ACTION MINUTES SAN MATEO LOCAL AGENCY FORMATION COMMISSION

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1 ACTION MINUTES SAN MATEO LOCAL AGENCY FORMATION COMMISSION A special meeting of the Local Agency Formation Commission was called to order at 2:32 p.m. by Chair Richardson in the Board of Supervisors' Chambers, Hall of Justice and Records, Redwood City, California. MEMBERS PRESENT: Commissioners Duane Bay (arrived at 3:10), Iris Gallagher, Rich Gordon, Jerry Hill, Howard Jones, Marguerite Kaufman and Chair Richardson MEMBERS ABSENT: None ALTERNATE MEMBERS PRESENT: None STAFF PRESENT: Martha Poyatos, Executive Officer Carol Woodward, Deputy County Counsel Brenda Bennett, Executive Secretary/Clerk Chair Richardson acknowledged Alternate Special District Member Robert Craig present in the audience. Public Comment for Items Not on the Agenda Frank Iwama, Hannig Law Firm Terry Gossett, Moss Beach, CA Zoe Kersteen-Tucker, Moss Beach, CA Nina Pellegrini, Montara, CA In response to comments that the notice for the protest hearing did not comply with Government Code Section 57026, Ms. Poyatos stated that notice included a map of the annexation area and the notice was designed to facilitate those wishing to protest to submit protest with out having to read the government code. She said that the notice provided the LAFCo address to view the LAFCo resolution approving the annexation, LAFCo contact information, a map showing the boundaries of the application and the time, date and place of the hearing. Ms. Poyatos said that in reviewing the notice and pertinent code sections with legal counsel, staff found that omissions noted by Mr. Gossett do not affect the ability of the reader to submit protest, contact LAFCo with questions or attend the LAFCo protest hearing. 1

2 Consideration of Requests for Reconsideration of LAFCo Resolution 960 Approving File Sphere of Influence Amendment of the Midpeninsula Regional Open Space District and Annexation of the San Mateo County Coastal Area. Requests for reconsideration submitted by Save Our Bay and Ron Sturgeon pursuant to Government Code Section Chair Richardson announced that the purpose of the hearing is to consider two requests for reconsideration in which San Mateo LAFCo is asked to either rescind Resolution 960 approving the MROSD Coastal Annexation, amend the resolution to approve annexation of only territory owned by MROSD, or amend the resolution to make it conditioned upon an election, regardless of the outcome of the protest process which will conclude on June 11. She stated that copies of the requests submitted by Save Our Bay and Ron Sturgeon as well as the staff report along with additional information submitted by Save Our Bay and MROSD are available in the back of the meeting room. Chair Richardson announced that speaker slips could be found in the back of the meeting room and asked those wishing to speak submit a speaker slip to the Clerk. She stated that the Commission would hear an oral report from staff, then from the requestors for reconsideration, the applicant and anyone wishing to speak. Ms. Poyatos summarized that the Commission approved LAFCo File after approximately nine hours of public hearing including two meetings held in Half Moon Bay, consideration of comments from 186 speakers, 250 comment letters and additional correspondence, the District s application, environmental impact report and fiscal analysis. She stated that since the notice of protest hearing had been published, the debate over the MROSD coastal annexation escalated to a campaign and signature drive by both opponents and supporters. She said that on May 4 and 6, LAFCo received two requests for reconsideration pursuant to Gov. Code Section and referenced the May 26, 2004 Executive Officer s report which details the process for reconsideration under Section of the Cortese Knox Hertzberg Reorganization Act of She said the report also contains the two requests as well as comments from the applicant, MROSD and additional information from requestor Save Our Bay. Ms. Poyatos summarized the reconsideration process, the May 26 report and the staff recommendation that the Commission deny the requests. Mr. Ron Sturgeon stated that the decision on reconsideration is not up to staff, but the Commission. He summarized the provisions of reconsideration and said that upon receipt of the requests the Executive Officer should not have taken any further action. Mr. Sturgeon stated that the Government Code does permit LAFCo to condition an annexation on an election and that staff did not 2

