Tuesday, June 13, 2006
CCF asks Coastal Commission 25 questions
In an open letter to the local Coastal Commission program manager Chris Kern, Coastside Community First President Charlie Gardner has responded to Kern’s earlier letter to the city of Half Moon Bay with (by my count) 25 questions.
Kern’s letter said it is not possible to mitigate the taking of wetlands to build a road. Five of the questions in the letter are about whether it is indeed possible to mitigate the taking of wetlands to build a road. The remainder focus on a new issue: the Pacific Ridge settlement, which resulted in Coastal Commission approval of a traffic light on Highway 1 at Terrace Avenue.
Gardner has asked Coastsider to publish CCF’s letter as an open letter to the Commission. We’re running his letter on the second page of this story, as we did with Kern’s letter.
June 11, 2006
Chris Kern
Coastal Program Manager
North Central Coast District - California Coastal Commission
45 Fremont Street, Suite 2000
San Francisco, CA 94105-2219
Dear Mr. Kern:
Thank you for your same-day response to HMB City Manager Deborah Auker concerning Foothill/wetlands issues. Coastsiders have been asking a number of questions about these and related issues, which you’ve certainly demonstrated an alacrity in answering. Coastside Community First respectfully requests your response to the following Foothill-related questions:
1. Your June 6th letter to Ms. Auker states that wetlands can be mitigated for eight reasons, which do not include roadbuilding. How then did Caltrans receive Commission approval to go through wetlands at Shamrock Ranch, and mitigate them with wetlands restoration a few miles away, at Montara? Is that proscribed by the Coastal Act and Bolsa Chica decision, as your letter would indicate?
2. Your quote in the May 3rd HMB Review mentions a ‘conflict resolution’ process whereby wetlands mitigations for roadbuilding can occur. Why is this process not mentioned as a possibility in your letter?
3. Is it the Commission’s opinion that it is not possible to build a roadway bypass linking Highways 92 and 1 that avoids wetlands? If that is the case, is there some reason that HMB could not receive Commission approval through ‘conflict resolution,’ as Caltrans did, to mitigate any unavoidable wetlands intrusion?
4. A number of questions have been raised concerning the Pacific Ridge settlement agreement, to which the Commission is signatory. As you know, the agreement requires your staff, regardless of any EIR findings and in contradiction to your staff’s prior recommendation, to recommend in favor of a permanent stoplight at Terrace. Is it customary for the Commission to require of its staff a particular recommendation on an application? Are there circumstances under which you consider it appropriate to require staff to make a recommendation contrary to their actual opinions? In the past, has your staff recommended for or against applications before the Commission according to its prior instructions? If so, which applications had predetermined staff recommendations? Were the applicants and the public made aware of such arrangements? If no applications have had staff recommendations dictated by the Commission, does that mean that the requirement in the Pacific Ridge settlement agreement is unprecedented?
5. Are you required to publicly support the settlement agreement? If so, is your June 6th letter colored by that requirement? If you disagree with elements of the agreement, in particular its restrictions on your or your staff’s freedom to recommend on applications, are you free to state so in response to this CCF query?
6. Would you permit your staff to create a recommendation against a stoplight at Terrace, if that was their considered professional opinion? If you did, would the Commission publish that recommendation, or would it be publicly suppressed as contrary to the terms of the settlement agreement? Would you or your staff be subject to disciplinary action from the Commission if you or your staff recommended against the Terrace stoplight?
7. If you or your staff recommended against a Terrace stoplight, and that recommendation was publicly suppressed by the Commission as contrary to the agreement, would you consider releasing it to the public anyway? Do you believe that you or your staff would then be subject to civil actions from the parties to the agreement for doing so? Is there a whistleblower status that might protect you or your staff in that event?
8. The Commission of course does not need to follow your staff’s recommendation when considering an application. Since it is not necessary to have your staff’s positive recommendation to approve a stoplight at Terrace, why in your opinion does the agreement contain an unnecessary requirement that restricts your staff’s expression of professional opinion? Do you agree that it appears to be an attempt to suppress predictable staff criticism of a Terrace stoplight? Are you aware of any other explanation for such an extraordinary restriction?
9. The Commission voted unanimously in favor of the settlement agreement, despite controversial elements as described above. Are the minutes, transcripts or the like of the Commission’s deliberations, as well as your staff’s contribution to that process, available to the public? If so, could you provide links to those documents for public perusal in your response to this query?
