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Letter to Open Space District Citizens Advisory Committee (CAC)

CARRQ's picture
on Thu, 02/23/2012 - 00:00
CAC Committee Member
Donna Norton
CAC Member _____________,
I appreciate the position taken by CAC members in declining to pass judgement on a mitigation proposal prior to formulation and adoption of District policy on mitigation.  Approval of a mitigation proposal without any basis for judgement means there is no set standard to meet.  Criteria used to characterize this "good" proposal may have little relevance to standards ultimately adopted.  Approval of the proposal would have affirmed the underlying premise of project mitigation on Open Space land.  Thank you for reserving that judgment.
The proposal presented to the CAC at the January 26th meeting represents an appealing model.  Mitigation required is in conjunction with a public project.  Public project mitigation would take place on public District fee land.  The type of compensation proposed involves riparian and planting restoration on Open Space land to mitigate for resulting damage caused by road-widening construction.  The District would basically use this arrangement to accommodate its maintenance responsibilities on land it owns.  (There are no apparent complexities involved in the arrangement.  No alteration in prioritization of values named in the Agreement--which, if altered, can be detrimental to dominant values and defeat the stated purpose of the acquisition.  No additional restrictions or contradicting conditions imposed on, or superseding, the intent of the original Agreement--which prevails in perpetuity.)  The existing Agreement is not, in itself, changed by the proposal.  It was also asserted that voter approval of Ballot Measure M indicates voter approval of implicating the Open Space District in mitigating project costs.  It was reasoned that they are, after all, the same set of voters.   
It seems fair to rely on a general assumption that if something is characterized as good because it possesses certain qualities, something is considered bad if it possesses the opposite qualities.  The two recent attempts (one ultimately being successful) to use Open Space land for project mitigation related to the Roblar Quarry project present an almost exact opposite of the "good" model.  While apparently recognizing the difference, the District's handling reflects acceptance of all the bad characteristics when it came to the Roblar Quarry project..  It was a private development project.  The District had previously purchased development rights from the developer seeking project mitigation (double dipping).  Both mitigation proposals required substantial modifications and alterations to an existing Agreement, including additional restrictions impinging on its dominant value.  Conditions of the existing Agreement became subordinate to a more restrictive State endangered species agreement, impacting additional parties since the Agreement covered more than one parcel. The existing Agreement was substantively altered by the mitigation proposal.
A relatively simple solution would be to adopt a mitigation policy for the District modeled after the good, while rejecting the elements of the bad.  But reliance on that principle seems questionable. Projects are never identical.  Mitigation for a small strip of land along the side of a road can became acres of land in another situation.  When does compensative restoration planting become something much more significant?  
By design, the District has a narrow focus to serve a special purpose.   We're concerned a policy allowing mitigation, even based on a good-project model, establishes a connection never intended by the voters that could easily devolve into the District becoming a County project mitigation center, losing its focus and draining its resources.  Transforming mitigation requests into proposals for final approval requires investment of limited District funds.  (The District could not afford to purchase a simple device to record CAC meetings.)  It's already evident mitigation requests will be numerous.  Though it's unclear who'll pay for the costs of processing, it is clear District staff time will be diverted from other projects more central to its purpose.  
Assurance was given by staff that a line can be drawn separating public from private.  As the idea of what constitutes "public-private partnerships" may be subject to varying interpretations, maintaining a clear distinction is questionable.  For the District, an element of County (public) benefit in an otherwise private development project could automatically trigger mitigation requests--along with claims of discrimination by those refused a mitigation benefit while it's granted to others.  The parameters would likely broaden over time as project mitigation through the District becomes common practice.  Partnerships with the District have been established, but the partners have shared a common purpose, and it's not been to provide mitigation.  These established partnerships with conservation organizations and land trusts may be jeopardized when "in perpetuity" Agreements can be altered to serve a mitigation purpose.  Especially when the District has demonstrated its willingness to creatively redefine perpetuity as allowing a 20-year interruption to accommodate mitigation. 
Promoting approval of this mitigation proposal by asserting that voter approval of bond Measure M somehow establishes voter approval of District resource-sharing with that project is simply not valid.  And, making that argument is not reassuring in terms of how the District is going to move forward in its handling of mitigation.  
There may be some good shared project proposals out there involving mitigation that provide some degree of benefit to the District.  But, this District was created and continues to be funded by the good people of this County to serve a very special, dedicated purpose.  It's not clear the District has proven its ability to assert its independence when pressured by County project demands.  There's just too many ways to work bad stuff through when the pressure's great enough.  In the case of the Roblar Quarry mitigation, what couldn't meet the 5-vote requirement for approval as an Amendment, was approved through "interpretation," requiring only 3 votes.  Excluding mitigation may mean the District passes up a few beneficial opportunities, but there's a lot to consider in terms of potential detrimental consequences if it goes down that path. 
We appreciate the obvious dedication you have to the District and its mission, and hope you will take our concerns into consideration when formulating your advisory recommendations on District policy.  
Thank you.
Donna Norton