3 advise the Commission correctly. Bob Braitman summarized the reconsideration process and stated that he disagreed with the staff conclusion. He stated that there is no legal reason why the Commission could not rescind the decision approving the annexation. Mr. Braitman stated that the California State CEQA Guidelines define lead agency as the agency that has principal responsibility for carrying out the project and that the annexation is the project. He stated that the district has no jurisdiction to carry out or approve the annexation because LAFCo is conducting authority. Mr. Braitman stated that the Commission could not rely on the District s E.I.R. because the District is not the lead agency. He cited the state budget crisis and said that the prudent action would be to deny the annexation because circumstances have changed. Mr. Braitman said that the annexation threatens agriculture and that one of the Commission s purposes is to protect agriculture. He said that there has to be a protest hearing because there is not consent of all landowners and that the protest notice did not comply with Government Code Section Ann Liroff of Hannig Law Firm, representing Save our Bay, said her request was based on newly discovered information. She noted her attendance at a MROSD Budget Subcommittee meeting at which they discussed the dire consequences of the new budget had been presented to the committee. She said LAFCo, under current law, not MROSD should have been the lead agency under the rational of the Cucamonga case and that the Commission must reconsider and start the process all over again. Frank Iwama, General Counsel and Government Affairs Director of Save Our Bay, stated that the May 13 Governor s Budget is after April 7 and that the Commission must rescind Resolution due to the State fiscal crisis noting that the Governor s budget was cutting five million dollars from MROSD. He said that the District could come back with an application when the State budget improves. Public Speakers: Kyle Simpson, Greenbelt Alliance, Jan Snyder, Tom Cronin, Committee For Green Foothills Zoe Kersteen Tucker, Coastal Open Space Alliance, Marta Sehnal, La Honda Therese Maes, San Jose Barbara Sehnal, Citizen s for Responsible Open Space April Vargas, Coastal Open Space Alliance, John Lynch, Half Moon Bay John Meador, Half Moon Bay Chris Vogel, El Granada Armin Borick, La Honda 3

4 Michael Urgo, La Honda Cindy Urgo, La Honda Leonard Woren, El Granada Lennie Roberts, Portola Valley Terry Gossett, Moss Beach Gail Erickson, El Granada Geoff Allen, Pescadero Kelly Medina, San Gregorio Nina Pellegrini, Montara Misako Iwama, Half Moon Bay Terry Brown, Portola State Park Oscar Braun, Half Moon Bay Debbie Ettinger, La Honda Commissioner Hill moved to close the public hearing. Commissioner Jones seconded the motion, which passed unanimously on voice vote. Commissioner Kaufman said that she would like an explanation of the questions concerning the maps. She noted that she had received calls from people who were not sure if they were in the annexation area or not. Craig Britton, Midpeninsula Regional Open Space District, stated that the District can t tell anyone what to do with the their property and can not take land by eminent domain. He asked that the Commission decline to consider the request for reconsideration and noted that the District had submitted written comments. Mr. Britton stated there is no final State Budget yet but that the District developed a program that was flexible and based on revenues that would be available. He said budget cuts would not affect the program that has been developed and would not affect the agreements in place with County Fire, School District and others. Mr. Britton requested the Commission deny the requests. He stated that the question from Commission Kaufman regarding maps had to do with LAFCo and the maps that the District had provided. Ms. Poyatos stated that the map that was provided with the notice of hearing showed unincorporated communities in the annexation area and the boundaries of the annexation. Ms. Poyatos stated that in addition to a call from Commissioner Kaufman in which she asked if her property was in the annexation area, one property owner had asked LAFCo if their property was in the annexation area and she answered answer his question and made the proposal file available to him. Ms. Poyatos said the map provided with the notice provided the reader with the boundaries of the annexation area and it provided the LAFCo contact information. Commissioner Kaufman stated that she did refer callers to LAFCo. She said that what ever happens today, if there are people who have 4

