Environment

Raptor and POW file two suits to protect Merced River

Submitted: Aug 11, 2008

Press release: For Immediate Use !! ******* Press release: For Immediate Use !!

Raptor and POW file two suits to protect Merced River

MERCED (Aug. 11, 2008) — San Joaquin Raptor Rescue Center and Protect Our Water (POW) filed two California Environmental Quality Act (CEQA) lawsuits in Merced County Superior Court this week.

Petitioners sued Merced County, the Merced County Board of Supervisors and Christopher Robinson, alleging four arbitrary and capricious actions of abuse of discretion in approving a series of parcel splits.

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Whipped

Submitted: Aug 02, 2008

K. L. Whipp & Co. Inc.

731 E. Yosemite Ave., Site B
PMB304
Merced, CA 95340

Phone: 209.723.6755
Fax: 209.723.0880
E-mail: info@klwhippandco.com
www.klwhippandco.com

Professional Services:

Grant Writing & Management
Strategic and Business Planning
Economic Impact Studies & Marketing

Executive Services For:

Event Planning
Board Meetings
Focus Workshops
Event Fundraisers

July 31, 2008

Lydia Miller, President
San Joaquin Raptor/Wildlife Rescue Center
P.O. Box 778
Merced CA 95341

RE: Request to remove our e-mail address(s) from you (sic) distribution lists

Dear Ms. Miller,

Over the past few months we have requested via email, that the SJRRC remove our email address(s) from your distribution list(s) that you use to inform your clients, associates, friend etc. (s) of various events. These events as general rule do not involve our company.

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Sunshine on MAGPI

Submitted: Jul 29, 2008

Although Badlands began its Sunshine Week (now stretching into Sunshine Month) with Merced County government issues, members of the editorial board have been attending Merced Area Groundwater Pool Interests (MAGPI) meetings since the inception of MAGPI several years ago. We have found these meetings extremely valuable for the amount of information about the Merced area water resources, but have continually been mystified by what, if any, public-process rules, regulations or laws MAGPI follows at any given point. Below, readers will find several months of correspondence concerning MAGPI’s latest product, a groundwater management plan update. In addition to letter subjects, we have bolded certain passages we found particularly interesting.

Nevertheless, although the topic doesn’t directly involve county government, to set the stage, we thought to provide readers with the county’s perspective on MAGPI.

Badlands Journal editorial board

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Conversation with a firefighter

Submitted: Jul 05, 2008

The California Department of Water Resources announced on June 27, after the largest fire in Northern California history had been raging for a week:

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"Ploys" and "tactics"

Submitted: Jul 01, 2008

Members of the public who make comments on projects before the Merced County Board of Supervisors are routinely chastised by supervisors for sending in their written comments late. This letter by attorney Marsh Burch explains the problem. Because the County could not produce a coherent packet of information for the July 1 board meeting, three items had to be continued.

To Supervisor Jerry O'Banion, who at the June 10 board meeting, accused the public of using late submissions (at the perfectly legal time of a public hearing) as a "ploy" and a "tactic," we suggest again that the ploy and tactic is the County government's, not the public's.

Since every ploy and tactic imply a strategy, citizens of Merced County must assume that the strategy of County government is the strategy of finance, insurance and real estate special interests which has produced our present national shame, our mortgage foreclosure rate. Nowhere is that clearer than when the public tries to obtain documentary background to special interest projects in Merced County.

However, today, July 1, 2008, the supervisors sullenly blinked.

Badlands Journal editorial board
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Public comment on the Felix Torres Project

Submitted: Jun 27, 2008

On behalf of San Joaquin Raptor Rescue Center and Protect Our Water, two local environmental groups, attorney Marsha A. Burch filed the following letter to the Merced Local Agency Formation Commission on June 26, regarding Planada Community Services District proposals to extend its sphere of influence to annex the new Felix Torres farm worker housing project.

