, which recently -- and according to the County Counsel, probably illegally -- approved a mile-long sewer trunk line beyond its city limits to its wastewater treatment plant, through land owned by Mike Gallo and some other farmers, to open enough development to at least double its size, before the sewer line is extended to Stevinson, where Gallo and Stevinson Ranch plan a new town that will dwarf the existing town of Stevinson.

Consider the Merced County Association of Governments, which plans new, growth-inducing highways, roads and streets without apparently any land-use authority to do so.

Consider UC Boondoggle Merced, its own land-use authority, planning a new town south of the campus.

Consider Merced County itself. Without updating its General Plan to provide public input before it approved the UC project, and almost every subdivision induced by it since. The most air-polluting process -- not to mention information-pollution process -- the county is now considering is a NASCAR level racetrack, with parking for 15,000 fans plus the trucks bringing the race cars, in our Valley air basin, which the federal government calls in a state of severe non-attainment of acceptable air quality, and officials occasionally confess that they cannot imagine how it will come into compliance by next deadline, the one after, or by any deadline.

Consider the subdivisions the county approves on the west side that will receive their water from the federal government, which does not always deliver the full allotment, depending on supply. Consider at least one water district over there that almost seems to be laundering federal water through a complex series of intervening water districts to make it as difficult as possible to see that it is actually federal water, subject to uneven supply.

Consider that prominent occupant of the third floor of the Merced County Administration Building, Rep. Dennis Cardoza, Shrimp Slayer-Merced. It is hard to find in the whole United States Congress a member more adamantly opposed to the kind of law and policy that would begin to address the problem of global warming than Shrimp Slayer, except his beloved chairman, Rep. RichPAC Pombo, Buffalo Slayer-Tracy. Together, they are called the Pomboza, whose habitat is the pockets of a few developers, and they work ceaselessly behind the scenes to create a regulatory climate that will allow developers to turn the area from Sacramento to Fresno into another Los Angeles -- without sea breezes, a movie industry, or huge defense contractors. The Pomboza has no vision for its collective district but more developer contributions to feed its irresponsible political assault on the Public Trust.

For having allowed its elected officials to do these things, Merced richly deserves the slurb it is rapidly becoming. The population seems to be unequally divided between a few bullies and a great many cowardly whiners who were too scared to even be able to think when UC Boondoggle Merced came to town to enrich a few large landowners and a larger group of outside investors. When the chips were down, nobody could see beyond their own greed -- witness the shame of the DA, the sheriff, and the County CAO. No doubt other scandals will follow.

Consider the group of people, normally liberal, many of them now fighting the racetrack and WalMart, who could not see beyond their yearning for proximity to a UC campus and their terror of even being suspected of doubting its complete rightness.

What the public needed and had a right to expect from the university were reflection, perspective and insight into the environmental dangers at hand. Instead it gets a steady dose of idiotic flak, for example the recent statement that the reason so many students flunked out in the first year of UC Boondoggle Merced was because they were first-generation college students; for another example, the lie endlessly repeated that UC Boondoggle Merced is the only "research university in the Central Valley."

No university system in the modern world has a prouder, longer tradition of educating first-generation college students than UC, UC Davis is a world-class research university located in the middle of the Central Valley, and we resent the perpetual UC Boondoggle Merced disinformation campaign published as news in our local paper. Let UC return to its weekly paid supplements, clearly marked as advertising, just like a WalMart supplement. News is something else. We needed and had a right to expect from our public research university reflection, perspective and insight, just as we needed and had a right to expect honesty from our newspaper. We got and still get propaganda from both.

UC Boondoggle Merced's approach to the air quality crisis, directly the result of rapid growth in the Valley to which UC has contributed in our area, is to propose a medical school with an emphasis on respiratory diseases. In a word, UC Boondoggle Merced will capitalize on our air quality crisis and the huge research population it is producing. It will capitalize on the impacts of global warming on the Sierra through its Sierra Nevada Institute, measuring with powerful, emerging technologies just how rapidly the environment deteriorates. Are these the public services UC presents them to be or are they merely more exploitation?

Genius at the command of greed -- oh Joy! The worse the climate becomes, the more refined UC Boondoggle Merced's measurements will become, always assuming it will not become just an annex for research in weapons of mass destruction Livermore Valley citizens force out of UC Lawrence Livermore National Laboratory.

The land-use authorities are blinded by greed. The results are on the ground all around, and this is just the beginning. Development is here and it has its teeth in the throat of the authorities. Farming and its entire support system in the Valley are severely – perhaps fatally – threatened by development. The Valley is the richest farmland in the American West. For it to be paved over, its ecology, air and water destroyed by development, finishes off the possibility of its agriculture evolving out of the admittedly ridiculous state of the moment, caused however by very real economic pressures, into something more wholesome, better balanced, and more productive of crops and of livelihoods in farming. The vital potential this land and the dwindling but still expert farmers on it have to improve and adjust to better ways has already been severely injured. Neither California nor the nation can afford to let this Valley become the next Los Angeles.

The only way to change this course is to care and to participate.

This evening the Merced City Council Chambers was filled with people protesting every aspect of the proposed WalMart distribution center at a meeting called by the city as a scoping session before work begins on the draft environmental impact report. One speaker called for a moratorium on planning for the project until the county General Plan update is finished. Although the project is technically in the city, and therefore subject to the city's rather than the county's General Plan, the city General Plan is also being updated. The consultants and the city had advised the audience that they would not consider the problem of economic blight because the distribution center would not have any competition in the area. This drew pointed criticism from a number of neighbors of the proposed project who, based on the experience of neighbors of the Porterville WalMart distribution center, said their property values would plummet. One speaker from a subdivision near the proposed project said realtor were already discouraging homebuyers from investing in property near the distribution center.

A man with asthma with a grandchild with asthma, who works at a school where asthmatic kids cannot play outside on bad air days, said it best: we should be ashamed of ourselves, we should be thinking of our kids, instead we’re thinking of the dollar.

Developers and their bought-and-sold politicians have no right to pollute our air and water, they said.

Once you destroy this environment, you will not be able to clean it up even if you wanted to. It will become a big monument to capitalist greed, they said.

How many more truck accidents in the tule fog will be caused by the addition of 900-2,000 more trucks per day and night than we already have in winter, they asked.

Consultants preparing the environmental documents should not trust any data WalMart gives them, they said.

Bill Hatch
----------------------------

Published on Monday, July 24, 2006 by the Los Angeles Times

Global Warming-- Signed, Sealed, and Delivered
Scientists agree: The Earth is warming, and human activities are the principal cause.

by Naomi Oreskes

An Op-Ed article in the Wall Street Journal a month ago claimed that a published study affirming the existence of a scientific consensus on the reality of global warming had been refuted. This charge was repeated again last week, in a hearing of the House Committee on Energy and Commerce.

I am the author of that study, which appeared two years ago in the journal Science, and I'm here to tell you that the consensus stands. The argument put forward in the Wall Street Journal was based on an Internet posting; it has not appeared in a peer-reviewed journal — the normal way to challenge an academic finding. (The Wall Street Journal didn't even get my name right!)

My study demonstrated that there is no significant disagreement within the scientific community that the Earth is warming and that human activities are the principal cause.

Papers that continue to rehash arguments that have already been addressed and questions that have already been answered will, of course, be rejected by scientific journals, and this explains my findings. Not a single paper in a large sample of peer-reviewed scientific journals between 1993 and 2003 refuted the consensus position, summarized by the National Academy of Sciences, that "most of the observed warming of the last 50 years is likely to have been due to the increase in greenhouse gas concentrations."

Since the 1950s, scientists have understood that greenhouse gases produced by burning fossil fuels could have serious effects on Earth's climate. When the 1980s proved to be the hottest decade on record, and as predictions of climate models started to come true, scientists increasingly saw global warming as cause for concern.

In 1988, the World Meteorological Assn. and the United Nations Environment Program joined forces to create the Intergovernmental Panel on Climate Change to evaluate the state of climate science as a basis for informed policy action. The panel has issued three assessments (1990, 1995, 2001), representing the combined expertise of 2,000 scientists from more than 100 countries, and a fourth report is due out shortly. Its conclusions — global warming is occurring, humans have a major role in it — have been ratified by scientists around the world in published scientific papers, in statements issued by professional scientific societies, and in reports of the National Academy of Sciences, the
British Royal Society and many other national and royal academies of science worldwide.

Even the Bush administration accepts the fundamental findings. As President Bush's science advisor, John Marburger III, said last year in a speech: "The climate is changing; the Earth is warming."

To be sure, there are a handful of scientists, including MIT professor Richard Lindzen, the author of the Wall Street Journal editorial, who disagree with the rest of the scientific community. To a historian of science like me, this is not surprising. In any scientific community, there are always some individuals who simply refuse to accept new ideas and evidence. This is especially true when the new evidence strikes at their core beliefs and values.

Earth scientists long believed that humans were insignificant in comparison with the vastness of geological time and the power of geophysical forces. For this reason, many were reluctant to accept that humans had become a force of nature, and it took decades for the present understanding to be achieved. Those few who refuse to accept it are not ignorant, but they are stubborn. They are not unintelligent, but they are stuck on details that cloud the larger issue. Scientific communities include tortoises and hares, mavericks and mules.

A historical example will help to make the point. In the 1920s, the distinguished
Cambridge geophysicist Harold Jeffreys rejected the idea of continental drift on the grounds of physical impossibility. In the 1950s, geologists and geophysicists began to accumulate overwhelming evidence of the reality of continental motion, even though the physics of it was poorly understood. By the late 1960s, the theory of plate tectonics was on the road to near-universal acceptance.

Yet Jeffreys, by then Sir Harold, stubbornly refused to accept the new evidence, repeating his old arguments about the impossibility of the thing. He was a great man, but he had become a scientific mule. For a while, journals continued to publish Jeffreys' arguments, but after a while he had nothing new to say. He died denying plate tectonics. The scientific debate was over.

So it is with climate change today. As American geologist Harry Hess said in the 1960s about plate tectonics, one can quibble about the details, but the overall picture is clear.

Yet some climate-change deniers insist that the observed changes might be natural, perhaps caused by variations in solar irradiance or other forces we don't yet understand. Perhaps there are other explanations for the receding glaciers. But "perhaps" is not evidence.

The greatest scientist of all time, Isaac Newton, warned against this tendency more than three centuries ago. Writing in "Principia Mathematica" in 1687, he noted that once scientists had successfully drawn conclusions by "general induction from phenomena," then those conclusions had to be held as "accurately or very nearly true notwithstanding any contrary hypothesis that may be imagined…. "

Climate-change deniers can imagine all the hypotheses they like, but it will not change the facts nor "the general induction from the phenomena."

None of this is to say that there are no uncertainties left — there are always
uncertainties in any live science. Agreeing about the reality and causes of current global warming is not the same as agreeing about what will happen in the future. There is continuing debate in the scientific community over the likely rate of future change: not "whether" but "how much" and "how soon." And this is precisely why we need to act today: because the longer we wait, the worse the problem will become, and the harder it will be to solve.

Naomi Oreskes is a history of science professor at UC San Diego.

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The desperation of MCAG

Submitted: Jul 25, 2006

Last week the Merced County Association of Governments decided to put Measure A, the transportation sales tax defeated in June, back on the ballot in November, despite a poll that indicated it might not do any better then than it did either in June or in 2002. The MCAG, composed of all five supervisors and one elected official for each of the six incorporated cities in the county, in their judgment overrode the poll results, declaring that the November election will draw more voters than the primary did. The Merced Sun-Star opined without attribution that:

Only 24 percent of registered voters in the county -- about 22,500 people -- showed up to the polls, partly because of lackluster statewide issues and little competition among county races.

A much more attractive November ballot that includes billion-dollar infrastructure bonds and a governor's race is sure to draw more voters.

Evidently this is the received political wisdom on the upcoming General Election.

Might one suggest an alternative analysis?

Billion-dollar infrastructure bonds might get a few Mercedians out to vote against them, which does not on the surface, seem to favor a local half-cent sales tax increase.

The governor's race, featuring the Hun against the Developer's Democrat, Angelo's Boy in the Capitol, is shaping up to be a real ho-hummer of a race.

Locally, Rep. Dennis Cardoza, Shrimp Slayer-Merced, is running unopposed. Kathleen Galgiani, chief of staff of retiring state Assemblywoman, Barbara Matthews, D-Tracy, appears to have wired her succession to her boss's seat several years ago. The state Senate race, between incumbent Jeff Denham, Knucklehead-Salinas, and Wiley Nickel, Water Plutocrat-Merced, seems to turn on the fascinating political question of who can accurately define an exchange contract.

One can see long lines in front of polling places, stretching into the frosty night this November. The campaigns are so intense we cannot even see paid voter registrars chasing old ladies to their cars, begging for their signatures, whether they are registered to vote or not. Perhaps they are moving too fast for the human eye.

What could be called strength of leadership, if only by scribes paid to write it, from a charitable point of view could be called stubbornness. In fact, it is suspected resubmitting this measure to the voters in November is an act of sheer political desperation, and perhaps an unintended referendum on how much voters like leaders in the pockets of developers, UC, WalMart and the Riverside Motorsports Park -- the only real beneficiaries of this measure.

