Opposition letter to Merced Board of Supervisors re: Proposed Minor Subdivision Application/Parcel Map Waiver No. MS07-058 (Chri
Badlands is declaring the coming days a Sunshine Week to post a number of documents submitted to Merced County government in the last few months. Some of these documents have been included in the official packets of information for Board of Supervisors and Planning Commission meetings. Others have been suppressed.
This material is best understood by reference to the audio or video archives of supervisors’ and planning commission meetings and we encourage readers seriously interested in understanding their local government to go to the Merced County webpage, http://www.co.merced.ca.us/CountyWeb/, to seek out these hearings, particularly the two board of supervisors meetings on July 1 and July 8.
----- Original Message -----
From: "SJRRC"
To: "James Fincher" ; ;
Cc: "SJRRC" ;
Sent: Tuesday, July 01, 2008 9:01 AM
Subject: Fw: Comment letter Robinson parcel split
> ----- Original Message -----
> From: "Marsha Burch"
> To: ; ;
> ; ;
> Cc: "Don Mooney"
> Sent: Tuesday, July 01, 2008 8:19 AM
> Subject: Comment letter Robinson parcel split
MARSHA A. BURCH
ATTORNEY AT LAW
131 South Auburn Street
GRASS VALLEY, CA 95945...
July 1, 2008 Via Email
Merced County Board of Supervisors
County of Merced
2222 M Street
Merced, CA 95340
Re: Proposed Minor Subdivision Application/Parcel Map Waiver No. MS07-
058 (Chris Robinson), Merced County, California
Dear members of the Board of Supervisors:
This office, in conjunction with the Law Office of Donald B. Mooney, represents the San Joaquin Raptor Rescue Center and Protect Our Water, groups with an interest in the above-referenced proposed minor subdivision (“Proposal”). On June 10, 2008, we submitted comments on the Proposal. These comments are submitted in conjunction with our comments of June 10, 2008 and additional information submitted to the Board on June 6 and June 10, 2008.1
A. Availability of Board packets/documents
These comments respond to the staff report on appeal for the July 1, 2008
meeting, prepared by Mr. Dave Gilbert, Senior Planner (“Staff Report”). These
comments are made without the benefit of reviewing the Board’s packet of
materials regarding this appeal because our clients were told at 12:30 p.m. on
June 30, 2008, that the Board packets were not ready for review and that staff
would call when the materials were ready. The call arrived at 4:19 p.m. While
our clients received some of the meeting materials for the appeal on CD at
approximately 12:30 p.m. on Monday, the remaining materials were not available
until the end of the day. I have not been able to receive or review the CDs made
available on Monday, nor have I seen the Board packets made available just
before the close of business. For this reason we request that the item be
continued to allow us to review the materials and provide comments.
It bears mentioning that the Board may feel frustration in receiving comments the day before a meeting on a particular issue, but there is no basis for complaint when the materials necessary for the public to intelligently prepare comments regarding a proposal or project are not available to them until late in the day the afternoon before the meeting. The public right of participation is at the core of our governmental processes, including the local process. To disregard public comment as untimely when the information has not been adequately provided to inform them would be contrary to the right of public participation.
Additionally, the agenda for the July 1, 2008 meeting fails to meet Government Code requirements with respect to Item 19. (Govt. Code § 54954.2(a).) Item 19 does not include the name of the project, and interested parties may not participate in the hearing tomorrow as a result of the vague description of the item.
The failure to provide the Board packet for public review on this issue is also a violation of the Brown Act. Government Code section 54957.5(a) provides that any writings distributed to a majority of the members of the legislative body (the Board packet) shall be made available upon request and without delay.
Subsection (b) provides that if the packet is distributed less than 72 hours prior to
the meeting, it shall be made available for public inspection at the time it is
distributed to all, or a majority of all, the members of the body. The Board
packets were not available this afternoon in the Board’s office, and so must not have been distributed to all, or a majority of all, of the Supervisors by that time.
The agenda contains 32 consent items and 22 public hearings. Some of these
hearings relate to controversial issues, including fees that will have a significant
impact on some members of the community. The fact that the Board did not
have its packet until sometime the evening before this meeting is contrary to due
process.