In addition to Ms. Burch's letter, Maureen McCorry, on behalf of San Joaquin Et Al, submitted the following documents in addition to oral testimony:

1) Planning Commission Minutes 2.27.08
2) Planning Commission Minutes 3.26.08
3) 4.12.08 Articles
4) Planning Commission Minutes 4.09.08
5) Amendment to Real Party Exchange Felix Torres
6) Badlands Felix Torres, Raptor/POW
7) Felix Torres Background:
Felix Torres 3.26.08 Farm Bureau letter
Felix Torres 4.09.08
Felix Torres 11.29.07
Felix Torres 12.29.07
Felix Torres 12.13.07
Felix Torres USDA 12.13.07
Merced County 4.04.08
Planning Commission Transcript
Owens/Corser Comments
2.06.06 Agency Letter
8) Felix Torres CUP 2.27.08
9) Access to Working Files
10) Comment on proposed subdivision
11) MSR Planada
12) Graves letter
13) Felix Torres 3.26.08
14) Mary Stillhan 3.18.08
15) Planada CSD Final Petition
16) Lawsuit filed over the Planada Community Plan
17) Planada Settlement Agreement, SJRRC, POW, and the PCSD
18) PCSD ledger of Can and Will Serve Letters 1992-2008;

and Bryant Owens submitted these documents in addition to oral testimony:

“A” 2002 Preliminary Engineering Report for Planada WWTF Expansion
“B” Can and Will Serve Ledgers and related e-mail (13 pages)
“C” E-mail from PCSD to David Capron (1pg)
“D” Letter from Ken Mackie LAFCo (2pg)
“E” 11/7/03 Modification of Escrow, 21 acre Felix Torres Parcel (1pg)
“F” Community Plan Update Map Showing Felix Torres on Gerard Ave (1pg)
“F-1” Planada Community Plan Update 2003, Included by Reference
“G” PHRC Letter to Robert Lewis dated 8/3/06 (2pgs)
“H” Tom Nevis to Terry Allen re: Planada/Tatum Inquiry, Grand Jury Notes (2pgs)
“I” Villages of Geneva EIR Guidance Package (13pgs)
“J” Merced County Municipal Service Review, 2007, Planada (6pgs)
“J-1” Local Agency Formation Municipal Service Review Guidelines August 2003
(Govt. Publication included in its entirety)
“K” Settlement Agreement between Bryant Owens and PCSD dated 5/27/08 (5pgs)
“L” CA Regional Water Quality Control Board Administrative Liability Order (6pgs)
“M” 1993 Bear Creek Village CUP and amendments
“N” LAFCo Sphere of Influence Amendment 1055B.

The LAFCo board voted unanimously for continuance until Aug. 28 to consider new information.

All in all, it was not a good day for Merced County officials, who believe that the proper public-comment letter is a hand-written note by a pencil stub on toilet paper tacked to a fence post as far away as possible from 2222 M. St., Merced.

-- Badlands editorial staff
-----------------------------------------------------

MARSHA A. BURCH
ATTORNEY AT LAW
131 South Auburn Street
GRASS VALLEY, CA 95945
June 25, 2008
Via Email
Mr. Bill Nicholson, Executive Officer
Merced County Local Agency Formation Commission
2222 M Street
Merced, CA 95340

Re: Proposed Sphere of Influence Amendment No. 1055C to the Planada Community Services District and Planada Community Services District Annexation No. 2008-1, Planada, Merced County, California LAFCo File No. 0645

Dear Mr. Nicholson:

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 sphere of influence amendment and annexation (“Proposal”). We apologize for the late hour of these comments, but we were unable to obtain a copy of the Planada Municipal Services Review (“MSR”) until this afternoon. We submit the following comments on the Proposal.

By previous letters and comments to the Merced County Planning Commission our clients have raised concerns that the Merced County Housing Authority’s (“MCHA”) CEQA documentation related to the above-referenced Proposal is inadequate. The following comment provides additional detail regarding the flaws in reliance upon the Environmental Assessment/Initial Study prepared by the MCHA. This comment further describes the legal obligation of the LAFCo as a CEQA responsible agency to assume the role of lead agency and prepare subsequent environmental review before approving the Proposal.

I. Required Subsequent Environmental Review

A responsible agency may not grant a discretionary approval for a project for which a negative declaration has been prepared without first considering the environmental impacts outlined in the negative declaration. (CEQA Guidelines § 15096(f); cf. Endangered Habitats League, Inc. v. State Water Resources Control Board (1997) 63 Cal.App.4th 227.) A responsible agency must decide for itself how to respond to a project’s significant effects that will directly or indirectly result from the responsible agency’s own decision to approve an aspect of the project. (CEQA Guidelines § 15096(g)(1); and Pub. Res. Code § 21002.1(d).) The responsible agency must adopt any feasible mitigation measures that will substantially lessen such effects. (CEQA Guidelines § 15096(g)(2).)