5 issues with MROSD, they should go to the MROSD meetings and let the District know their concerns. In response to a question from Commissioner Gordon regarding environmental review, Ms. Poyatos stated that prior to the District beginning environmental review, District staff met with San Mateo and Santa Clara LAFCo staff to determine the project description. She said that in reviewing the various components of the project it was determined that it was a program in which annexation was a component of many other actions that the District was proposing. Ms. Woodward stated that there was litigation in Santa Clara Superior Court brought by Save Our Bay against the District and the Commission. She said that the Commission was dismissed from the litigation but noted that the litigation addressed the adequacy of the E.I.R. and the decision of the court was that the E.I.R. was adequate. Ms. Woodward stated that she did not have the case at this hearing and could not say if the lead agency issue was part of the litigation but the point is that it could have been. In response to a question from Commissioner Gordon regarding who has the responsibility to serve as lead agency, Ms. Poyatos stated that CEQA contains criteria on which agency would be lead on a project. She said that it is not categorically stated that the conducting authority in a LAFCo proceeding shall be the lead agency. Ms. Poyatos stated that the conducting authority takes action under thresholds that are set in the law. She said that if being the conducting authority required that LAFCo also be the lead agency under CEQA, every LAFCo in California would be the lead agency for virtually every application. Sue Schectman, legal counsel to MROSD, concurred with LAFCo staff and stated that in addition to taking action to apply to LAFCo for the annexation, the District took several other actions and would have been remiss in not complying with CEQA at that time. Mr. Braitman stated that a commission would not be lead agency on city annexations because the city has to prezone the property. He said the question here is what is the project and when you define what the project is, you determine who the lead agency is. Mr. Braitman said that the project before the Commission is the annexation and that the District may have other plans, but the E.I.R. says the project is the annexation and in that case according to CEQA, the public agency that has the responsibility for carrying out the project. He said the district has no authority to approve the annexation and the conducting authority responsibility that the Commission has is basically counting up the protest and determining if there is enough to stop it or enough to cause an election. 5

6 Ms. Liroff of Hannig Law Firm stated that she had with her the old statute and the new statute and that it shows clearly that LAFCo must be the lead agency. She handed documents to the Ms. Woodward. Ms. Poyatos noted that at this reconsideration hearing, the Commission was now hearing legal arguments about CEQA, who should be lead agency and what is the project. She stated that the E.I.R. that the District certified and that the Court reviewed looked at a program for the District to expand their boundaries into the coastal area. She stated the District changed their policies for agriculture and developed policies that did not exist previously and made many changes to the type of program the District provides. Ms. Poyatos stated that the E.I.R. looked at that program and said that LAFCo does not carry out that program, the District does. In response to a question from Commissioner Bay regarding the protest notice, Ms. Poyatos stated that the Commission had at their place a letter from Terry Gossett in which he states that the protest notice did not contain all the requirements of Government Code Section She said that the two omissions besides the a narrative statement of the exterior boundaries were that the notice failed to state whether the application came to LAFCo by resolution or petition, who submitted the application to LAFCo and that the notice failed to state the reason for annexation. Ms. Poyatos said that after reviewing these issues with legal counsel, the recommendation to the Commission is that those omissions did not inhibit the ability of the reader to know that this was an annexation of the coastal area to the Midpeninsula Regional Open Space District. She stated that it included the LAFCo contact information and location of where the resolution and conditions could be viewed. Ms. Woodward added that the important reason for the notice was to effectuate the purpose of LAFCo. She cited Government Code Section which provides that this division should be liberally construed to effectuate it s purposes and that no change of organization shall be invalidated because of a defect, error or irregularity which does not adversely and substantially effect the rights of any person, city, county, district, state or agency. She stated that the notice effectuates the purpose. Commissioner Hill moved that the Commission has considered the oral and written testimony that it has received and that the request for reconsideration be denied. Commissioner Jones seconded the motion, which passed unanimously on a roll call vote. 6

7 Adjournment There being no one else requesting to speak and no further business, the meeting was adjourned at 4:34 p.m. 7