MCAG has a huge reputation problem on its hands, stemming from our newly acquired exalted political position after having won the Valley-wide sweepstakes for the San Joaquin Valley UC campus.

In the squalid fashion of UC flak, top bobcatflakster Larry Salinas told the Merced City Council last week that UC Merced was the only UC campus in the Central Valley. And here we thought there was a highway, I-80, that passed along the border between the San Joaquin and Sacramento valleys, not far from the Sacramento-San Joaquin Delta, through a college town called Davis, said to have been the site of a UC campus for nearly a century.

MCAG has been designated by the Hun administration in Sacramento to lead an eight-county San Joaquin Valley program, including eight councils of government working with Modesto-based Great Valley Center, to create a blueprint for growth to override the niceties of public process and state and federal environmental laws and regulations. These transportation COGS and CAGS are political institutions of nebulous land-use authority, which have banded together as the public in their counties have grown politically restive and are more actively resisting at the city and county government level the developer-driven slurbocracy the most immediate consequences of which are rapidly deteriorating air quality as well as other impediments to a decent quality of life.

Sacramento Area Council of Governments, which includes among other jurisdictions, Yolo County, where some say there is another UC campus, is the model for all this fine regional planning to avoid the niceties of law and regulation. Sacramento and nearby Placer counties have vied with Bakersfield for years for the worst air quality north of Los Angeles, and now they are winning the prize. Following these institutions will help you, your children or your parents' chances of being a candidates for a UC Merced study in respiratory disease once it gets that new medical school started.

If the Merced Board of Supervisors and city governments cannot con thier own citizens into voting a half-cent raise in sales tax to create a matching fund to attract Federal Highway Administration funds to build roads, how can they lead the other COGs and CAGs into a dimming, asthmatic future of slurb. If they cannot even con their own voters into making an abundant contribution to local greenhouse gases that will affect the Sierra snow pack, how can they lead other CAGs and COGs in the pockets of CalDevelopment, Inc., our real rulers, into this absurdly unhealthy future?

Oh, well, there are always the county’s new electronic voting machines, if all else fails.

Perhaps, Merced voters can send a message to the Federal Highway Administration that they do not want millions spent on widening Highway 99 so that WalMart can more easily get its 900 diesel trucks a day in and out of its proposed distribution center at the Mission Interchange. Perhaps, Merced voters can inform the FHWA that they are not interested in funding that interchange to provide one blue-and-yellow brick road to UC Merced. Perhaps, the Merced voters can explain to the FHWA that they are also disinterested in funding another blue-and-yellow brick road from Atwater to UC Merced, one which passes by property acquired in 2004 from an inmate of Sandy Mush County Jail by the sheriff who was incarcerating him, the DA who was prosecuting him, their good friend, the president of Ranchwood Homes, and several other prominent local investors.

All new roads and widened highways in Merced mean is more air pollution and more growth. Obviously, for example, a widened Highway 99 would make it more convenient for millions of stock-car racing fans to come to the proposed Riverside Motorsports Park in Atwater, and they would bring their ozone with them and leave it here.

Perhaps, people in Merced are smart enough to understand this and have begun to get irritated that their leaders are so willing to sell them out to any developer with another air-polluting, traffic-increasing, country-destroying project, and are growing more irritated by the day by their leaders ongoing insult to the voters' intelligence.

Yes, we do realize that something like 30 percent of our air pollution is blown over the hill to us from the Bay Area. But, it does not outrage us that we cannot become Fremont. We do have one of the more important agricultural economies in the world. Perhaps we need to work on that a little more than working on becoming the next great slurbocracy in California. And if we find that our elected officials want Growth Above All, maybe we need new elected officials, because this gang is not working for the best interests of its own public.

Bill Hatch
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Notes:

June 5, 2006

URGENT URGENT URGENT URGENT URGENT URGENT URGENT

A flyer against the Merced County Transportation Tax Measure A appeared in the Merced Sun-Star Monday morning. We have included it below and attached it to this message.

We urge you to read and share these flyers with Merced County residents before the Primary Election on Tuesday, June 6.

We should not use a sales tax to raise money for transportation funds to benefit special interests because a sales tax has an unfair impact on lower-income residents. (1) Merced County ranks fifth from the bottom of California’s 58 counties in per capita income. (2)

Sincerely, Central Valley Safe Environment Network

VOTE NO on Measure A Tax

MAKE Residential and Commercial Development Pay Its Own Way!

REJECT Welfare Subsidies for the Building Industry Association!

In 2002, the Citizens of Merced County VOTED DOWN the Measure M road-improvement tax. Merced County and its cities went right on approving thousands of new homes. This RECKLESS action is destroying hundreds of miles of our existing streets and roads because new development just doesn’t pay for itself.

Facts vs Claims on Measure A Tax

Measure A Claim: "We can be sure one thing won't go to Sacramento ... Every single dime of Measure A funds will stay right here in Merced County"

Fact: The Major funder behind Measure A is the California Alliance for Jobs, a consortium of statewide highway construction contractors and unions. We can be sure this additional sales tax will go here, there, and everywhere, including Sacramento.

Measure A Claim: "The state and federal governments cannot take one dime of Measure A funds"

Fact: Measure A is a matching fund gimmick to attract more than a billion dollars in state and federal highway funds that may arrive and be spent as state and federal government agencies decide. Your potholes are not on their lists. This is a make work scheme for statewide contractors and out- of- town union members.

Measure A Claim: "We're not betting the farm"

Fact: Measure A is certainly betting Merced County farms will be absorbed by urban growth. Even the Measure A “farm picture” appears to be out-of-state. Minnesota, perhaps?

Fact: Fresno County has had a transportation sales tax in place since 1986. Since that time, entire farming districts in Fresno County have been swallowed by urban sprawl. Fresno citizens are paying for development that does not pay for itself.

Fact: Measure A will induce Fresno-level sprawl, Fresno-level air pollution, Fresno-level asthma and Fresno-level political corruption investigations.

Fact: But even Fresno subjected its reauthorized transportation tax plan to public environmental review. Merced leadership wants you to pay the Measure A tax before they begin any public environmental review of the consequences of the sprawl these funds will induce.

Measure A Claim: "Projects include: Ensuring safer routes to school for local children"

Fact: The highest priority project Merced County leaders have is the Yellow Brick Beltway to UC Merced, connected to Highway 99 south of Merced and north of Atwater. There are less than a thousand UC Merced students and they come from all parts of California.

Measure A Claim: “using developer impact fees to supplement Measure A funds so that new growth pays its share of transportation costs”

Fact: Special interests want you to tax yourselves so they won’t have to pay for their impacts on your county. These special interests include: public developers like UC Merced and CalTrans; local, national and international homebuilders; highway construction companies and their unions; the statewide and international aggregate companies mining your rivers and creeks; your elected public officials and their staffs; and the local media.

Measure A Claim: "Citizen oversight: An independent taxpayer watchdog committee and annual third-party audits will ensure that Measure A funds are spent wisely"

Fact: Presently Merced County oversight is by ‘special interest’ only: This conversation between Ranchwood Homes owner and county supervisor Crookham shows how economic development really works in Merced.

Feb. 3, 2006: Mrs. Crookham, this is Greg Hostetler calling. My cell number actually is 704-13** if you need to call me. I’m on a cell phone cause my other battery I’m trying to save that, preserve it you know. I’m into preserving things too from time to time, but anyway, uhm, I’m just calling you, uh, to let you know that…ah if you don’t already know… that we’ve had a lot of drama and trouble in the county … everywhere I do business [inaudible] apparently I guess because of Mrs. uh…Mrs. Deirdre Kelsey ah… thinks staff may need some help, because she’s climbing all over them… using [inaudible] staff for her personal pit bulls…trying to bite our people, and our staff — this is my opinion — causing a lot of drama in Livingston, for the City of Livingston and we’re trying to uh in the progress of uh in the process of installing a sewer line over there. If you haven’t talked to Dee Tatum, he could fill you in on what’s going on over there. But uh this probably will not end any time soon. So, I just wanted to give you the update, and if you could give staff any help I’d appreciate it… Thank you! ..."

Here is a partial list of residential developments ALREADY planned for Merced County

Atwater - 1,584 units, Atwater Ranch, Florsheim Homes 21 Units, John Gallagher, 25.2 acres.

Delhi - 1,100 units, Matthews Homes, 2,000 acres.

Fox Hills - 907 units, Fox Hills Estates north 337 units, Fox Hills Estates, central- 1,356 units.

Hilmar-JKB Homes, over 3,000 units.

Livingston - 1,200 units, Ranchwood Homes 420 acres. Del Valle, Gallo Ranchwood, 1,000acres,

Los Banos -, Ranchwood, 932 acres 323 units, Pinn Brothers, 34 units, Court of Fountains, 2.7 acres 95 units, Woodside Homes,

City of Merced - 11,616 units, UC Merced Community Plan 1,560 acres; 7,800 units,

Ranchwood Homes, 2,355 acres, 7,000 units, Bellevue Ranch, 1,400 acres,

Vista Del Lago, 442 units, Weaver Development, 920 units, Fahrens Creek II, -1,282 units,

Fahrens Creek North, 1,093 units, Hunt Family Annexation,

Planada - 4,400 units, Village of Geneva at Planada, Hostetler 1,390 acres.

Felix Torres Migrant Megaplex 127 units, Park Street Estates, 31.8 acres, 200 units.

San Luis Creek 629 units, F & S Investments, 180 acres.

San Luis Ranch - 544 units, 237 acres.

Santa Nella - 8,250 units - Santa Nella Village west 881 units, 350 acres,

The Parkway, phase III, 146 acres - 138 units, Santa Nella Village, 40.7 acres - 544 units,

San Luis Ranch, phase II - 232 units, 312 acres - 182 acres, Arnaudo 1 &2

Stevinson - 3,500 units, Stevinson Ranch/Gallo Lakes Development - 1,700 units, 3,740 acres.

Winton - 50 units, 17 acres- Gertrude Estates, Mike Raymond, 18 acres - 142 units, Winn Ranch

Commercial Development

WalMart Distribution Center, Riverside Motorsports Park and a growing number of Strip Malls ….and the list goes on!

What You Can Do:

Vote No on Measure A Tax
Demand to participate in General Plans and community plan update process
Support public statements advocating slow growth or no growth until General Plans and Community Plans are legally compliant.

Paid for by the Committee Against Measure A Tax
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7-25-06
Merced Sun-Star
Measure A may make return trip to ballot...Chris Collins
http://www.mercedsunstar.com/local/story/12498850p-13214958c.html
Despite a poll conducted this month that says the half-cent sales tax that failed in June will do even worse if it is put up for a vote later this year, Merced County officials decided last week to place it on the November ballot. They say the measure, which would raise $446 million over 30 years to fix roads, will get the required two-thirds vote this time because more people will show up to the polls in November than in June. Measure A's failure...stunned many of its supporters. A much more attractive November ballot includes billion-dollar infrastructure bonds and a governor's race is sure to draw more voters. MCAG board members, which includes all five county supervisors and an elected official from each of the six cities in the county, say the county has a one-shot chance at taking advantage of $1 billion that will be set aside for "self-help" counties if voters approve the state bond measures on the November ballot.Sacramento-based Jim Moore Methods...polled 400 county residents earlier this month about the possibility of a November sales tax, concluded that the measure would get only 58 to 66 percent of the vote. "I would not recommend going forward with Measure A again this November," Jim Moore wrote in a letter to Brown. "The survey clearly shows that a November 2008 election date would provide Measure A with the next best chance for passage." If voters reject the measure again in November, it would be the third time a transportation sales tax would fail in Merced County in the last four years.
New measure:
• $10 million for Phase One of the Campus Parkway
• $85 million to widen Highway 99 to six lanes throughout the county
• $10 million for the Highway 152 bypass in Los Banos
• $8 million to widen Highway 59 from 16th Street to Black Rascal Creek
• $8 million to replace the Highway 140 Bradley overhead
• $6 million for Dos Palos street reconstruction

Wal-Mart project opinions sought...Leslie Albrecht
http://www.mercedsunstar.com/local/story/12498854p-13214978c.html
Concerned about what 450 trucks driving in and out of the proposed Wal-Mart distribution center every day would do to Merced's air quality. The city wants to hear from you Thursday... planners will host two public meetings. The answers will be ready in January 2007, when consulting group EDAW, Inc. is slated to finish the environmental impact report. The City Council approved EDAW's $344,655 consulting contract in May; Wal-Mart will pay for the entire project. Wal-Mart meeting...WHAT: Two public meetings about what should be studied in the environmental impact report for the proposed Wal-Mart distribution center. WHEN: 2:30 p.m. and 6 p.m. Thursday WHO: The afternoon meeting is for state and local government agencies and the public. The evening meeting is for the public. WHERE: City Council chambers, 678 W. 18th St.>/b>

| »

Mirage

Submitted: Jul 23, 2006

It’s fitting to speak of mirages when the Valley gets this hot.

The political mirage of the week, in the wake of former Merced County DA Gordon Spenser’s spectacular fall that ended in Bear Creek a week (just before a mysterious fire in the DA department’s offices), was the set-to between developer Greg Hostetler (Ranchwood Homes) and Supervisor Deirdre Kelsey at Tuesday’s Board of Supervisor’s meeting, exhaustively detailed below by the local press.