When a responsible agency believes that a lead agency has improperly relied on a negative declaration it may elect from options set forth in CEQA Guidelines section 15096 as follows: (1) take the matter to court within the applicable limitations period; (2) prepare its own “subsequent EIR” if permissible under CEQA Guidelines section 15162; or (3) assume the role of lead agency if permissible under section 15052. (Guidelines § 15096; and see City of Redding v. Shasta County Local Agency Formation Comm. (1989) 209 Cal.App.3d 1169, 1179-1181.)

As discussed in detail below, the initial study and negative declaration for the project failed to analyze certain impacts, and new information regarding potentially significant impacts has come to light since the MCHA approved the project. Thus, if the MCHA refuses to supplement the inadequate environmental
review, the LAFCo should assume the role of lead agency and evaluate the impacts of the project prior to approval.

It bears noting that the MCHA adopted the negative declaration for the project two and a half years ago on November 15, 2005. There is substantial evidence showing that the Felix Torres Housing Center is significantly different today in its construction phase than the project that was reviewed and approved
by the MCHA. Further, there is substantial evidence showing that the Planada Community Services District’s (“CSD”) plans to expand the wastewater treatment capacity have changed considerably, and the planned expansion formed a large portion of the MSR prepared by the LAFCo in April of 2007.

There is new information showing that the project will likely have significant impacts that were not addressed by the MCHA. (See Supporting Document Packet submitted by San Joaquin Raptor Rescue Center and Protect Our Water.)

Under CEQA Guidelines section 15052, the LAFCo as a responsible agency, shall assume the role of the lead agency when any of the following conditions occur:

(1) The Lead Agency did not prepare any environmental documents for the project, and the statute of limitations has expired for a challenge to the action of the appropriate Lead Agency.

(2) The Lead Agency prepared environmental documents for the project, but the following conditions occur:

(A) A subsequent EIR is required pursuant to Section 15162;

(B) The Lead Agency has granted a final approval for the project;
and

(C) The statute of limitations for challenging the Lead Agency's action under CEQA has expired.

(3) The Lead Agency prepared inadequate environmental documents without consulting with the Responsible Agency as required by Sections 15072 or 15082, and the statute of limitations has expired for a challenge to the action of the appropriate Lead Agency.

Under Section 15052(1)(A), a subsequent environmental review is required because new information has come to light (see Supporting Document Packet) which was not known at the time the negative declaration was adopted by the MCHA, and the new information shows that significant effects to utilities and service systems will be more severe. (CEQA Guidelines § 15162(a)(3).) This requirement applies to a negative declaration, and as a responsible agency, LAFCo may not grant a discretionary approval for the project until the subsequent negative declaration or EIR is adopted. (CEQA Guidelines § 15162(b) and (c).)

Accordingly, if the MCHA is unwilling to prepare the supplemental environmental review necessary to bring the review into compliance with CEQA, the LAFCo must step into the role of the lead agency and prepare the necessary review before considering and approving the project. (CEQA Guidelines §
15052(a), subsections (1), (2) and (3).)

A. New Information and Changed Circumstances

The initial study/negative declaration is outdated with respect to its analysis of the CSD’s capacity for wastewater treatment and cumulative impacts. Since the MCHA approved the project, in March of 2008, the CSD settled a CEQA action in the Merced County Superior Court and agreed to limit treatment plant expansion to a maximum of 900,000 gallons per day (“GPD”).

The MSR adopted in April of 2007 assumed that the CSD would move forward with the expansion. The MSR also concludes that the community of Planada will likely grow to a population of 8,500 within the next seven years. (MSR, p. 74.)

None of these assumptions is correct at this point, and the erroneous information in the MSR should be identified and revised, or at least discussed.

Changes to the Felix Torres Project itself have also arisen. Project construction apparently began and deviated significantly from the configuration approved by the MHCA and so the Merced County Building Division halted construction. The MCHA applied for approval to deviate from the project as approved in the Conditional Use Permit and on April 9, 2008, the Planning Commission did not approve that application. It is our understanding that the Planning Commission’s decision has been appealed.

In summary, the LAFCo may not rely upon the negative declaration prepared for the Felix Torres Project because that project has evolved and transformed so significantly that additional environmental review is necessary.

The new information triggers the need for subsequent environmental review under Guidelines section 15162(a), and therefore triggers the responsible agency obligation to assume the role of lead agency and prepare the necessary review. (Guidelines § 15052.)