Coastside Community First, and the Coastside public in general, very much appreciate your willingness to answer questions on these and other subjects. CCF requests that you publish your response to the above questions on coastsider.com, so that the answers can be widely studied and commented upon.
Thank you in advance for your timely reply.
COASTSIDE COMMUNITY FIRST
Charles M. Gardner
President
Comments
Interesting letter from CCF, almost lawyerly in its dissembling tactic of questions. I’ll skip the concerns raised under 1 through 3 about the conditions under which wetlands may be violated, being confident Mr. Kern will address these authoritatively. My comments regard the remaining batch of questions under numbers 4 through 9.
Like most people, my eyes tend to glaze over when viewing legal documents, so I may be missing something, but all of the concerns posed by the questions appear bogus rather than nettlesome.
The Ailanto Settlement agreement is not legally connected with Foothill as anyone can see by looking at it on CCF’s site; Foothill is not mentioned. Because questions pertaining to the Ailanto agreement comprise 70% of Gardner’s response to Kern’s letter about wetlands, this is an obvious attempt to shift the ground and put Kern on the defensive.
Much has been made of the language of the agreement that says staff will approve permits, and that that makes the whole process a done deal, even if staff or anyone else objects. Sorry, but that is not the language of this agreement or how it works in real life. One thing ought to be born in mind in even considering this negotiation, and that is that its purpose was to get to an agreement so that the applicant could exercise its rights. Of course the resulting agreement has to assume that the parties to it will proceed in good faith to make it work. That explains why the staff, which operates at the direction of the council, has to do its bidding. The body does what the head tells it to, no surprise there.
Contrary to claims by CCF and others, there are clear contingencies in the Settlement agreement. Unless the applicant assembles all of the required information on all of the forms, the staff does not have to recommend approval. Secondly, in paragraph 7a, after saying the staff will approve the permit etc., it continues, “If the city denies etc.” That means the city can deny the CDP. Why would it do so? For one thing, the planning commission is not bound by the agreement, and could conceivably vote to deny the permit. The council then has to review that decision and might uphold the planning commission’s recommendation, provided it remains in the boundaries of the agreement.
Yet another contingency is the approval of the signal by Cal Trans. If it does not approve the signalized intersection, Ailanto is free to relitigate.
That leaves enough contingencies to conjure a reminder of that old saw, “There is many a slip between the cup and the lip.”
ken king
Chris Kern, whose May 3rd and June 6th public statements contradict each other, owes everyone an explanation. He entered this discussion of his own accord.
Or did he? Why would Mr. Kern and the Coastal Commission, who once required Foothill, now so eagerly attempt to hammer nails in its coffin?
All of the most dedicated opponents of Foothill – the Commission, the developer, some past and present HMB officials – have one thing in common: a vested interest in fulfilling the Pacific Ridge settlement agreement. That is what drives their vehemence against Foothill.
Because if Foothill is admitted to be physically possible, or (even worse) potentially desirable, for that reason alone the settlement agreement should be scuttled, because fulfilling the agreement’s terms would permanently eliminate the possibility of Foothill. So if you have a vested interest in that agreement, you have to convince the rest of us that Foothill is dead, or the end of western civilization. Otherwise, why conclude an agreement that will kill the possibility of a road HMB might want, and need, in its future?
So let’s keep this debate as simple as possible. If you support the settlement agreement, you’re against Foothill. And if you think Foothill is a good idea whose possibility should be preserved, you’re against the agreement. I ask every participant in this debate to declare, if they’ve made up their mind, whether the terms of the settlement agreement should be fulfilled. Let’s vote.
To refresh people’s memories, the details of the agreement are discussed in prior coastsider.com articles, including my “Terrace Stoplight” and “Fear of Foothill” pieces. Briefly, in order for the agreement to be fulfilled, the City, Coastal Commission and Caltrans would have to approve a Terrace stoplight and adjacent Highway 1 widening as traffic mitigation for 63 supersize houses at Pacific Ridge.
I vote against completing the agreement, for all the reasons I’ve given here over the last six weeks. And if the agreement gets pushed through, as some past and present HMB officials, the Coastal Commission and developer so keenly desire, don’t blame Coastside Community First. They’ve shown the courage to question an unprincipled contract that left our community’s best long-term interests on the cutting room floor.
Mr. Steinberg, the Attorney for the Coastal Commission is the California Attorney General's office. That's who participates in such negotiations and who drafts such Agreements for the Coastal Commission
.