There is nothing like a juicy scandal. However, the whole thing was inevitable and is probably not the biggest political scandal waiting to unfold in Merced County.

All this drama, and the press and political obsession with making it all personal and a matter of integrity and reputation, is a waste of time and nothing but a scintillating diversion from the problem.

When urbanization comes, farming goes. It is a cold-blooded, ruthless process driven by the long-range planning of one small group, developers, and their profit taking. Everything else, including the reputations of particular developers and particular politicians, so engagingly showcased in this case, is a sideshow. Yes, it is flamboyantly Merced that the DA and the sheriff would have been partners in a deal to buy an advantageously placed land parcel from an inmate of the county jail indicted for attempted bribery of a police officer, who ended up serving six months instead of nine years. Yes, the peculiar blend of arrogance, stupidity, greed, and possibly actionable behavior is what we have come to have a perfect “right” to expect from “leadership” in Merced County.

Furthermore, we are not holding our breath in expectation that either Spenser, Pazin, Hostetler or any other members of the Bellevue Partnership (purchasers of the inmate’s land) will ever be indicted for anything, by Attorney General Bill Lockyer or the newly appointed DA, Larry Morse, II. Lockyer’s connections with Merced and Spenser are deep -- for instance, he has appointed two not one but two former Merced law enforcement officials to the top investigative position in the state Department of Justice -- and Morse has his own political career to look after. It is even a question how much further this investigation will go, if any further at all, because of what else might be found and who else, among the county’s “good old boys and girls” would be implicated in backroom land deals.

When the county “leadership” committed itself and the rest of us to becoming home to the University of California, Merced campus, it set in motion a speculative real estate boom that has laws of its own, not all of them legal, if you get the distinction.

There used to be another such informal law, in politics, that was pretty widely observed between the end of WWII and the election of Ronald Reagan as governor, and even the Reagan people mostly observed it. The idea was that the people would accept an ambition for political power and they will accept an ambition to get rich, but they will not – at least would not – accept an ambition for both in the same politician. The combination was felt to violate the public taste, which can lead to disasters now befalling Spenser and perhaps others soon to follow here in Merced County.

Another informal law from that bygone epoch was that an office holder was expected to be able to drink with people attempting to influence his vote, accept their political contributions and even their prostitutes, and vote against them the next morning.

Today, it is nauseatingly obvious here in the big speculative land boom that the loyalty of local, state and federal legislators representing Merced County has been sold to developers. You see it week after week in local land-use decision after decision, at the state level in the new Valley partnership for growth, and in Congress Rep. Dennis Cardoza, Shrimp Slayer-Merced, has introduced three bills in three years tailor-made to streamline the sale of farm and ranchland to developers and urbanize this area over the dead body of the Endangered Species Act and the species it is designed to try to protect.

All the protestations of personal insult, damage to reputation, even allegations of danger to a supervisor in the board chambers (because Hostetler called her out on her own profound conflicts of interest), are nothing but a Punch and Judy show. Anyone who has ever articulately opposed a board of supervisors’ or city council’s position in Merced County has received worse abuse from supervisors and council members than Kelsey received from Hostetler. One recalls grimly, former Supervisor Cortez-Keene’s McCarthyite interrogations, for example. More recently, board chairman Mike Nelson’s nasty response to any criticism and supervisor John Pedrozo’s belligerence toward it are equally fondly recalled. So, the public doesn’t buy Kelsey’s political vapors anymore than it buys Spenser’s memory loss.

The law in Merced County is that the most aggressive developer wins, period, whether it’s done crudely, as the scofflaw Hostetler does it, or more smoothly as larger, richer competitors of Ranchwood Homes do it, or with the elegant disdain of UC Merced, which steadfastly denies it is a developer at all while being the largest developer in the county. What is called “planning” in the county amounts to accommodation to development. Political competence consists of making sure developers agree to pay all legal expenses the county might incur as the result of lawsuits arising from their land-use decisions, which frequently violate aspects of the California Environmental Quality Act and laws of public process.

“Planning” in the county is a complete joke. The county has not updated its General Plan since before UC Merced was even contemplated and has chosen the route of simply amending it whenever necessary. It’s present face reminds one of members of Davy Jones’ crew in Pirates of the Caribbean. Now, with the university launched and the speculative boom gyrating out of control, local land-use jurisdictions are planning new general plan and community plan updates here, there and everywhere.

Even this tardy diligence is grudging and is planned to take about as long – as best it can be guessed – as the boom itself continues to its bust. The best thing for the public interest that could be done is to have a building moratorium while these updates, particularly the county general plan, are being done. When confronted with a public statement, signed by a coalition 15 local and regional groups, urging a moratorium, the supervisors voted for business as usual.

Whose interests do they represent?

Bill Hatch
-------------------------
Notes:

Coalition Statement on Merced County Planning Process

We call for a moratorium on County General Plan amendments, variances, minor sub-divisions changes to existing projects, zoning changes, and annexations of unincorporated county land by municipal jurisdictions, MOU’s and developments with private interests and state agencies, until a new County general Plan is formulated by a fully authorized public process – and approved locally and by the appropriate state and federal agencies.

The continual process of piecemealing development through amendments, willfully ignoring the cumulative impacts to infrastructure and resources, for the benefit of a small cabal of public and private special interests, is illegal and reprehensible conduct on the by elected and appointed officials of local land-use authorities.
We also call for a permanent moratorium on indemnification of all local land-use jurisdictions by private and public-funded developers.

Indemnification is the widespread, corrupt practice in which developers agree to pay for all legal costs arising from lawsuits that may be brought against their projects approved by the land-use authority — city or county. Without having to answer to the public for the financial consequences of decisions made on behalf of special interests, local land-use authorities can be counted on to continue unimpeded their real policy: unmitigated sprawl, agricultural land and natural resource destruction, constant increases in utility rates, layering of school and transportation bonds on top of property taxes, and the steady erosion of the county’s infrastructure.

Adopted 2006

San Joaquin Raptor/Wildlife Rescue Center
Protect Our Water
Central Valley Safe Environment Network
Merced River Valley Association
Planada Association
Le Grand Association
Communities for Land, Air & Water
Planada Community Development Co.
Central Valley Food & Farmland Coalition
Merced Group of Sierra Club
Citizens Committee to Complete the Refuge VernalPools.Org
California Native Plant Society
Stevinson Citizen’s Group
San Bruno Mountain Watch
San Joaquin Valley Chapter of Community Alliance with Family Farmers

CENTRAL VALLEY SAFE ENVIRONMENT NETWORK
MISSION STATEMENT

Central Valley Safe Environment Network is a coalition of organizations and individuals throughout the San Joaquin Valley that is committed to the concept of “Eco-Justice” — the ecological defense of the natural resources and the people. To that end it is committed to the stewardship, and protection of the resources of the greater San Joaquin Valley, including air and water quality, the preservation of agricultural land, and the protection of wildlife and its habitat. In serving as a community resource and being action-oriented, CVSEN desires to continue to assure there will be a safe food chain, efficient use of natural resources and a healthy environment. CVSEN is also committed to public education regarding these various issues and it is committed to ensuring governmental compliance with federal and state law. CVSEN is composed of farmers, ranchers, city dwellers, environmentalists, ethnic, political, and religious groups, and other stakeholders.
P.O. Box 64, Merced, CA 95341
--------------

Merced DA under fire for 2004 land deal
He, 7 other investors made deal with a man facing bribery charge
By Chris Collins
Merced Sun-Star

Last Updated: July 9, 2006, 05:20:05 AM PDT
California Attorney General Bill Lockyer has launched a third investigation into Merced County District Attorney Gordon Spencer, this time examining whether Spencer committed a crime when he and a group of local investors bought a piece of property from a man who was sitting behind bars and facing charges from the district attorney's office.

The latest investigation comes on top of an ongoing criminal probe into Spencer's potential embezzlement of public funds and an inquiry in December that found Spencer had impersonated an investigator.
The attorney general now is looking into a 21-acre lot on Bellevue Road that Spencer, Sheriff Mark Pazin, Ranchwood Homes owner Greg Hostetler and five other prominent locals bought in 2004.

The owner of the farmland, former Merced College police chief Richard Byrd, was arrested in March 2004 for bribing a sheriff's deputy. His bail was set at $500,000.

Byrd said his imprisonment forced his security company to go out of business and prompted his daughter to sell his land to help pay for attorney fees and other expenses.

Prosecutors in Spencer's office were working on a plea deal with Byrd in May 2004 when Spencer and the other investors pitched their offer to buy the land, according to public records and property sale documents Byrd provided.

Investors close deal

The investors, organized under the Campodonica Trust led by Merced real estate agent Carl Campodonica, closed the $1.3 million deal on the land July1, 2004. Byrd was released from jail 15 days later.
Frank Dougherty, the Merced County Superior Court presiding judge, said he has looked into the case and found that Spencer was "intimately involved" in pressing felony charges against Byrd.

It also is clear from property sale records that Spencer knew he was buying land from the man he was prosecuting. One document shows Spencer's and Pazin's signatures next to Byrd's name.
When the purchase went through two years ago, it drew little attention. But concerns about the deal have resurfaced in the wake of multiple investigations launched by state and local agencies examining Spencer's use of grant funds and county dollars.

The attorney general's investigation of the land deal could lead to extortion charges against Spencer.
Robert Weisberg, a Stanford law professor who specializes in white-collar crime, said Spencer's decision to pursue the land deal while prosecuting Byrd was "unbelievably bad."

"If the district attorney said to the defendant, 'I'm going to charge you with crime X, but if you reduce the price on your land, I'll give you a better deal,' then, boy, you could talk about extortion," Weisberg said.
Byrd said he never was approached by anyone from the district attorney's office while he was in jail. But he said he originally was told through his lawyer that he was facing nine years in state prison.

Byrd gets sentence reduced

After Byrd's daughter accepted the Campodonica Trust's offer to buy the land, Byrd was offered a plea deal that reduced his sentence to six months of county jail time.

Byrd also said he wonders why his $500,000 bail never was reduced.

Spencer did not return calls last week seeking comment. His Merced attorney, Terry Allen, said the attorney general's investigation is based only on "speculation."

"I assure you Byrd wasn't coerced into doing anything and Gordon wasn't doing anything to gain some advantage over him," Allen said.

Most of the other seven investors who were part of the Campodonica Trust either didn't return calls or said they didn't want to comment.

Hostetler, a local developer, said he joined the investment group at the last minute to help provide a little extra money needed to seal the deal. He said he didn't know Byrd was the seller.

Sheriff regrets joining group

The attorney general's office won't acknowledge it's investigating the land deal, but Pazin and Chief Deputy District Attorney Larry Morse II said two investigators and a deputy attorney general have interviewed them as witnesses about the property purchase.

Pazin said that, at the behest of Dougherty, he sent a letter to the attorney general a few weeks ago asking his office to look into the land deal.

The sheriff said that when he joined the Campodonica Trust he didn't see a problem with entering the land deal. But he said he now regrets joining the investors.

Pazin said he didn't realize he was buying land from Byrd, who was in the custody of the Sheriff's Department at the time, until the final stages of the deal.

"Is there anything neglectful that I did? The answer is no," Pazin said.

"But is there a perception issue? Yes. And I accept that."

News that Spencer bought the land from a man he was prosecuting has roiled some county supervisors.
"The whole thing sounds like a real bucket of rotting fish," Supervisor Deidre Kelsey said.

"I'm surprised that a transaction like that would occur."
----------------------

7-19-06
Merced Sun-Star
Land deal rhetoric flares up...Leslie Albrecht
http://www.mercedsunstar.com/local/story/12471197p-13189784c.html
Tension about recent press coverage of former District Attorney Gordon Spencer's land deal with Merced County Sheriff Mark Pazin and other prominent locals boiled over at the supervisors' meeting Tuesday when Ranchwood Homes president Greg Hostetler harshly criticized Supervisor Deidre Kelsey. Hostetler is one of the investors who bought land from a man while he was in jail being prosecuted by Spencer. During the meeting's public comment period, Hostetler leaned over the podium and read a statement that first refuted information in the Sun-Star story, then accused Kelsey of making "uncalled for comments." Hostetler said a Merced County civil grand jury investigation into Kelsey's family mining business five years ago left Kelsey in no position to pass judgment on others. This isn't the first time Hostetler and Kelsey have clashed. In March a voicemail message reportedly left by Hostetler was posted on the Web site Badlands Journal. In the message Hostetler accused Kelsey of using county staff members as her "personal pit bulls" to attack his employees.
-------------------------

Kelsey fires back in strongly worded letter to chairman
http://www.mercedsunstar.com/local/story/12481759p-13199319c.html
By Leslie Albrecht
LALBRECHT@MERCEDSUN-STAR.COM
July 21, 2006

The fire of controversy ignited when developer Greg Hostetler publicly criticized Supervisor Deidre Kelsey is heating up.

Kelsey fanned the flames with a letter to board chairman Mike Nelson saying that she felt afraid for her safety when Hostetler read a statement about her during the public comment period at Tuesday's supervisors meeting.

"I am extremely disappointed that NO ONE intervened appropriately to stop the personal attack coming at me from the podium," Kelsey wrote in her letter to Nelson.