B. Impacts not Previously Addressed

The staff report concludes that the Proposal will not have a significant impact on agricultural lands. This conclusion violates CEQA, and also the Cortese-Knox-Hertzberg Act (discussed below). With respect to CEQA, the conclusion that conversion of agricultural land is not significant is simply false, as the extension of the sphere of influence and infrastructure into the proposed annexation areas will remove a boundary to development on surrounding agricultural areas.

The staff report indicates that the County has denied applications for residential developments outside of the SUDP boundaries, but the fact that the County has denied applications in the past provides no assurance that such applications will be denied in the future. Thus, approval of the Proposal may
result in conversion of agricultural lands.

The Legislature has determined that the preservation of the limited supply of agricultural land is necessary for the maintenance of California’s agricultural economy and the state’s economy. (Gov’t Code § 51220.) The Legislature found and declared that "the preservation of land in its natural, scenic, agricultural, historical, forested, or open-space condition is among the most important environmental assets of California." (Civ. Code § 815.)

The Proposal’s impacts to agriculture must be evaluated in a subsequent environmental review. Gaps in the initial study and negative declaration for the project may not be overlooked, and must be addressed before the Proposal may be considered for approval.

II. The Proposal Is Inconsistent with Cortese-Knox-Hertzberg Statutory
Requirements

As discussed above, the sphere amendment and annexation will result in the potential for conversion of additional agricultural land. The initial study for the Felix Torres Project does not adequately assess this potential and is insufficient under CEQA. It is also insufficient to approve the annexation under
Cortese-Knox-Hertzberg.

Section 56377 of Cortese-Knox-Hertzberg sets forth the following requirements for LAFCo approval of annexations that convert open space and agricultural lands:

56377. In reviewing and approving or disapproving proposals which could reasonably be expected to induce, facilitate, or lead to the conversion of existing open-space lands to uses other than open-space uses, the commission shall consider all of the following policies and priorities:

(a) Development or use of land for other than open-space uses shall be guided away from existing prime agricultural lands in open-space use toward areas containing nonprime agricultural lands, unless that action would not promote the planned, orderly, efficient development of an area.

(b) Development of existing vacant or nonprime agricultural lands for urban uses within the existing jurisdiction of a local agency or within the sphere of influence of a local agency should be encouraged before any proposal is approved which would allow for or lead to the development of existing open-space lands for non-open-space uses which are outside of the existing jurisdiction of the local agency or outside of the existing sphere of influence of the local agency.

This section requires the Commission to guide development away from prime agricultural lands. Subsection (b) requires that development of existing vacant land within a sphere be encouraged before annexation of open-space land outside of the existing sphere.

To comply with these mandatory requirements, most LAFCo’s require a vacant land inventory and absorption analysis. This information is essential to determine if there is adequate vacant land already within the urban boundaries for the proposed development or whether there is a need to convert additional open space or agricultural land.

There is no such analysis done for this project. There is absolutely no evidence in the record to indicate that there is insufficient vacant and developable land within the urban boundaries and sphere of influence of the CSD that would justify further conversion of agricultural land outside the boundaries. In the absence of such information, Merced LAFCo cannot make the findings necessary to justify such a conversion.

III. The Proposal Is Inconsistent with Cortese-Knox-Hertzberg Statutory Requirements

The staff report indicates that Cortese-Knox-Hertzberg requires review of various factors for all reorganization proposals, citing Government Code section 56668. (Staff Report, p. 4.) The report goes on to say that certain Merced LAFCo policies provide a more focused review for rural service districts, and so
provides an analysis under the policy rather than the Government Code.

The mandatory requirements of CKH may not be so lightly disregarded.

Section 56668(d), for example, requires that the anticipated effects of the Proposal must be reviewed for consistency with adopted LAFCo policies on providing orderly, efficient patterns of urban development, and the policies and priorities set forth in Section 65377. These are the very priorities that were ignored by the MCHA in approving the Felix Torres Housing project at its present location, and they may not be ignored by the LAFCo.

IV. Conclusion

We appreciate the opportunity to provide the above comments. We respectfully request that the Commissioners carefully evaluate the shortcomings of the underlying CEQA document, and its inadequacy to support a discretionary determination by the LAFCo at this time. We respectfully request
that the LAFCo deny the Proposal.