As to your fixation with what you label as a “gag rule” let’s discuss some elementary political science as to the role of City staff in such matters. The City Manager form of government under California law requires that the City Council makes policy decisions during agendized open sessions and closed sessions and gives direction to just two subordinates; the City Manager and the City Attorney. The Senior Management staff report to the City Manager or, looked at in another light, to the Council through the City Manager. That’s the hierarchy of the California system.
When City Councils negotiate lawsuit settlements they don’t do it on their own. The City Attorney, of course, is the primary staffer
due to legal expertise, but the City Manager - together with appropriate Senior Staff - provides substantial context, advice, and
execution. As a practical matter, although not mandatory, this process tends to be collegial in nature and I’d think it would be a rare
settlement that would go forward with significant dissent from Staff.
There’s always the possibility, of course, that a new City Attorney, City Manager, or Senior Staffmember might come upon the
scene, or that an existing one could have a change of heart or mind. In such a case, one appropriate step could be to request a rehearing of the matter with the Council (probably in closed session) and to present such newfound conflict for resolution by the Council. Policy matters, after all, are the Council’s call.
In the event that the Council’s call would create some professional, political, or even personal barrier for that staffer then I would think that most Councils would be OK with the idea of a recusal, a stand-to-the-side so to speak. Councils are usually sensitive to that sort of thing.
What probably would not fly - either in government or private industry - is the notion that a staffer would publicly oppose a
settlement agreement in direct opposition to a Council. That would be insubordinate in every sense of the word.
So, no, it doesn’t seem extraordinary to me that the Agreement contains a clause that requires staff to perform in an executive - as
opposed to discretionary - capacity. There is plenty of room in the Agreement for discretionary decisions by Planning Commissioners and/or Councilmembers, who still possess their discretionary authority.
Mike Ferreira
Kevin: My point about the settlement agreement is that if it is fulfilled, Foothill becomes forever impossible, due to the agreed site plan. Closing that door in perpetuity clearly runs counter to the public interest. The agreement has every appearance of an improvisation, in order to extricate the parties from legal proceedings whose outcomes all the parties had become increasingly apprehensive about. The key elements dealing with access and the lot retirement program are truly clumsy, and wouldn’t provide the best outcome for the public. The only way we can get to a proactive renegotiation that more squarely treats the public interest, is to scuttle the settlement agreement.
As for the number of houses, I cleave to the Coastal Commission’s 2001 finding, that Pacific Ridge needed its own access: that is, existing streets like Terrace won’t do. The ‘first 40 homes’ provision for Terrace access was clearly granted with the understanding and intention that permanent alternative access was to follow. My opinion is that if Pacific Ridge cannot provide its own access, which the developer now contends, then no subdivision should occur. That is consistent with the 2001 approval, and if the parties return to court, the Commission should argue accordingly.
Kathryn: Based on the traffic studies, the Coastal Commission concluded there was a significant difference in ‘stacking’ impacts between a light at Terrace and one at Bayview. If there were underpasses at both ends of Foothill/Bayview, no lights would be added. As it stands, if the settlement agreement is fulfilled, one light (at Terrace) would be added.
Ken: I’m having a problem with the accuracy of the statements you’re making. For example, you state that I’ve argued that the settlement agreement is “locked in.” As you know, I’ve been pointing out just the opposite, that the settlement agreement is contingent on City, Commission and Caltrans approvals for a Terrace stoplight. I’m unmistakably arguing that the public should militate against those approvals. If you mean to say that I believe the parties exhibit momentum toward granting Terrace stoplight approvals, undoubtedly. I’m hoping the public will stop that momentum, so sober decisions in the overall public interest can be made here.
Another example is your statement that “Throwing out the agreement gets us back to at least 126 houses.” Certainly you are aware that if the agreement falls apart, at most 40 homes would be allowed. Even those are in jeopardy, if the appellate court sets aside the 2001 approval, which is predicated on alternative access that the developer now contends is impossible.
Concerning wetlands, Mr. Kern responded to CCF on June 15th by correcting his June 6th assertions that wetlands could not be mitigated for the purpose of roadbuilding. Admitting that such mitigations are occurring for the tunnel construction, his position is now that similar mitigations for Foothill “appear unlikely.” He did not contend that Foothill/Bayview could not be routed around wetlands. He also declined to answer any questions about the settlement agreement, citing “attorney-client privileged communications regarding ongoing litigation.” CCF’s questions pertain to the settlement agreement, a public document affecting the public welfare, not privileged communications. They need to be addressed. The sooner and more thoroughly, the better. Finally, citing “Commission staff’s practice,” Mr. Kern declined CCF’s request to post his reply letter and relevant Commission documents on coastsider. com.