Kelsey's letter also says Hostetler used the "county forum as a means to personally attack me and my family."

Hostetler called Kelsey's letter a "mischaracterization" of what happened at the meeting.

"It would be my opinion that Deidre has overreacted, is acting childish, and is spinning the truth," said Hostetler.

He called for Kelsey to resign immediately because of the findings of a 2001-2002 Merced County civil grand jury report that investigated a complaint about Kelsey's family's mining company.

Hostetler's comments at the Tuesday meeting were a response to a Sun-Star article about a land deal Hostetler made with former District Attorney Gordon Spencer, Merced County Sheriff Mark Pazin, and other prominent locals.

Hostetler, Spencer, Pazin and others bought the land from a man who was in jail awaiting prosecution by Spencer. The State Attorney General's office is investigating the deal.

Kelsey was quoted in the article saying, "The whole thing sounds like a real bucket of rotting fish."

At Tuesday's meeting Hostetler called Kelsey's comments "inflammatory and unprofessional."

He held up a copy of the 2001-2002 grand jury report -- which investigated a complaint about Kelsey's family's mining company -- and said that Kelsey had engaged in "unethical conduct."

The jury's report accused Kelsey of having a conflict of interest involving her family's mining business. Kelsey told the Sun-Star in 2002 that the report was the work of "a good-old-boy network" upset because she did not bow to economic special interests.

Kelsey said Nelson, as chairman of the meeting, should have stopped Hostetler's speech because he was harassing and haranguing her and "looking with hostility directly at me" and "leaning forward towards the dais."

"I demand to be provided with a safe workplace and I believe the law provides for the safety of elected officials while engaged in county business," the letter said.

Kelsey's letter asks that "this issue be resolved either through some action of (Nelson's) or through the collective actions of the Board policy immediately."

Nelson met with County Counsel Ruben Castillo on Thursday and asked him to provide a legal opinion about whether the supervisors can restrict public comment.

A state law called the Brown Act governs how elected bodies like the Board of Supervisors run their meetings, said Castillo, so any county policy would have to be in line with that law.

"I have a constitutional right to speak at a public forum," said Hostetler. "The government may not silence speakers on the basis of their viewpoint or the content of their speech.

"I will not be silenced. I live in America, not in Baghdad."

Nelson's seat on the supervisors' dais has a button that controls the microphone on the public podium. He said his role as chairman is to turn the mic off if a member of the public becomes disruptive.

"If I thought any member of the public was getting out of hand I would have asked for the sheriff to step in, but that wasn't the case," said Nelson.

Kelsey also faulted Sheriff Pazin and Undersheriff Bill Blake -- who were both in the audience during Hostetler's comments -- for not intervening during Hostetler's speech.

But Blake said he and the sheriff attend supervisors' meetings as participants, not police.

"I don't know what she wants us to do," said Blake. "I can't arrest him for being mean to the Board of Supervisors."

He added, "He didn't swear, he didn't threaten, he didn't yell ... I can't get up and say 'Greg you're breaking the law', because he's not. In fact, I would be afraid that a civil libertarian would think I was infringing under color of law on his free speech."

Kelsey said Hostetler's comments at the meeting caught her totally off-guard.

The meeting's original agenda included a ceremony where Kelsey was to receive a pin honoring her 10 years of service on the board, but the ceremony was postponed.

Instead, Kelsey found herself on the receiving end of Hostetler's criticism.

She said all elected officials can expect criticism, but Hostetler chose the wrong setting.

"That's the elbows and knees aspect of being in politics," said Kelsey. "However, in a public meeting doing county business is a different matter.

"There's a different set of expectations when I'm out and about in the community than when I'm sitting as a supervisor on the dais."

Reporter Leslie Albrecht can be reached at 385-2484 or lalbrecht@mercedsun-star.com.

Controlling speech at meetings and the Brown Act

A state law called the Ralph M. Brown Act governs how elected bodies like the Board of Supervisors run their meetings. The California First Amendment Coalition's Web Site includes this question and answer about limits on public comments.

Q: How far can an elected body go in controlling what speakers say in their comments?

A: In creating an opportunity for citizens to address a legislative body, the Legislature has created what is described in First Amendment jurisprudence as a limited public forum.

It is limited in the sense that speakers may be held to subject matter relevant to the meeting (or at least the agency's role) and may also be restricted by reasonable rules of time limitation and good order.

But, concluded the U.S. Ninth Circuit Court of Appeals, the First Amendment would not permit officials presiding in a public forum of even this limited scope to outlaw comment simply on the basis of its being offensive -- "personal, impertinent, slanderous or profane."

What they may do is react to actual disruption, which in the context of a government meeting can mean simply wasting time to the detriment of all others present.

Board of Supervisors transcript

To view or listen to the meeting, check the Board of Supervisors Web site: web.co.merced.ca.us/bos/archive.html

HOSTETLER: Good morning, everyone. My name is Greg Hostetler, 2000 M Street, Merced, California.
I am here today because of my concerns about recent events. I would like to say several things this board and public should know.

I am speaking for myself and not the Bellevue Partnership.

The real estate transaction involving Sheriff Mark Pazin and District Attorney Gordon Spencer was negotiated, signed and agreed to between two business professionals and the seller Mr. Byrd and his daughter.

Neither Mr. Spencer and Mr. Pazin had any negotiations as to the price, terms, and conditions of the purchase from Mr. Byrd. If anyone of the Board of Supervisors would like to see the contract I would be more than happy to show you.

I believe that the purchase contract was professional and ethical.

The property was listed with a Merced real estate company and placed on the MLS, Multiple Listing Service, for approximately 30 days or longer for all members to sell, which is around 700 sales people in the Merced area.

One offer was received for $1.1 million from a potential buyer. The seller countered, Mr. Byrd, with a $1.4 million counter offer. The counter offer was declined by the buyer.

The next offer was received for $1.3 million was presented to Mr. Byrd by two Merced professionals, and it was accepted by Mr. Byrd. Subsequently portions of the buyer's interest were sold to other individuals in Merced, including the sheriff, including myself and a number of other partners and the district attorney. Because the seller wanted an all-cash transaction at $61,000 an acre, which is in the county. The property adjacent to it, two months earlier, sold for approximately $36,000 an acre. It has been reported that the land was annexed and rezoned. That is incorrect.

Several local investors and business professionals felt it was not a good enough investment so they declined to purchase a share.

I think hypothetical comments without the facts about the transaction are uncalled for such as those made by Stanford law professor and comments made by Deidre Kelsey.

They are inflammatory, unprofessional, and do not show the leadership qualities this county needs.

I think Deidre Kelsey's conduct is unethical on a number of issues. One being the operation of the mine of the Kelsey property in Snelling which has been the subject of a former grand jury investigation and it was reported that it had been operated for at least six years and failed to pay county road taxes ...

NELSON: Mr. Hostetler ...

HOSTETLER: ... and operating in a fishing business without county ordinance permitted ...

NELSON: Mr. Hostetler.

HOSTETLER: Yes.

NELSON: I would ask you to confine your comments to not attacks on board members please.

HOSTETLER: It's open public I can talk about the grand jury investigation ....

NELSON: I understand that ...

HOSTETLER: ... and I'm going to talk about it.

NELSON: Well you have a minute and four seconds.

HOSTETLER: That's fine. And I understand that. There's an ongoing investigation I understand to the operation of the mining there now and hopefully it will not go unenforced like the last time according to the grand jury report. Thank you.

(Kelsey left the chamber during Hostetler's comments. After Hostetler was done, she returned and sat down.)

KELSEY: If people bring things up that pertain to myself or my family in this forum I will recuse myself from the public forum at that time. And you can see I did leave and I have now come back.

(At the end of the meeting, each supervisor makes a report. Nelson's included the following comments.)

NELSON: I have nothing to report necessarily, but I did want to say, you know we always welcome people to come make comments during public opportunity to speak, but it's nice when people don't make personal attacks. It's just not, really, it's just not appropriate. That's all I have to say.
----------------------

DA still in hospital
http://www.mercedsunstar.com/local/story/12439963p-13161488c.html
By Scott Jason
SJASON@MERCEDSUN-STAR.COM
Last Updated: July 13, 2006, 01:38:01 AM PDT

The Merced County district attorney remained in the hospital Tuesday night with short-term memory loss after a rollover crash Monday night, his attorney said.

Terry Allen, Gordon Spencer's attorney, said he called Spencer as a friend to check his condition.

"He can't remember anything from two to three days ago," Allen said, adding Spencer can't recall the circumstances surrounding the crash.

Spencer was taken by his wife to Mercy Medical Center Merced after the wreck. He could not be reached for comment.

The California Highway Patrol is continuing its investigation into the crash, though it doesn't look like any charges or citations will be filed, Public Information Officer Shane Ferriera said.

The district attorney, who was wearing a seat belt, was driving alone on South East Bear Creek Drive at about 5 p.m., Ferriera said.

Spencer was a mile east of McKee Road when he apparently didn't follow a left curve and plunged his truck into the creek.

He did not appear to be under the influence of drugs or alcohol, Ferriera said.

A 35 mph sign is posted just before the turn. The CHP is not sure if Spencer was speeding, Ferriera said.

A man who lives near the crash site, Dan Smith, and his two children found Spencer and helped him call his wife. Assisting people who drive their cars into the creek is nothing new, Smith said.

"We treated him and did for him what we've done for a dozen other people," Smith said.

Smith's 9- and 12-year-old sons were tubing down the creek when they found Spencer's truck upside down at 5:30 p.m. Only the wheels and undercarriage were visible above the water.

They told their dad, who thought the truck was abandoned because people have stolen cars, stripped them and dumped them in the creek, he said.

When the two boys went back to get the Ford F-150's license plate number, they saw Spencer waist-high in the creek leaning against the bank.

Smith's 12-year-old son asked if Spencer needed help, and said the district attorney mumbled he didn't.

The son went home and told his dad there was a man in the creek.

After seeing the kids, Spencer crossed the creek and started walking toward Smith's home, about a quarter-mile from the crash, Smith said.

Spencer, wearing khaki pants and a button-down shirt, told Smith he was OK, and that he was driving, missed a turn and wrecked his truck.

There weren't any signs the district attorney was drinking or under the influence of drugs, Smith said.
"He acted like someone who had been in an eye-opening wreck," he said.

Smith recognized Spencer as the district attorney and brought him to his house to make a call.

"He was fine and talking with no apparent injuries, except an abrasion on his face from an air bag," Smith said.
Spencer called his wife from Smith's phone, and she took him to the hospital at about 6:30 p.m. She reported the crash to the CHP at 8:10 p.m., Ferriera said.

Leaving the scene and seeking treatment, as Spencer did, is not uncommon in single-vehicle wrecks with minor injuries, Ferriera said.

"It's not like it was a hit-and-run," he said.

The investigating officer interviewed Spencer at the hospital and tested him for driving under the influence.

Ferriera said the test includes looking for the smell of alcohol, slurred speech or red, watery eyes.

Ferriera said he did not know if Spencer was given a breathalyzer test.

The Merced County Sheriff's dive team checked the truck to make sure there weren't any other people in it. After 11 p.m., tow trucks removed Spencer's truck from the creek.

Timeline of the wreck

5 p.m. -- District Attorney Gordon Spencer rolls his Ford F-150 truck into Bear Creek.
5:30 p.m. -- A neighbor and his kids find Spencer and let him use their phone to call his wife.
6:30 p.m. -- Spencer's wife picks him up and takes the district attorney to Mercy Medical Center Merced.
8:10 p.m. -- California Highway Patrol officers are called about Spencer's crash. The investigating officer goes to the hospital to interview Spencer and test him for driving under the influence.
11:15 p.m. -- Tow trucks remove Spencer's pickup from the creek.

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Sierra snowpack problem

Submitted: Jul 12, 2006

Viewing Al “the former next president” Gore’s “An Inconvenient Truth” at the State Theater in Modesto the other night reminded me of the political disaster of the last six years and taught me that the velocity of climate change is faster than I had imagined. The installation of the Bush regime by the US Supreme Court in 2001 inaugurated a period of pure destruction in the US, a rampage of injustice, imperialism and greed, an orgy of lawless aggression by the wealthy against the rest of us few if any living Americans have ever seen. One casualty of the war of the Bush regime against the world was any concern for the environment. Fortunately, there were a number of wise laws in place and although they have been attacked and weakened greatly, and although enforcement of them has been savaged by this regime, most of them are still in place.

One has to wonder how this purely destructive policy over the last six years has contributed to the increased velocity of global warming, in view of the fact that the US is the world’s top producer of greenhouse gases. Perhaps if Gore had been chosen by the high court instead of Bush, we might be watching a decline in greenhouse gases; perhaps the US would be trying to do its duty, trying to be responsible, trying to help, instead of merely destroying everything on behalf of a plutocracy in favor of the government.

When we come to the problem of the decrease in the Sierra snowpack, however, we must consider that the closest contributor to the conditions causing it is the Central Valley between Sacramento and Fresno. Rampant, uncontrolled, irresponsible growth in this region has roofed over and paved over hundreds of thousands of acres of farm and ranch land that absorbed heat rather than radiating it. Yet, despite the research, all the state seems to be able to conclude from it is that our water supply will change – there will be less water stored for shorter periods as snow and more flooding from rain. Practically speaking, all this means in the near term is that the Great California Water War will continue and become more fierce because, clearly, we are all victims of each other and, of course, the fish or the laws that protect them.