Very truly yours,

Marsha A. Burch
Attorney
cc: San Joaquin Raptor Rescue Center
Protect Our Water
Donald B. Mooney, Esq.

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Judgment Entered in Favor of Raptor, POW and Citizens Group in RMP suit

Submitted: Jun 20, 2008

MERCED, CA (June 20, 2008) --Superior Court Judge Elizabeth Humphreys signed this week the judgment for the lawsuit between San Joaquin Raptor Rescue Center, Protect Our Water, Citizens for the Protection of Merced County Resources (petitioners), against the County of Merced and real party of interest Riverside Motorsports Park (respondents).

Judge Humphreys ordered in favor of petitioners that the following approvals of the Merced County Board of Supervisors on the RMP project be voided and vacated:

Resolution No. 2006-219;
Ordinance No. 1800;
Zone Change No. 03-007;
General Plan Amendment No. 03-005
Removal of project site from the Williamson Act Agricultural Preserve;
Amendment to the Merced County General Plan to redesignate the project site from "Agricultural" to "Castle Specific Urban Development Plan Industrial";
Rezone of the project from "A-1" and "A-2" to "Planned Development";
Approval of the project master plan;
Text Amendment to Merced County General Plan to modify policies in the Circulation Chapter that would exempt the project from traffic Level of Service standards for feature and major events.

The Court also ordered the County of Merced to refrain from further approvals on this project until the County and RMP undertakes further environmental review "to correct the deficiencies in the EIR and as otherwise required under the California Environmental Quality Act."

"We have nothing but the highest praise for our legal team," said San Joaquin Raptor Rescue Center President Lydia Miller. "Gregory Maxim, Julie Garcia, Marsha Burch and their law firms, Sproul Trost LLP of Roseville and the Law Offices of Don B. Mooney in Davis."

"This judgment is a tremendous victory for the citizens of Merced County," said Gregory Maxim. "This lawsuit was brought for the purpose of ensuring that the citizens were provided with a full and fair opportunity to review and comment on all project impacts. This judgment, and the voiding of nine of the project's prior approvals, will provide the citizens with this opportunity."

"We are overjoyed at this positive outcome for the Raptor Center and Protect Our Water," Miller continued. "But we were particularly pleased with the strong support we received throughout the process of this lawsuit from the Citizens for the Protection of Merced County Resources, led by Suzy Hultgren, Paul van Warmerdam and Stacey Machado."

For further information contact:

Lydia Miller GREGORY L. MAXIM
San Joaquin Raptor Rescue Center Attorney at Law
Protect Our Water Sproul Trost LLP
(209) 723-9283, ph. (916) 783-6262 tel

Citizens for the Protection of Merced County Resources

Suzy Hultgren-(209) 358-2339 ph, (cell) 209-769-8583
Paul van Wamerdam- (209) 678-2251 ph,(cell) 209-678-2251
Stacey Machado-(209) 564-8361 ph,

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Butte Environmental Center sues federal resource agencies over approval of Shasta Co. project

Submitted: Jun 17, 2008

Press Release:

For Immediate Release June 12, 2008

Butte Environmental Council • 116 W. Second St., Suite 3 • Chico, CA 95928 • 530/891-6424

AGENCIES SUED TO PROTECT WETLANDS AND CRITICAL HABITAT

Chico, CA – On Wednesday, June 11, 2008, the Butte Environmental Council, an enduring advocate for vernal pool protection in California, sued the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service over their approvals of the Stillwater Business Park in Shasta County.

The complaint alleges that the Corps and the Service failed to uphold the Clean Water Act and the Endangered Species Act by issuing permits for the project that would destroy 65.7 % (234.5 acres) of the critical habitat for vernal pool branchiopods in the study area, 48.4 % (242.2 acres) of critical habitat for slender Orcutt grass, 7.55 acres of wetlands, and impact 678 acres of land necessary for the recovery of the species.

Vernal pools are seasonal wetlands that fill with water during fall and winter rains. These unique grasslands once dotted most of California's Central Valley and southern California coastal areas and are home to a unique array of plants and wildlife that can be found nowhere else on earth. Biologists estimate that more than 90 percent of vernal pools have been destroyed throughout their historic range (Wright 2002). The vernal pool tadpole shrimp and the vernal pool fairy shrimp were listed as endangered in 1994 due to habitat loss and fragmentation from urban expansion, agriculture, roads, and water projects.