Ken King wrote: “The Settlement agreement could fail for a number of reasons—see my June 14 post above. It is not locked in as Mr. Bacon argued earlier.”
Of course I had to contradict the false assertion that I ever argued the settlement agreement was “locked in,” since on May 11th, in “Terrace Stoplight: Recipe for Traffic Disaster,” I wrote: “There’s a big catch to the settlement agreement. If the City and Commission don’t agree to a stoplight at Terrace, the agreement is nullified (p.12) and the parties resume litigating.”
Undeterred by the facts – that I’ve been pointing out for six weeks now that the settlement agreement is not “locked in” – Ken replied: “I accept Mr. Bacon’s ammendment that he does see it as possible to reverse.”
Ken offered another inaccuracy this weekend: “Nullifying the Settlement agreement puts the prior agreement into play with 126 approved houses. 40 are permitted with “temporary” access from Terrace, but the odds are good the builder would complete the infrastructure (i.e. more streets and lots with utility connections) for the 126 permitted houses.”
Ken: To build more than 40 homes, the developer would need to build either Foothill or Bayview. As you have educated us through the Parable of the Cowbirds, the Parable of the Cargo Cults, etc., Foothill is dead. So how is it “the odds are good the builder would complete the infrastructure” to build more than 40 homes?
Also, last Thursday morning you posted a brief comment on CCF’s letter to Mr. Kern that referred to “good ol’ Charlie Gardner.” Two hours later it was gone, and hasn’t reappeared. Since Barry approved the comment and posted it, it must have been you who decided to remove the comment. Why?
A related question for Barry: do you give people the privilege of removing or editing their prior posts at will? Shouldn’t posts (once published) have permanence, so that nothing is “disappeared,” and people think twice about hitting the “submit” button?
Why the “gag” rule is in direct conflict with the laws governing licensed engineers.
On June 22nd the San Jose chapter of ASCE (American Society of Civil Engineers) sponsored an update presentation by CalTrans On the Tunnel Project at the Distillery. Representatives of the local community, Sierra Club and civil engineers from the local and San Jose area attended.
At the meeting I had the opportunity to discuss with several engineers how they would react if they found themselves under a “gag” rule as presently stated in “The Out of Court Pacific Ridge/Ailanto Settlement Agreement”.
Their comments summarized: Disbelief that such a “gag” rule could be placed on an engineer in Public Service dealing with a life safety issue.
As soon as I receive the requested precedents upon which this “gag” rule is based from Adam Lindgren, HMB contracted city attorney I will (as fully disclosed to Adam)send it on to the State Licensing Board for their review and comments.
My objective is to obtain clarification to:
Rule 475. Code of Professional Conduct – Professional Engineering:
(Department of Consumer Affairs – State of California)
“To protect and safeguard the health, safety, welfare, and property of the public, every person who is licensed …, including licensees employed in any manner by a government entity or in private practice shall comply with this Code of Professional Conduct. A violation…constitutes unprofessional conduct and is grounds for disciplinary action’(i.e. you lose your license and when your job description requires the license you lose your job and may be open to civil lawsuits.)
(d) Confidential information obtained by a licensee, in his or her professional capacity, concerning a client, employer, or other related party shall not be disclosed by the licensee without the permission of the client, employer, or other related party EXCEPT for the following:
(5) Disclosures made upon discovering a hazard within the licensee’s field of professional expertise which may threaten the health, safety, and welfare of the public
(e)(1) A licensee shall not misrepresent the completeness of the professional documents he or she submits to a governmental agency.
(2) A licensee shall not misrepresent the completeness of the professional documents he or she prepared to his or her client or to other involved parties.
Maybe the writers of this settlement agreement should add a clause (and fund) for the support of engineers who lose their jobs over a basic ethics issue. Such a clause would complement the other illogical parts of this agreement.
Jerry Steinberg, CE
Half Moon Bay
Ken, per your recent post I know you will applaud my recent submission of the “ ethical conflict” which is contained in the Ailanto/Pacific Ridge Settlement” to the National ASCE (American Society of Civil Engineers) Ethics Board for their review and comments.
ASCE represents over 100,000 Civil Engineers.