We will think and say absolutely anything to avoid responsibility for our profound and growing contribution to melting the snowpack that provides most of our water. There is no malefactor too bogus to attract the enmity of our leaders, whose fingers are resolutely pointed outward. This is because the Central Valley, particularly the San Joaquin Valley, has clawed its way up from being a large, wet horse pasture to the verge of becoming the next San Fernando Valley, almost entirely as a result of the willingness of government to make the investment in irrigation systems that converted the Valley into an agricultural marvel. People in Bangor, ME, Mobile AL, Chicago, Beaumont TX, Helena MT, Las Truchas NM – people from all over the US contributed taxes to create the federal water projects that got the Valley past the horse-pasture stage. As they contributed to the construction of the railroad before the water.

As a result of this government largesse, our leaders believe that everything is nothing but another deal. But if Gore and the abundant responsible science behind him are correct, global warming cannot be solved by another political deal. Even the perpetually gullible, generous federal government cannot bail us out of this one.

The irresponsibility of the lastest speculative building boom, induced locally by the arrival of UC Merced, is reduced by the local McClatchy chain outlet to a story of how a DA and a sheriff ripped off a prisoner in a land deal. While it is evidence of the general stupidity, venality and political corruption occurring during any huge speculation, and “personalizes” the story, it diverts our attention from the problem. The public did not protect itself from its politicians. The public did not stand up for its own interests against the small, powerful cabal of businessmen, landowners, investors, politicians and their obedient propagandists. The public did not stand up against the awesome, amoral authority of the University of California and its edifice complex. The public in this region, contributing so much greenhouse gas to the Sierra, no longer seems capable of critical thought, can be bullied by two-bit frauds in office, accepts the lies of the local media at face value, is effortlessly intimidated by any authority, and is losing power economically, socially and politically the larger its population grows because no population anywhere near this size was ever intended to live in this place and support itself.

The only real question in the minds of our leaders today is how can the federal and state government fix the Sierra snowpack problem. They will rally prominent citizens and go to Washington and Sacramento and make their Big Whine again. It’s their one tune and it is getting more ridiculous by the year. Our leaders want clean air, more clean water, a healthy environment and, most of all, more growth. Now that we have the UC among us, ghoulishly planning medical research into lung disease with such a growing population of subjects, we are told that through the magic of UC marvelous technological inventions, it will all soon be OK again, we can become the new San Fernando Valley with a wonderful environment.

Our leaders have created a perfect set of mirrors to conceal reality and to admire themselves.

Bill Hatch
-----------------------------------------
Notes:

Sacramento Bee
Climate report sees a thirsty future...Matt Weiser
http://www.sacbee.com/content/news/v-print/story/14276733p-15086051c.html
As global warming continues and California's mountain snowpack decreases, the state can expect to see a drastic drop in its drinking and farm water supplies, as well as more frequent winter flooding...findings in a report released Monday by the state Department of Water Resources...338-page study, offers the most detailed look yet at how climate change could affect California water supplies. Average deliveries to cities and farms from state and federal water systems could shrink by more than 10 percent, according to the report. Called "Progress on Incorporating Climate Change into Management of California's Water Resources," the report employs two climate-change models and two emissions scenarios, one involving rapid growth and the other presenting a slower, more sustainable growth pattern. The results were not ready to be included in the California Water Plan Update, a report released last year that helps plan the state's growth. But Kelly said it offers a vital message for local governments.

Merced Sun-Star
Spencer purchased land from jailed man...Chris Collins
http://www.mercedsunstar.com/local/story/12425122p-13147572c.html
California Attorney General Bill Lockyer has launched a third investigation into Merced County District Attorney Gordon Spencer, this time examining whether Spencer committed a crime when he and a group of local investors bought a piece of property from a man who was sitting behind bars and facing charges from the District Attorney's Office. The latest investigation comes on top of an ongoing criminal probe into Spencer's potential embezzlement of public funds and an inquiry last December that found Spencer had impersonated an investigator. The attorney general is now looking into a 21-acre lot on Bellevue Road that Spencer, Sheriff Mark Pazin, Ranchwood Homes owner Greg Hostetler, and five other prominent locals purchased in 2004. The intersection of the two events created a clash that was "absolutely impermissible" by attorney ethics standards, said Weisberg, the Stanford law professor. "There was a conflict of interest. " Dougherty, the county's presiding judge, said Spencer never told Byrd's attorney about his involvement in buying Byrd's land. Kelsey said she always has been troubled that the sheriff and district attorney joined one of the county's biggest developers to buy the land.

Modesto Bee
Valley's environmental problems don't get fair hearing...Brad Baker
http://www.modbee.com/opinion/community/story/12409164p-13133834c.html
Are you ready for the equivalent of 10 new Fresnos? That's how many new people are expected in the San Joaquin Valley by 2040, according to experts from the Great Valley Center.... it's time to update the old cliché, "Growth is inevitable." Here are the replacements: Soul-sucking monstrous growth is inevitable. Don't like that one? How about: Cookie-cutter developments covering the most productive farmland in the history of the world are inevitable. Or maybe: Growth that is extremely unhealthy for children and other living things is inevitable. Which is your favorite? I moseyed down to Fresno last week for the Blueprint Summit. I hope for a fair presentation of the environmental perspective; I'm always disappointed. A token environmentalist often is included in the program...the "environmentalist" was a river runner from ElDorado County. His remarks avoided the most pressing environmental issues of the valley: air quality, sprawl, farmland preservation and the influence of the building industry on local politics. Sprawlocrats rule. In local elections, our only choices are the candidates who seem least likely to receive text-message instructions from the building industry during public meetings.

Los Angeles Times
Repeat of tragedy feared in San Joaquin Drainage Plan. Proposal for tainted San Joaquin drainage raises concerns about causing a new ecological disaster....Bettina Boxall
http://www.latimes.com/news/local/la-me-kesterson8jul08,1,3140367,print.story
LOS BANOS, Calif. — More than two decades after toxic farm drainage emptying into a small wildlife refuge stilled the chatter of migrating waterfowl with death and deformity, the federal government is on the verge of deciding what to do with vast amounts of tainted irrigation water still produced by San Joaquin Valley croplands. The U.S. Bureau of Reclamation is under court order to do something about the drainage problem. But its proposed solutions — which involve treating the tainted water and taking a huge chunk of farmland out of production — have raised alarms that they could wreak more environmental havoc while costing federal taxpayers a potentially enormous sum. Now, the Bureau of Reclamation's proposal to create at least 1,270 acres of evaporation ponds as part of the drainage treatment has again raised the specter of Kesterson. A final decision is expected this summer.

Stockton Record
Delta salt battle intensifies...Warren Lutz
http://recordnet.com/apps/pbcs.dll/article?AID=/20060709/NEWS01/607090319/1001
STOCKTON - The fight over salt in the Delta appears headed to court. Several groups, including the U.S. Bureau of Reclamation, have filed lawsuits against state water officials over new salt standards. And the Department of Water Resources, the other main supplier of drinking water to 23 million Californians, is considering the same. They are not the first legal actions involving Delta salt levels, which plague local farmers with lower crop yields. But they are the first since the state Water Resources Control Board ordered water exporters to meet a new salt standard or risk losing permits that allow them to control the bulk of the state's water. Agencies that buy Delta water also are suing the water board. One of them, the San Luis and Delta-Mendota Water Authority, claims the water exporters are not the only ones responsible for high salt in the Delta. Several lawsuits were filed against the state Water Resources Control Board on June 15 in Sacramento County Superior Court. The U.S. Bureau of Reclamation also has filed a federal lawsuit, a water board spokeswoman said.

Modesto Bee
We're ready for next step to improve valley air...Seyed Saredin, executive director of the San Joaquin Valley Air Pollution Control District.
http://www.modbee.com/opinion/community/story/12432034p-13154335c.html
The San Joaquin Valley's severe air-quality problems present an opportunity for the valley to shine. Success will require bold, innovative actions by the San Joaquin Valley Air Pollution Control District; the public's willingness to make air-friendly behavioral changes; better land-use decisions and design for communities that will minimize vehicle travel; and continued investment by valley businesses in technology and pollution control...we will need the state and federal governments to do their share through funding and regulatory assistance to reduce emissions from cars, trucks and locomotives. Ours was the first region in the nation to take steps to regulate emissions from on-field agricultural operations and dairies; to require mitigation from new commercial, residential and industrial developments; and to control emissions from large wineries. The San Joaquin Valley air district was the first in the state voluntarily to expand Smog Check II, a model now used to check Bay Area vehicles for emissions compliance. We have successfully implemented some of the toughest air regulations in the nation, while offering businesses reasonable operational flexibility. Over the next year, the district will formulate a plan to meet new standards. We will hold town hall meetings... The first meetings are July26 in Bakersfield and Delano, July27 in Fresno and Huron, and July28 in Modesto and Stockton. Please visit www.valleyair.org for more information.

There's plenty of water -- we just need to manage it intelligently...Dan Walters
http://www.modbee.com/opinion/state/walters/story/14277088p-15086272c.html
All Californians should know that their water doesn't come from a faucet, but is collected, stored and distributed through monumental arrays of dams, reservoirs, canals and pipelines that supplement nature's own impressive water systems. It's an imperfect system, to be certain, but it has worked admirably... California must expand and refine its waterworks. To do nothing in the face of that change is to move backward. The governor's warning about potential flood peril was underscored by the 338-page Department of Water Resources report on potential effects of global warming... DWR also noted that as the weather warms, California may receive more of its water in the form of rain and less in the form of snow, which could heighten winter flood dangers and reduce the natural reservoirs of mountain snowpacks. In truth, California has lots of water, more than enough to satisfy all reasonable demands for human and natural uses, if it's managed intelligently and with users paying its full, unsubsidized costs. We do not need to radically change our lifestyles or adopt doomsday scenarios. Even if the effects of global warming seen in the DWR report come true, stronger winter flows can be converted into better summer supplies, if we do what's needed and stop circular debates that serve other ideological agendas.

Sacramento Bee
Water's coming battle...Editorial
http://www.sacbee.com/content/opinion/v-print/story/14277040p-15086253c.html
A new report warning of global warming's effect on California highlights the different approaches for solving the problem of a shrinking water supply. When it comes to calibrating water supply and demand, two opposing political philosophies rule. There is the concrete crowd that wants to increase supply. And there is a conservation crowd that seeks to lower the demand. The singular political fixation on reservoirs as good or evil creates a set of false choices. On the supply side, there is groundwater storage or better groundwater management... The right mix of solutions depends on the specific circumstances and terrain. The wrong solution is to think concrete or conservation alone can solve all our problems.

Stockton Record
Smelt still at record lows...Warren Lutz
http://recordnet.com/apps/pbcs.dll/article?AID=/20060712/NEWS01/607120330/1001
STOCKTON - The Delta smelt are hanging on, but just barely. The endangered fish that are used to gauge the overall condition of the Delta remain at record lows, according to the latest survey. Meanwhile, scientists studying the decline are being asked increasingly how to reverse the trend. Last week, the federal government said it would re-examine the effects of pumping Delta water, but there has been no formal discussion about changing the way the pumps are run, said Louis Moore, a U.S. Bureau of Reclamation spokesman. The California Department of Water Resources, the other agency responsible for exporting Delta water, will draft a Delta smelt action plan by October. Johns agreed scientists are under pressure for answers, not just data.

Los Angeles Times
Schwarzenegger acts to guard State Wilderness. The governor will ask federal officials to ban new roads for mining and other development in 4.4 million acres of national forest...Robert Salladay
http://www.latimes.com/news/local/la-me-roads12jul12,0,7373545,print.story?coll=la-home-local
SACRAMENTO — Ending one of his remaining fights with environmentalists, Gov. Arnold Schwarzenegger will ask the federal government today to protect 4.4 million acres of national forests from any new roads for timber, oil or gas exploration or other development. If approved, the Schwarzenegger plan would allay environmentalists' fears that national forest land in California would be opened to development, endangering fish and wildlife. The governor's request was in response to a controversial Bush administration rule that opened millions of "roadless" areas nationwide.
Seabird slaughter in a 'Safe' Harbor. Could the deaths of thousands of terns in Long Beach have been prevented?...Kimball L. Garrett and Kathy C. Molina
http://www.latimes.com/news/opinion/commentary/la-oe-garrett12jul12,0,5232993,print.story?coll=la-home-commentary
IT SHOULD SURPRISE no one that the coast of Southern California is a difficult place for wildlife to make a living. Tens of millions of people, busy ports, toxic urban and agricultural runoff, overexploitation of marine resources and the relentless destruction of rivers and estuaries make it astonishing and somehow reassuringly life-affirming that thousands of terns - slim seabirds related to gulls - manage to nest along our shores. But the events of last week - when the bodies of several hundred young Caspian and elegant terns were found littering the Long Beach Harbor shore, and the nesting efforts of perhaps 2,000 adult terns on two barges in the port were carelessly erased - underscore the clumsiness of our wildlife-protection efforts and the tenuous threads that sustain our remaining natural heritage. "Terngate" also points to a fundamental problem: Our management of wildlife is disproportionately centered on the protection of the few species that have met the proper political tests to earn and keep an "endangered" or "threatened" designation. The only tern colony site in Los Angeles/Long Beach harbor that has received protective management is for the California least tern, listed by the state and federal agencies as endangered. That's insufficient when species such as the Caspian and elegant terns are kept on the run.