Finally, the Board packet that was finally provided to our clients included many changes from the preliminary documents that were provided to them on Friday, June 27, 2008. Of greatest concern is the fact that the Board packet includes only some of the documents and exhibits submitted by our clients with respect to Item 19. The information submitted was reviewed by staff and some of it was withheld from the public and the decision makers. This thwarts the informational purpose of CEQA and is an additional reason why the item should be continued.
B. Response to July 1, 2008 Staff Report on Appeal
1. Conservation easements
Our previous comments stated that the terms of the relevant conservation easements must be revealed to the public and the decision makers. In response,
Staff has indicated that the easements are available at the County Recorder’s
office. Thus, the decision makers still have not been provided with copies of the
relevant documents.
Staff goes on to provide an extraordinarily brief description of the terms of the easement and concludes, without any support, that splitting the easement area from the other portions of the property would “serve the purpose” of preserving wildlife. (Staff Report, p. 3.) Because the terms of the easements have not been revealed it is unclear whether the purpose will be served. In fact, it may have been the intent of the California Department of Fish and Game and/or the Wildlife Conservation Board to have an easement within a larger property so that the easement would temper development on the entire parcel. Any conclusions in this regard would be speculative without obtaining the obviously necessary information.
We request that the conservation easement and related agreements be made available to the public and the decision makers. We also note that the Staff Report indicates that County staff has reviewed these documents despite the fact that they are not included in the Board’s packet. Thus, the documents are part of the administrative record of proceedings for this item, and consistency with the conservation easement will be subject to judicial review in the event this Proposal is approved and that approval is challenged in court.
The Staff concludes that the lot split supports the UC conservation strategy because the applicant has invited school classes and environmental groups to the easement area. This makes no sense. The fact that the applicant has allowed students to enter on the property does not necessarily support the idea that the easement area should be split from the remainder of the parcel. The two things are unrelated.
3. Exemptions under Section 15061(b)(3)
Staff asserts that our previous comments did not present enough evidence that the Proposal will result in a physical change to the environment. This response ignores the fact that the development that will be allowed on the property as a result of the Proposal is what must be analyzed, and not what the applicant may think is likely at this moment. Environmental review of the development allowed by a project must take place regardless of whether that development will actually materialize. (See Bozung v. Local Agency Formation Commission (1975) 13 Cal.3d 263, 279 and 282; Christward Ministry v. Superior Court (1986) 83 Cal.App.3d 180, 194-195.)
The Staff Report notes that as many as four homes could be constructed on each of the subdivided parcels, and five or more with a CUP. This is much more likely if the conservation easement has been severed from the parcels. There is nothing to prevent the applicant from selling the parcels after the approval, even if that is not his present intent. The allowed development must be analyzed. Period.
The Staff Report contends that the mere “redrawing” of parcel lines will not result in conversion of agricultural lands. This contention is without merit. The division of the agricultural portions of the property from the conservation easement will ease the process of gaining approval for changes on the agricultural portions of the property, including construction of homes.
Unfortunately, because the Staff decided not to provide the conservation easement agreement to you and to the public, we do not know whether the easement agreement contains restrictions or conditions on development on portions of the parcel outside of the easement area. Isolating the easement area will remove an obstacle to development, and this issue can only be clarified by a careful review of the easement agreement.
In summary, a reasonable argument has been made that suggests the Proposal might have a significant impact, and so the County must refute that argument to a certainty to rely on the exemption. (Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 118.) There is no certainty regarding future use of the Property. The applicant’s circumstances could change overnight and the property could be sold to others or developed by the applicant. The isolation of the easement area may thwart the conservation goals of the conservation agreement and/or easement documents, and the County has not refuted that to a
certainty because we do not even have the relevant documents.
4. Conflict with the General Plan
Staff rejects the notion that the parcelization is contrary to the General Plan, concluding that there is “zero evidence” of any potential for construction of any residence on the property. (Staff Report, p. 6.) The analysis regarding whether a project is consistent with the General Plan does not rely upon a determination of the applicant’s present intention, it requires review of what will be allowed if the Proposal is approved. In this case, the parcel split will allow future construction of up to 15 homes, and more with a CUP. The split will also allow for the alienation of the property without the burden of a conservation easement (or a portion of a conservation easement). A property that is not burdened by an easement, particularly a conservation easement, will have less in the way of legal encumbrances.