In another action which should please your suggestion of greater review of the issue I have submitted the following correspondence to CalTrans to alert them of the conflict in their consideration of an encroachment permit for the traffic signal at Terrace Avenue and Highway 1. (see below)
NOTE this blogging software only allows 3000 characters so I have had to abreviate the letter.
Mr. Bijan Sartipi
District Director
State of California
Department of Transportation
June 25, 2006
Dear Mr. Sartipi,
Thank you for your letter dated June 20, 2006 acknowledging receipt of our recent correspondence.
In your letter you indicate, “We continue to await the city of Half Moon Bay’s submittal of appropriate technical analysis and documents before any decision can be made on the proposed encroachment permit.” This would be for the proposed signal light at Terrace Avenue and Highway 1.
This letter is to alert you to a conflict in your accepting any data or documents from the City of Half Moon Bay on this encroachment permit.
The City professional staff is bound by an “out of court settlement agreement” that includes a “gag” order which does NOT allow them to disagree with the proposed signal light.
This agreement was concocted by a sub-committee of a previous city council that found it expedient to agree with this condition in order to obtain their goals.
In an exchange of comments with the senior signer of this agreement it was painfully clear that there was a complete lack of familiarity/understanding of the code of professional conduct required of a licensed professional engineer.
i.e. Rule 475 Code of Professional Conduct – Professional Engineering
(Department of Consumer Affairs – State of California.
Jerry Steinberg, CE
=============================================
P.S. (1) I have not received a response yet from Adam Lindgren on the precedents for this “gag” order. Hope to receive before the coming holiday weekend.
P.S. (2) I did review your June 14th post and found it misses/avoids the issue of the ethical laws governing a licensed engineer working with a public agency involved with life safety issues. From your previous posts concerning the definition of a licensed Architect vs someone working in the architecture field I can only assume you are not clear as to the rules governing the licensing of folks involved in public safety.
Have a great 4th of July.
Jerry Steinberg
Half Moon Bay
On June 23, Mary Bordi mused about what are streets vs roads, etc. I don’t have an answer to that, but maybe we can use the California Vehicle Code definitions. “Road” is defined in VC 527: http://leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=04869711091+1+0+0&WAISaction=retrieve
(scroll down to Sec 527.) “Street” is defined in VC 590 (same URL, scroll further down.) One notable difference in the definitions is that a “street” is “publicly maintained and open to the use of the public.” Also, “Street includes highway.” [Since it’s a search result, I don’t know how long that URL is good for. If it stops working, go to http://leginfo.ca.gov/calaw.html check the “Vehicle code” box and enter “527” in the search box.]
Mary concluded with “What about the streets in El Granada, Moss Beach and Montara or are they roads?”
Many of them are just jokes, due to County neglect. In a city, the city repaves the streets out of general city revenue. San Mateo County expects the property owners with street frontage to pay for repaving, therefore streets in the Midcoast are essentially never repaved. Therefore, I would argue that in the unincorporated area, we have mostly roads and a few streets.
Ray Olson asked “Leonard, why do you call it a train wreck? And I don’t understand how growth rate and growth limit are not related? Anyways, you state that the claim of 1% growth rate protecting HMB from overbuilding is incorrect. But, you don’t supply evidence of this. Can you support that claim? Honestly, I’m not trying to be confrontational, I want to understand the point you are trying to make.”
Think of driving from HMB to Woodside. You can drive on Canada Road (1%) and get to Woodside in a certain amount of time. Or you can drive on I-280 (3%) and get there in less time. The distance (“buildout target”) doesn’t change just because you drove slower to get there.
It’s a train wreck because at “buildout” under existing land use plans for HMB and for the unincorporated Midcoast, there will be far too many houses and therefore people and therefore cars and water use and whatever than the local environment can handle. The 1% growth rate doesn’t protect HMB because the land use plan isn’t changed, and the buildout target of 8500 houses remains. So all that happens with the 1% is that you reach the limit of 8500 houses in 75 years instead of the ~25 years that the Midcoast will take to reach its buildout. The “Train Wreck” is that buildout of the current land use plans is just too many people here.
If only Mr. Gardner would show this type of energy and enthusiasm towards his elected position on the CUSD, we might see some in improvement int the educational challenges facing our children.
As the parent of two children in our school system, I am deeply disappointed and troubled by this apparent lack of focus on the part of Mr. Gardner. What about the kids?
What are you going to do, Mr. Gardner, now that Measure S did not pass, to help improve funding and reduce class size in our public schools here in the coastside?
Steve Skinner