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Just one more day in Corruptionville

Submitted: Jul 10, 2006

The land speculation that has set in on Merced County has turned men into pigs. It seems that one of the parallel phenomena to real estate speculation in the county was a renewed focus on "leadership." Suddenly, everybody was talking about "leadership." "Leadership" got as popular as huge, oversized, flipping real estate investment, stacking water allotments on the west side, and gutting the federal Endangered Species Act.

Lord save us from "leadership" like this.

Bill Hatch
-------------------------------------------------
Attachment:

Spencer purchased land from jailed man...Chris Collins
http://www.mercedsunstar.com/local/story/12425122p-13147572c.html
California Attorney General Bill Lockyer has launched a third investigation into Merced County District Attorney Gordon Spencer, this time examining whether Spencer committed a crime when he and a group of local investors bought a piece of property from a man who was sitting behind bars and facing charges from the District Attorney's Office. The latest investigation comes on top of an ongoing criminal probe into Spencer's potential embezzlement of public funds and an inquiry last December that found Spencer had impersonated an investigator. The attorney general is now looking into a 21-acre lot on Bellevue Road that Spencer, Sheriff Mark Pazin, Ranchwood Homes owner Greg Hostetler, and five other prominent locals purchased in 2004. The intersection of the two events created a clash that was "absolutely impermissible" by attorney ethics standards, said Weisberg, the Stanford law professor. "There was a conflict of interest. " Dougherty, the county's presiding judge, said Spencer never told Byrd's attorney about his involvement in buying Byrd's land. Kelsey said she always has been troubled that the sheriff and district attorney joined one of the county's biggest developers to buy the land.

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Valley blueprint for speculator exploitation and ecological disaster

Submitted: Jul 06, 2006

Last week, the Great Valley Center held a special conference in Fresno, called the “Blueprint Summit,” where, according to conference propaganda, “citizens and leaders from throughout the San Joaquin Valley launched a regional effort to plan for the future of the region.”

There was clearly something being launched out of a backroom somewhere – probably the state Capitol. The majority of roughly 600 participants were staff of state and local government and representatives from the development industry, among a smattering of elected officials, and a few “citizens.” Audience launching activities consisted of listening to a number of impassioned harangues from speakers cued into the program, drawing a few lines on maps, and responding to a few cooked questionnaires.

The sample was fatally skewed and certainly not representative of citizens and leaders. It was representative primarily of paid government staff and growth-related industries.
In short, the poll it pretended to be was rigged. The GVC, now a partner of the University of California, Merced, should be called the UC/GVC. And because UC is involved, polite editorial opinion cannot admit the poll was rigged. UC Merced, although perceived by Valley economic elites as the Golden Egg Itself, still must be handled very gently for fear it could break.

Badlands, which is an honest journalism organization, doesn’t mind special interests standing up and telling the public what they want. But, Badlands insists they be honest enough to be moreorless believable. And they aren’t. It leads us to speculative that what they really want is absolutely against the public interest, the common good, and the Public Trust.

The purpose of the meeting seemed to be to convince the media that 600 members of the Valley UC/GVC-designated “leadership” decided emphatically that regional planning was obligatory to override the weak, corrupt, legally attackable planning processes of eight counties and their cities to find an acceptable political way for these jurisdictions to override existing legal environmental review processes.

Why would UC/GVC want to do that? First, because there is grant money in it. As people in the Valley are beginning to resist more development for public- health as well as quality-of-life reasons, developers are turning up the political and propaganda heat.

The scale of recent UC/GVC events has grown massive. They feature audiences in the hundreds, large central podiums winged with huge monitors magnifying in triplicate the face and gestures of every speaker. These gatherings give us the disturbing feeling of having wandered into the wrong hall, where there is some sort of faith rally taking place. Everything in the room and every word from the speakers’ lips is one great exhortation to believe.

The good news is we’re all dead and this life is but a dream. The bad news is that, instead of going to Heaven, we got stuck in a Sinclair Lewis novel.

Marjie Kirn, deputy executive director of the Merced County Association of Governments, actually led the group in a short pep rally:

“Give me an S. Give me a J. Give me a V. San Joaquin Valley, Rah!”

The “citizen” component of the crowd felt uncomfortable. Perhaps, however, the terms of UC/GVC grant required Kirn to lead this yell as a demonstration of how the audience was actually launching “a regional effort to plan for the future of the region,” instead of doing something useful like:

launching a regional moratorium on growth until air quality improves, until groundwater supplies and quality are at least stabilized, and until general plans are updated through the legal processes that mandate full citizen participation;

launching a regional moratorium on sales tax increases to fund growth-inducing transportation expansions; or

launching a regional moratorium on the illegal taking of protected wildlife habitat.

Give me a M-O-R-A-T-O-R-I-U-M! Rah!

The majority of the crowd, state and local government staff, were all for the program outlined by their superiors. It was a little creepy for the few “citizens” in the audience to see quite how determined to see how our “leaders” are leading us over a cliff, which GVC calls a bump in the road, and UC sees as an opportunity for medical research.

Two speeches stood out for the Badlands editorial staff: the first by the executive director of the Tulare County Farm Bureau, the next by UC Merced Chancellor, Carol Tomlinson-Keasey.

The Farm Bureau man said California agriculture was headed for another round of concentration into fewer corporate hands. Then he took his gloves off. He wrote off any future for family farmers, except perhaps in a few “niches.” To the extent these niches would be organic, genetic pollution from the rising tide of genetically engineered crops will insure they are temporary, last-gasp niches – a prospect the did not dismay the Farm Bureau man. Below Fresno, they see the future as Big Dairy and perhaps, Big Cotton, if Boswell can figure out how to keep the subsidy without calling it a subsidy. Fresno, Tulare and Kern counties are bitter about the Friant decision that will take some water out of the Friant-Kern Canal to let the San Joaquin River flow in western Fresno County for the first time in 50 years. Agriculture, particularly in Tulare, will suffer somewhat. But family farming in Tulare to southern Kern County has been dying since the late 1940s. The Farm Bureau man assured us marketing orders are things of the past, neatly nullifying the efforts of several earlier generations of farm leaders and legislators to help stabilize smaller farms by this means of cooperative marketing.

It is likely Rep. RichPAC Pombo, Buffalo Slayer-Tracy, poised to leave his chairmanship of the House Resources Committee to become chairman of the House Agriculture Committee in a Farm Bill year, will find a way to take cotton and dairy money, convince the public agricultural subsidies are finished, and continue agricultural subsidies.

Valley agriculture is far too important to ever be left to the leadership of the Farm Bureau. Its future, as Farm Bureau members throughout the Valley daily sell off prime farmland to developers, is in fact the most important subject of all for the Valley non-farming public outside of air quality, the deteriorization of which is a direct result of selling off prime farmland for real estate development.

This is a clown character of the sort Luis Valdez used to present on flatbed trucks. On the el teatro campesino stage, he would have worn a big card saying “Corporate Agribusiness Clown” over his T-shirt and the workers would have laughed. But at UC/GVC nobody laughs, at least out loud, when the corporate agribusiness clown says his lines, because there is no form of political corruption – from a Pombo Farm Bill to a San Luis Drain from Kesterson to the Delta to a Peripheral Canal to the next new town on prime farmland on the Valley floor – in which this mob of true believers would not put their faith.

UC Merced Chancellor Tomlinson-Keasey told the audience that the Valley needs to recapture the medical insurance dollars now leaking over the hill to Bay Area health facilities. To do that, we must back UC Merced’s campaign for a medical school, which will offer aspiring research physicians ample opportunity to study pediatric and geriatric respiratory disease as the speculative housing boom, in part inspired by UC Merced, continues to shoulder its way forward, ever year insuring that the San Joaquin Valley will attain and maintain its designation as the worse air pollution basin in the US. She emphasized that the Valley doesn’t have as many doctors as other regions of California. Familiar as some are with the chancellor’s statistics, we take that with a grain of salt. But, if it were true, it would point to the good sense of physicians to not take themselves and their families into an area so environmentally unhealthy as well as unremunerative.

She also discussed UC Merced plans for research and development of new solar technologies to make at least the campus the true environmentally friendly campus of the future.

From the beginning of the UC San Joaquin Valley land deal, the chancellor has emphasized that the Valley needed to train its children with a UC education so that they would come back and serve it. We do, in fact, export a lot of children to college who never find their way back, and the amenity of a UC could make a difference. But there seems to be an on-going neurosis at UC Merced about creating a curriculum that responds to the Valley. This medical school campaign is typical of a sort of frantic dithering, changing directions, unsteadiness, that tells at least critics of the project that although the regents and the administration and the politicians had a very clear idea about starting a speculative real estate boom around the campus, they’ve paid little or no attention to the education offered. Students, justifiably as near as one can tell, are not responding well. The reputation of UC Merced is not helped by announcements this winter and spring that the chancellor, the provost, one vice chancellor, the dean of social sciences, and the environmental compliance director, have all left.

This is not really the best example of “service to the Valley.” It is not the sort of instability the Valley respects or trusts, and it justifies every suspicion about this campus being nothing but a “boondoggle” and a “land deal.”

Now that UC Merced and the Great Valley Center have formed a partnership, we are being suffocated in a completely technocratic discussion, no more than a fig leaf over development deals to be done anyway, on topics of the most profound ethical importance. Each time one goes to these conferences, one hears participants grasping fragments of technological or financial information as if they were planks from a wrecked ship as we tread water in a deep, filthy sea.

In the interests of the “moral clarity” so highly prized by Valley true believers, let us suggest that is it immoral:

to create the worst air pollution basin in the US;

to concentrate Valley agriculture into as few corporate hands as possible;

for the UC Regents and a few landowners, investors and politicians to have stimulated this speculative real estate boom by siting a campus here;

for the UC Regents to encourage the gutting of the Endangered Species Act so that they can develop UC Merced on protected habitat;

to dry up the biggest river in the Valley for the benefit primarily of agribusiness.

to make this contribution to global warming;

that UC leadership consists in nothing more than an immortal corporate campaign for research funds; there is no intrinsic relationship between that research and the location of the campus;

to conduct weapons-of-mass-destruction research. UC cannot say that, because they are completely involved in it. The Valley can say it and must say it and act on the statement, if the Valley doesn’t want it going on in the backyard;

for the development industry to engage in the wholesale corruption of local, state and federal environmental law and regulation – designed to protect human health and natural resources.

Absurd as it sounds, there is no ethical content to the UC/GVC, official, “public,” “ground-up” debate about the future of the San Joaquin Valley. First, there is nothing “ground-up” about having a room stacked with government staffers and representatives from the development industry writing answers on questionnaires prepared by their own consultants. When discussing these matters publicly, as “leaders,” yhey babble like mechanical rabbits. They do not speak like human beings in search of values, as all human beings must be. We are behaving as if this speculative boom is a virtual moral vacation.

Carol Whiteside, founder and CEO of the Great Valley Center, concluded the conference with a warning that “leaders” will have to have “courage” to face these problems. Badlands agrees. Eventually, with the kinds of decisions being made today, the public is going to get very angry at the daily amoral “decision-making process,” the Old Valley Whine about how if you don’t approve the next subdivision the economy will fail, all the moribund, wrong slogans they use, and the wholesale destruction of the habitat for wildlife. People do not like to see their children and grandparents in asthmatic distress. People wonder where all the birds went. People resent their waterways being turned into agricultural sewers. It will take “courage” to stand up against rising resistance to go on approving subdivisions for one’s campaign contributors.

Whiteside’s exhortation to “courage” was intended for the majority of the audience who were local and state government staff. “Courage,” in this sense, means turning a blind eye to environmental devastation and deteriorating quality of life, and a deaf ear to members of the public who resist them.

Although there have been better and worse moments through the years, it must be said, overall that the UC/GVC is in the business of converting the charitable crumbs from corporate tables, in the form of its grants, to manipulate Valley public opinion into a state of timidity, anxiety and – above all – political impotence when perfectly good local, state and federal law stands ready to be used if only the public would have the courage to use it. If UC/GVC did anything else, they would not get those grants. It cannot do other than support more urbanization – a disastrous and unconscionable policy.

What ought to anger the Valley public is that, just at the moment when resistance to growth and environmental devastation is beginning to have some effect, the governor, elected officials, the Central Valley councils of government, CalTrans, the developers and UC/GVC are trying to change the rules. They justify this in terms of all the usual deal clichés: “win/win, public/private partnerships,” “consensus,” all managed by corporation-trained “value-free facilitators.” The public mind fogs over, as it is intended to fog over, and as it will continue to fog over as long as it expects help from anyone but itself and as long as it cringes before the possibility of political and legal conflict.

To save itself from a really wretched – perhaps unprecedented – ecological disaster with consequences far beyond its own discomfort, the Valley public needs to use existing law created for its protection right now. It also needs to simply oust from power cynical politicians. It needs to just ignore the UC/GVC and get on with the business of saving its communities, including developing economies to cope with ecological realities – one at a time.