The fact is, if the applicant changes his mind, the parcelization will allow for construction of multiple homes on the property, and the conservation easement will have been isolated, removing an obstacle to such construction. When evidence is presented to a lead agency showing possibility of adverse impact, the agency cannot rely on the absence of supporting data, because the agency cannot say with certainty that there is no possibility of significant effect on the environment. (Dunn-Edwards Corp. v. Bay Area Air Quality Mgmt. Dist. (1992) 9 Cal.App.4th 644, emphasis added.)
Staff confuses the analysis. The burden is not on the appellant to appear with evidence that the applicant’s intentions are other than what he states. In fact, the applicant’s statement of intent at the moment is not in question. The issue is the fact that he is free to change his mind at any time and there is nothing to prevent that from happening.
5. Potential for conversion of agricultural lands
With respect to conversion of agricultural lands, the Staff Report again misstates the burden and asserts that the pubic has not provided enough evidence that there may be a conversion of agricultural lands. (Staff Report, p. 13.) As mentioned above, it is up to the County to refute the argument to a certainty. There can be no certainty, because the applicant could change his mind any time after the Proposal is approved and sell the lots and/or seek to develop them for residential use.
The potential for agricultural conversion is not an “alarmist contention.” (Staff Report, p. 13.) The Staff Report notes that a number of residences may be constructed on each parcel, and further notes that the Proposal will create an additional parcel. This would allow for the construction of up to 4 homes, and 5
or more with a CUP. The intention of the applicant at the moment indicates that this may not happen right away, but it could happen if the Proposal is approved.
This, coupled with the fact that the applicant is free to change his mind at any time, supports only one conclusion; that the County cannot conclude to a certainty that agricultural lands will not be converted to other uses as a result of the Proposal.
6. Potential impacts to listed species
The Staff Report argues that the Proposal will not result in impacts to species because the parcels created will be too large for “ranchette” development.
It is unclear why Staff believes that construction of homes is only likely on the typical ranchette-sized parcel, but the belief is incorrect. There is no reason the three parcels outside of the conservation easement could not be sold to individuals and that each of them could construct a residence (or more) on the parcel. As set forth in detail above, isolating the conservation easement would facilitate the sale of the remaining parcels as they would no longer be burdened with any portion of the easement.
Despite the fact that the Staff Report indicates that the USFWS was convinced that the Proposal would result only in the “adjustment of parcel lines” and nothing more, the USFWS previously, and accurately, commented that the property is inhabited by myriad listed species. The Proposal is not for a mere adjustment of lines as it will create an additional parcel and free the remaining three parcels from the burden of the conservation easement. There simply is no reasonable basis to excuse the County from CEQA’s requirements – and the certainty required for such a determination simply cannot be found.
7. Segmenting of the Project
The Staff Report response to our previous comments that the Proposal is the first step in a comprehensive development approach for the property is to say that the subdivision application does not refer to a multiple phased project. (Staff Report, p. 8.) County staff knows that the applicant is pursuing approval of a mining operation on the property. The applicant has two applications pending for one property, there is no credible way to ignore that fact for the purpose of reviewing the impacts of the two proposals separately. It violates CEQA and the property development scheme should be evaluated in one CEQA document.
As discussed in our previous comments, courts give “project” a broad interpretation in order to maximize protection of the environment. (Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165,1189.) Intentionally ignoring the other development proposals for the property by stating that the application for the subdivision does not mention those other plans is illogical, and not consistent with the mandates of CEQA.
C. Conclusion
We request a continuance of this item so that we will have the opportunity to review the Board packet, which we have not been able to review as of the writing of this letter because our clients were unable to get a copy of the packet until just before 5:00 p.m. on June 30, 2008. In the event the item is not continued, we respectfully request that the Board of Supervisors reverse the decision of the Planning Commission that the Proposal is exempt from CEQA, and deny the Proposal.
Very truly yours,
Marsha A. Burch
Attorney
cc: San Joaquin Raptor Rescue Center
Protect Our Water
Donald B. Mooney, Esq.
(1) Please see List of Exhibits attached to our comment letter of June 10, 2008.
Coalition Statement
DFG Action Plan
Ecofull UC Vollmar
Fish and Game Land-use Change 2
Fish and Game Land-use Change 1
Paving Paradise
Rangeland Resolution
Silviera Report
SJKF Recovery Area
SJKF Documents
TNC VP Target
USFWS Recovery Plan 2
USFWS Recovery Plan 1
USFWS Upland Recovery
Vernal Pools and Related Wetlands
Wildlands Map
Williamson Map