D-O-N-T R-U-I-N O-U-R H-O-M-E! Rah!

Until the Valley begins to make decisions that are intelligent and ethical, it deserves the reputation it has:

a region so stupid and corrupt it elects representatives like Pombo and Dennis Cardoza, Shrimp Slayer-Merced, Devin Nunes, Rightwing Babbler-Visalia, and George Radanovich, Bankrupt Winemaker-Mariposa;

permits a speculative real estate boom to occur on some of the finest farmland in the world;

allows subsidized corporate agribusiness to continue to squander public water;

allowed the west side to pollute groundwater, create an environmental disaster at Kesterson, and still be considering draining that toxic soup to the Delta;

allows the state to let the Delta levees disintegrate while developers build on flood plains;

does nothing to promote and protect family farming;

allows what may soon be a disastrous interruption in the Pacific Flyway for migratory waterfowl;

permits the destruction of its own environment;

prefers to seethe in resentment against the criticism it so justly deserves for having allowed the creation of an extremely unequal society on top of extremely rich land – for having preferred country clubs and homeless people to good small farms.

However, there was a saving grace to the UC/GVC conference, a special survey of the Central Valley by the Public Policy Institute of California. This opinion poll revealed the information that people in the Central Valley consider air pollution a big problem, in percentages that follow the amount of air pollution in their area – from 26 percent in the North Valley to 59 percent in the South Valley.

The most interesting section of the survey, and the most threatening to UC/GVC and its stacked audience, showed the following:

Seventy-three percent of all Valley adults favored “protecting the wetlands and rivers, and other environmentally sensitive areas, even it this means there will be less commercial and recreational development;”

Sixty-seven percent of Valley adults favored “restricting the development of housing on land that has a significant risk of flooding, even it this means there will be less housing available;”

Sixty-five percent favored “restricting urban development on farms and agricultural lands, even if this means there will be less housing available.”

These findings indicate there is a clear majority of public opinion against most of the decisions that many in the audience are making. The UC/GVC Blueprint Summit is part of a vast propaganda effort by developers and politicians to stay ahead of this growing negative public opinion.

This returns us to the Pomboza, that strange, congressional wannabe Endangered Species Act-destroying monster out of the North San Joaquin, Rep. Pombo in front, Rep. Cardoza behind. The Pomboza was created on the day last year when San Joaquin developer, Fritz Grupe, who is the vice chairman of the governor’s California Partnership for the San Joaquin Valley, had Pombo and Cardoza to a joint fundraiser with other developers at his Lodi ranch.

On Tuesday, Cardoza and Pombo split roughly $50,000 raised at a bipartisan fund-raiser sponsored by prominent developer Greenlaw “Fritz” Grupe. Grupe is active in both San Joaquin and Stanislaus counties, with subdivisions underway in Modesto, Turlock, Hughson, Waterford and Stockton.

Grupe also favors the kind of collaborative work Cardoza and Pombo have done on the Endangered Species Act and other issues. While agreeing the joint fund-raiser held at the developer’s Lodi ranch was “rather unique,” Cardoza said it sent the right kind of signal.

“Frankly, if we cooperated more aggressively, we would all be better off,” Cardoza said … -- “Valley political bonds strong,” Oakland Tribune, April 1, 2005, Michael Doyle, Modesto Bee.

It sent a “signal” that politicians and the developers who own them are now “more aggressively” cooperating against the public opinion of those in the impacted political districts.

The “signal” sent by the fundraiser may have spurred the political efforts to create this partnership, certainly a “more aggressive” way for developers and politicians to cooperate.

But, because all that this more aggressive cooperation between politicians and developers can produce is a lower quality of life, which is beginning to impact voters to the point they are talking about it and becoming bolder by the month before local land-use authorities, what else becomes crystal clear to voters is that the so-called strong valley political bonds are in fact nothing but strong financial bonds between developers and politicians.

If more evidence is needed, consider the Pomboza’s attempt in recent days to make FEMA hold off publishing new flood-plain maps until after the election.

Bill Hatch
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Coalition Statement on Merced County Planning Process

We call for a moratorium on County General Plan amendments, variances, minor sub-divisions changes to existing projects, zoning changes, and annexations of unincorporated county land by municipal jurisdictions, MOU’s and developments with private interests and state agencies, until a new County general Plan is formulated by a fully authorized public process – and approved locally and by the appropriate state and federal agencies.
The continual process of piecemealing development through amendments, willfully ignoring the cumulative impacts to infrastructure and resources, for the benefit of a small cabal of public and private special interests, is illegal and reprehensible conduct on the by elected and appointed officials of local land-use authorities.

We also call for a permanent moratorium on indemnification of all local land-use jurisdictions by private and public-funded developers.

Indemnification is the widespread, corrupt practice in which developers agree to pay for all legal costs arising from lawsuits that may be brought against their projects approved by the land-use authority — city or county. Without having to answer to the public for the financial consequences of decisions made on behalf of special interests, local land-use authorities can be counted on to continue unimpeded their real policy: unmitigated sprawl, agricultural land and natural resource destruction, constant increases in utility rates, layering of school and transportation bonds on top of property taxes, and the steady erosion of the county’s infrastructure.

Adopted 2006

San Joaquin Raptor/Wildlife Rescue Center
Protect Our Water
Central Valley Safe Environment Network
Merced River Valley Association
Planada Association
Le Grand Association
Communities for Land, Air & Water
Planada Community Development Co.
Central Valley Food & Farmland Coalition
Merced Group of Sierra Club
Citizens Committee to Complete the Refuge VernalPools.Org
California Native Plant Society
Stevinson Citizen’s Group
San Bruno Mountain Watch
San Joaquin Valley Chapter of Community Alliance with Family Farmers

CENTRAL VALLEY SAFE ENVIRONMENT NETWORK
MISSION STATEMENT

Central Valley Safe Environment Network is a coalition of organizations and individuals throughout the San Joaquin Valley that is committed to the concept of “Eco-Justice” — the ecological defense of the natural resources and the people. To that end it is committed to the stewardship, and protection of the resources of the greater San Joaquin Valley, including air and water quality, the preservation of agricultural land, and the protection of wildlife and its habitat. In serving as a community resource and being action-oriented, CVSEN desires to continue to assure there will be a safe food chain, efficient use of natural resources and a healthy environment. CVSEN is also committed to public education regarding these various issues and it is committed to ensuring governmental compliance with federal and state law. CVSEN is composed of farmers, ranchers, city dwellers, environmentalists, ethnic, political, and religious groups, and other stakeholders.

P.O. Box 64, Merced, CA 95341
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Governor knows Valley's needs...Our View
http://www.mercedsunstar.com/opinion/story/12295162p-13030255c.html
Arnold Schwarzenegger's big green bus rolled into Modesto on Thursday... Voters will decide whether to climb aboard the governor's "Protecting the California Dream" bus in November, when they choose between Schwarzenegger and Phil Angelides, who won the Democratic nomination in Tuesday's primary. But regardless of their political persuasion, Valley residents should know -- and be pleased -- that we have, for the first time in memory, a governor who is impressive in his interest in and knowledge of our region. It's refreshing to finally have a governor willing to use his political influence -- and in this case his celebrity power -- to advocate for the Valley.
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Forum looks at valley issues...Garth Stapley
http://www.modbee.com/local/story/12295194p-13030298c.html
California Partnership for the San Joaquin Valley - The valley's work force already suffers from lack of vocational training, several speakers said. Keith Boggs, senior management consultant for economic development in the Stanislaus County chief executive's office, described a dearth of "human infrastructure." The Modesto-based Great Valley Center is spearheading portions of the governor's partnership effort, including a review of growth policies that could lead to regional land-use recommendations. The Building Industry Association of Central California's Kevin Stone warned against taking growth control too far..."We propose that economic development in the Central Valley supersedes the interests of those who simply desire no change at all," he said. The partnership hopes to circulate a draft "strategic action proposal" in mid-September andpresent a final version to Schwarzenegger in November.
On the Web: www.bth.ca.gov/capartnership/sanjoaquinvalley_moreinfo.asp#meeting0607_0906.
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6-29-06
Merced Sun-Star
Hundreds help map Valley's blueprint...Russell Clemings, Fresno Bee
http://www.mercedsunstar.com/local/story/12385361p-13111938c.html
FRESNO -- Land use planning seminar...650 people attended the kickoff of a two-year effort to define what the San Joaquin Valley will look like 20 years from now...San Joaquin Valley Blueprint project will spend $2 million in state funds to plan for a population that is expected to double by 2040. By late 2007, the effort is expected to publish a set of goals for areas such as transportation, economic development, housing and environmental protection. Other products will include plans for better coordination of major infrastructure, such as highways, with local land use decisions, and a joint pool of data to analyze planning decisions and their effects. ...it is likely to meet with skepticism if not resistance among local leaders reluctant to cede control over land use and related matters. Mark Baldassare, director of a newly released Public Policy Institute of California survey of 2,000 Valley residents, said the results showed widespread public support for regional planning to deal with issues such as air pollution, population growth and loss of farmland.
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Modesto Bee
UC Merced plan for medical school must be a priority...Editorial
http://www.modbee.com/opinion/story/12385466p-13112083c.html
A medical school proposal by University of California at Merced represents the best opportunity for the San Joaquin Valley to get a medical education facility in a region that desperately needs doctors. This project is as important as any public-policy initiative in the valley, and it's time our community leaders give it the attention it deserves. The UC Merced proposal is a visionary plan that would leverage current medical facilities in the valley by using partnerships with regional health providers. It also would utilize the resources of sister campuses UC San Francisco and UC Davis. UC Merced said the intention is to attack the physician shortage in the valley, and have an emphasis on training physicians who are competent in multicultural health care and committed to serving the needs of the San Joaquin Valley. There's strong evidence that new physicians settle into practice near where they train. Having a medical school can help.
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Stanislaus grappling with growth...Tim Moran
http://www.modbee.com/local/story/12385476p-13112069c.html
How can the county's cities and county government make sure there are enough homes, roads, sewers and water to accommodate them? How can they avoid the turf wars and other impediments to good planning that have marked development in the past? How can they preserve agriculture as an industry in the face of such growth? The county's board of supervisors and its cities' mayors met Wednesday to grapple with those issues...discussion dealt mostly with how to frame the solution. Land use attorney George Petrulakis said planning could start by identifying areas that shouldn't be developed. Another suggestion was a strategic investment plan to put limited public dollars into the roads, parks and sewers that will most effectively shape the county's growth.
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Proposed half-cent road tax gains speed with Turlock's approval...Michael R. Shea
http://www.modbee.com/local/story/12385475p-13112068c.html
TURLOCK — The City Council backed a $1 billion countywide traffic plan. Voters likely will have their say on the tax in November's election. The Stanislaus County Council of Governments has proposed a half-cent sales tax increase that could bring $34 million a year over 30 years to pay for road improvements. But before the plan reaches the taxpayers it needs city, then county approval. Turlock joined Hughson, Riverbank, Patterson and Newman in voting in favor of the plan. The plan needs nods from five of the nine councils, representing more than 50 percent of the county's city-based population...consumers would pay 7.875 percent sales tax, up from 7.375 percent. The lion's share of the money would be dedicated to maintenance and improvement projects.
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Fresno Bee
City seeks way around a land law...Tim Sheehan
http://www.fresnobee.com/local/sv/story/12385418p-13112007c.html
VISALIA — City leaders hope to enable long-term conservation of prime farmland while also stemming the flow of local money to Sacramento. Officials are exploring a way for farmland owners who wish to develop their property to cancel conservation contracts by putting money toward the permanent preservation of equal acreage elsewhere near the city. The examination is being spurred by Mangano Homes, a Visalia development company planning a major project on 580 acres in northwest Visalia. 450 acres of the proposed Lowrey Ranch project is under Williamson Act. Bob Dowds, vice president of Mangano Homes, said his company hopes to take advantage of a process known as "1240 exchanges." In a 1240 exchange, instead of the cancellation fee going to the state, it would be used to purchase development rights on nearby farmland, creating a permanent "agricultural conservation easement."
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Modesto Bee
Bridge plan spurs talk in Waterford...Adam Ashton
http://www.modbee.com/local/story/12390340p-13116397c.html
WATERFORD — The city's new growth plan could set it up for the construction of at least 1,300 homes, but so far, one proposed bridge is channeling the discussion on how fast the community should grow...bridge would connect older neighborhoods on Bentley Street to an area where Stockton-based Grupe Co. wants to build a 350-acre subdivision. Pattie Hulst...it's unrealistic to plan on linking a new subdivision to downtown. "There's going to be two towns." Mayor Charles Turner said he doesn't like the idea of a bridge crossing the canal. Turner backs limited growth in Waterford. Grupe helped pay for the general plan update that could allow its subdivision's construction. The plan is expected to be finished by the end of the year, and Grupe would then be able to pursue annexations for the Lake Pointe development.
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Contra Costa Times
Council blasts UC proposal for campus projects...Martin Snapp
http://www.contracostatimes.com/mld/cctimes/news/local/states/california/alameda_county/berkeley/14937626.htm
The Berkeley City Council reacted angrily Tuesday night to the University of California's draft environmental report for its Southeast Campus Integrated Projects plan. Planning Director Dan Marks delivered a blistering critique of the report that barely stopped short of accusing the university of bad faith. Among his complaints:
· Conclusions based on inadequate information: "The draft EIR continues to fail to provide sufficient information for adequate analysis,...
· Insufficient analysis of alternatives: "The city requested that the university not identify self-serving 'straw men' alternatives that were clearly infeasible or did not meet project objectives,"...
· Continuing lack of evidence to support that "Best Practices" mitigates impacts: "The university intends to rely on a series of so-called "continuing best practices" to mitigate the impact of the projects,"...
· Poor evaluation of seismic safety and traffic impacts:...
Mayor Tom Bates hinted that the city might not be as cooperative as before regarding town/gown projects, including the proposed multi-million dollar downtown hotel/convention center the city and university are developing together.
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Badlandsjournal.com

The Blockhead Partnership for the San Joaquin Valley
Tuesday, May 23rd, 2006
The newest “vision” for the San Joaquin Valley, according to the California Partnership for the San Joaquin Valley, which graced us with its prestigious presence last week in Merced, is composed of four elements:
· rapid urbanization;
· destruction of local, state and federal environmental law, regulation and resource-agency enforcement;
· demand for state and federal public funds to pay […]
Posted in Environment, State government, Growth
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Grassland Water District letter to county Board of Supervisors re: amendment policies during the General Plan update process
Sunday, May 14th, 2006
The following letter was submitted by attorneys for the Grassland Water District and Grassland Resource Conservation District to the Merced County Board of Supervisors for its May 2 hearing on General Plan Amendment policies and procedures during the General Plan Update process. The letter has been transcribed from a facsimile. – Bill Hatch
Posted in Environment, Federal government, Agriculture, Water, Growth,
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Merced County
Below the tipping point
Wednesday, May 17th, 2006
This year’s Great Valley Center conference was unusually duplicitous, even by the Center’s relaxed standards. Its title, “At the tipping point,” contrasted to the presentations throughout the two days, creating a sense of cognitive dissonance attributable, no doubt, to the Center’s recent merger with the University of California.
The conference poster invited its viewers to look […]
Posted in Environment, University of California, San Joaquin Valley, Growth
What’s a county General Plan review steering committee, anyway?
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Monday, May 15th, 2006
This letter was submitted to the Merced County Board of Supervisors for its May 2nd continued hearing on proposed General Plan Amendment policy and procedures during the General Plan Update process. The board decided that day, among several options presented by the General Plan Review Steering Committee, to continue business as usual. The representative for […]
Posted in Law, Merced County
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Some things to think about on Measure A
Sunday, June 4th, 2006
URGENT
City of Merced Measure C raised sales tax to 7.75%. With passage of Measure A, Merced City sales tax would be 8.25%. A half a cent less than the highest sales tax rates in the state. Sales taxes fall hardest […]
Posted in Environment, Public health and safety, Growth, Merced County, Public works, Economy
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URGENT URGENT URGENT URGENT URGENT URGENT URGENT

A flyer against the Merced County Transportation Tax Measure A appeared in the Merced Sun-Star Monday morning. We have included it below and attached it to this message.

We urge you to read and share these flyers with Merced County residents before the Primary Election on Tuesday, June 6.

We should not use a sales tax to raise money for transportation funds to benefit special interests because a sales tax has an unfair impact on lower-income residents. (1) Merced County ranks fifth from the bottom of California’s 58 counties in per capita income. (2)

Sincerely, Central Valley Safe Environment Network

Correction in CVSEN Sunday's emailer contained inaccurate information. The amount is 5 cents on $10.
------------------------------------------------------------------------------------

VOTE NO on Measure A Tax

MAKE Residential and Commercial Development Pay Its Own Way!

REJECT Welfare Subsidies for the Building Industry Association!

In 2002, the Citizens of Merced County VOTED DOWN the Measure M road-improvement tax. Merced County and its cities went right on approving thousands of new homes. This RECKLESS action is destroying hundreds of miles of our existing streets and roads because new development just doesn’t pay for itself.

Facts vs Claims on Measure A Tax

Measure A Claim: "We can be sure one thing won't go to Sacramento ... Every single dime of Measure A funds will stay right here in Merced County"

Fact: The Major funder behind Measure A is the California Alliance for Jobs, a consortium of statewide highway construction contractors and unions. We can be sure this additional sales tax will go here, there, and everywhere, including Sacramento.

Measure A Claim: "The state and federal governments cannot take one dime of Measure A funds"

Fact: Measure A is a matching fund gimmick to attract more than a billion dollars in state and federal highway funds that may arrive and be spent as state and federal government agencies decide. Your potholes are not on their lists. This is a make work scheme for statewide contractors and out- of- town union members.

Measure A Claim: "We're not betting the farm"

Fact: Measure A is certainly betting Merced County farms will be absorbed by urban growth. Even the Measure A “farm picture” appears to be out-of-state. Minnesota, perhaps?

Fact: Fresno County has had a transportation sales tax in place since 1986. Since that time, entire farming districts in Fresno County have been swallowed by urban sprawl. Fresno citizens are paying for development that does not pay for itself.

Fact: Measure A will induce Fresno-level sprawl, Fresno-level air pollution, Fresno-level asthma and Fresno-level political corruption investigations.

Fact: But even Fresno subjected its reauthorized transportation tax plan to public environmental review. Merced leadership wants you to pay the Measure A tax before they begin any public environmental review of the consequences of the sprawl these funds will induce.

Measure A Claim: "Projects include: Ensuring safer routes to school for local children"

Fact: The highest priority project Merced County leaders have is the Yellow Brick Beltway to UC Merced, connected to Highway 99 south of Merced and north of Atwater. There are less than a thousand UC Merced students and they come from all parts of California.

Measure A Claim: “using developer impact fees to supplement Measure A funds so that new growth pays its share of transportation costs”

Fact: Special interests want you to tax yourselves so they won’t have to pay for their impacts on your county. These special interests include: public developers like UC Merced and CalTrans; local, national and international homebuilders; highway construction companies and their unions; the statewide and international aggregate companies mining your rivers and creeks; your elected public officials and their staffs; and the local media.

Measure A Claim: "Citizen oversight: An independent taxpayer watchdog committee and annual third-party audits will ensure that Measure A funds are spent wisely"

Fact: Presently Merced County oversight is by ‘special interest’ only: This conversation between Ranchwood Homes owner and county supervisor Crookham shows how economic development really works in Merced.

Feb. 3, 2006: Mrs. Crookham, this is Greg Hostetler calling. My cell number actually is 704-13** if you need to call me. I’m on a cell phone cause my other battery I’m trying to save that, preserve it you know. I’m into preserving things too from time to time, but anyway, uhm, I’m just calling you, uh, to let you know that…ah if you don’t already know… that we’ve had a lot of drama and trouble in the county … everywhere I do business [inaudible] apparently I guess because of Mrs. uh…Mrs. Deirdre Kelsey ah… thinks staff may need some help, because she’s climbing all over them… using [inaudible] staff for her personal pit bulls…trying to bite our people, and our staff — this is my opinion — causing a lot of drama in Livingston, for the City of Livingston and we’re trying to uh in the progress of uh in the process of installing a sewer line over there. If you haven’t talked to Dee Tatum, he could fill you in on what’s going on over there. But uh this probably will not end any time soon. So, I just wanted to give you the update, and if you could give staff any help I’d appreciate it… Thank you! ..."

Here is a partial list of residential developments ALREADY planned for Merced County

Atwater - 1,584 units, Atwater Ranch, Florsheim Homes 21 Units, John Gallagher, 25.2 acres.

Delhi - 1,100 units, Matthews Homes, 2,000 acres.

Fox Hills - 907 units, Fox Hills Estates north 337 units, Fox Hills Estates, central- 1,356 units.

Hilmar-JKB Homes, over 3,000 units.

Livingston - 1,200 units, Ranchwood Homes 420 acres. Del Valle, Gallo Ranchwood, 1,000acres,

Los Banos -, Ranchwood, 932 acres 323 units, Pinn Brothers, 34 units, Court of Fountains, 2.7 acres 95 units, Woodside Homes,

City of Merced - 11,616 units, UC Merced Community Plan 1,560 acres; 7,800 units,

Ranchwood Homes, 2,355 acres, 7,000 units, Bellevue Ranch, 1,400 acres,

Vista Del Lago, 442 units, Weaver Development, 920 units, Fahrens Creek II, -1,282 units,

Fahrens Creek North, 1,093 units, Hunt Family Annexation,

Planada - 4,400 units, Village of Geneva at Planada, Hostetler 1,390 acres.

Felix Torres Migrant Megaplex 127 units, Park Street Estates, 31.8 acres, 200 units.

San Luis Creek 629 units, F & S Investments, 180 acres.

San Luis Ranch - 544 units, 237 acres.

Santa Nella - 8,250 units - Santa Nella Village west 881 units, 350 acres,

The Parkway, phase III, 146 acres - 138 units, Santa Nella Village, 40.7 acres - 544 units,

San Luis Ranch, phase II - 232 units, 312 acres - 182 acres, Arnaudo 1 &2

Stevinson - 3,500 units, Stevinson Ranch/Gallo Lakes Development - 1,700 units, 3,740 acres.

Winton - 50 units, 17 acres- Gertrude Estates, Mike Raymond, 18 acres - 142 units, Winn Ranch

Commercial Development

WalMart Distribution Center, Riverside Motorsports Park and a growing number of Strip Malls ….and the list goes on!

What You Can Do:

Vote No on Measure A Tax
Demand to participate in General Plans and community plan update process
Support public statements advocating slow growth or no growth until General Plans and Community Plans are legally compliant.

Paid for by the Committee Against Measure A Tax

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Who does the Pomboza think it is, anyway?

Submitted: Jul 05, 2006

Given the money at stake, it's highly suspicious that U.S. Reps. Richard Pombo, R-Tracy, and Dennis Cardoza, D-Merced, and other lawmakers are urging FEMA to delay the release of preliminary maps. FEMA had planned to release the maps in October, weeks before the November election. -- Sacramento Bee editorial, July 2, 2006
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That Pomboza is up and galloping through the countryside again, all four legs working together as it tries to stomp those new FEMA flood maps somewhere far beyond the sunshine of timely public review. But as the ugly beast runs along the levees of the Delta, note well the rigging that control its coordinated movements. You are watching political corruption in action right before your very eyes, selling out public health and safety to developers.

The Pomboza's mumbled protests of innocence are unintelligible absurdities. All that happened here was that the Pomboza got caught. All we hear is the sound of wind whistling through the rigging, the clop-clop-clop of the Pomboza's hoofs upon the levee road, and the plop-plop-plop of one more sell-out of the public to special interests.

Who does the Pomboza think it is, anyway? The public better pay attention to this beast because it means no good to anyone but itself, it has expensive tastes, and it does not believe the public has a sense of smell.

Bill Hatch
----------------

7-3-06
Sacramento Bee
Reality bites...Editorial...7-2-06
http://www.sacbee.com/content/opinion/v-print/story/14273956p-15083900c.html
Delaying release of FEMA maps would help politicians, not communities at risk. Egged on by developers and local politicians seeking re-election, several Central Valley congressmen are urging the Federal Emergency Management Agency to delay the release of updated maps that will provide homeowners and businesses a more accurate picture of flood risks. FEMA should resist this pressure. The government hasn't updated most of these maps for 20 years, despite several damaging -- and revealing -- floods during that period. The problem is that new maps frighten local officials... Given the money at stake, it's highly suspicious that U.S. Reps. Richard Pombo, R-Tracy, and Dennis Cardoza, D-Merced, and other lawmakers are urging FEMA to delay the release of preliminary maps. As Cardoza notes, these FEMA maps are preliminary. The reason for releasing them is so communities can review them, debate them and understand how they might affect insurance and land-use plans before any final versions are approved. FEMA recently bowed to pressure in remapping flood plains in New Orleans, putting thousands at risk. It shouldn't do the same here -- especially not for a handful of politicians who would rather enhance their re-election chances than face the realities of floods.
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Tracy Press
Delaying the inevitable?...Phil Hayworth
http://www.tracypress.com/local/2006-07-03-Delay.php
Many people living along California's 1,600-mile levee system are living in a flood plain, but government maps often don't designate the area as such...new federal flood insurance maps coming out in October could put many more businesses and homes in the designated flood plain, forcing cities to spend millions on repairing local levees and homeowners to spend roughly $1,200 a year on mandatory flood insurance. A group of California lawmakers led by Rep. Richard Pombo, R-Tracy, is hoping to stall the release of the new maps - some think at least until the November election. "This information is critical and must be calculated correctly," Pombo said...along with 17 other California congressional representatives... Jeffrey Mount, a U.C. Davis geology professor and former state reclamation board member..."Don't you want to let the people who live behind the levees know what the level of risk is?" Mount and others think the lawmakers are trying to stall the release of the maps because they will bring more -- perhaps many more -- areas into the flood plain that weren't in it on the old maps. That scenario will certainly cost people and the building industry -- and possibly cost the lawmakers at the polls in November. Mount figures new development will get the lion's share because that's where the money is.

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