After BEC litigation in 2000, the Fish and Wildlife Service designated critical habitat for these species and 11 plants, including slender Orcutt grass. “Critical habitat” for threatened and endangered species is considered to be habitat necessary for the recovery of the species, and, as such, is intended to have a higher degree of protection.

“It took BEC litigation to create the Vernal Pool Critical Habitat Rule and the Recovery Plan for Vernal Pool Ecosystems in California and Southern Oregon,” stated Barbara Vlamis, executive director of Butte Environmental Council, “So we are not going to stand by and watch the agencies ignore the priorities they established in their own documents and regulations.”

The Clean Water Act requires the Corps to seek the Least Environmental Damaging Practical Alternative, which was not done. The Endangered Species Act necessitates that the Service not jeopardize the existence of the endangered and threatened shrimp species or the threatened grass and that they must not adversely modify critical habitat for the species. The current permits are contrary to the best available
science, inconsistent with prior decisions, and are not supported by the facts before the agency.

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Public minutes on the Merced County Board of Supervisors public hearing on the Robinson minor subdivision application

Submitted: Jun 12, 2008

“Give me a break.” -- Merced County Supervisor Gerry O’Banion

Merced County Board of Supervisors

Board Agenda Item PM #2
June 10, 2008

Appeal of Planning Commission approval of Minor Subdivision Application/Parcel Map Waiver No. 07-058 – Chris Robinson

Project Description and Location: The applicant proposes to divide three parcels (194.52 acres, 516.80 acres, & 315.88 acres) totaling 1,027.20 acres into 3 parcels of: Parcel 1 = 198.63 acres, Parcel 2 = 343.18 acres, Parcel 3 = 165.63 acres and Remainder Parcel = 320.14 acres. The project is located on the east side of Highway 59, ½ mile north of Youd Road in the Snelling area. The project site is designated Agricultural land use in the General Plan and zoned A2 (Exclusive Agriculture).

Senior Planner Dave Gilbert explained to the supervisors that the issue was an appeal from the county Planning Commission approval of the project. The planning department presented this project as a “reorganization” of three parcels into three plus a remaining parcel. For some reason, it could not say “four parcels.” The boundaries of proposed Parcel 2 may be the area of a conservation easement on the Merced River, which occupies parts of the three existing parcels. The other new parcels surround this parcel. Because information about the easement was not made public, it is not clear whether the boundaries of the parcel are the boundaries of the easement. Robinson will later apply for a conditional use permit to mine a portion of one of the new parcels adjoining the conservation easement, nearly touching the river. But, Gilbert said, “The change in the parcel borders doesn’t affect the easement.”

The planner explained that the proposed parcels were a part of the Robinson family planning process and “was consistent with managing 6,000 acres over time.” Gilbert also dismissed the California Environmental Quality Act cumulative impact issue saying there had only been one subdivision within a mile of the project and only nine within five miles of it – neglecting hundreds of subdivisions of agricultural land in Merced County the planning department has difficulty counting.

In reply to a letter from the US Fish and Wildlife Service, planning staff asserted that Robinson, the applicant said there would be no ranchettes and that there was no relationship between the new parcels and the anticipated sand-mine project. Robinson’s mining contractors, Central Valley Cement, according to Gilbert, also claimed no relationship between the mining project and the new parcels.

Gilbert reported to the board that the planning commission approved the proposed new parcels and that there would be no changes in land-use, which would remain in agriculture (except for the mining, of course.)

The briefest history of this part of the Robinson Ranch shows that the conservation easement on the river resulted from the 1997 flood, which blew out Robinson’s mining operations on the river, damaged the downstream bridge on Highway 59. A number of resource agencies spent millions of dollars of public funds on the restoration project contained in the conservation easement along the river (proposed Parcel 2).

Maureen McCorry, representing et al and the Valley Land Alliance, spoke against the project. She began by asking the board if they had received and read the material she submitted. Board members nodded or replied that they had.

McCorry repeated the planner’s statement that it was “beautiful land.”

“Our requests are reasonable,” she said, because of “huge natural resource issues and values at stake.” Since the mining CUP is already in the pipeline for approval, the board should combine it with the parcelization and consider them together.

“This is a California habitat issue first, not local,” she said. It involves preservation of rangeland, potential agricultural –to- agricultural conversions damaging to rangeland, and interference with the easement. “Millions of public funds were spent to preserve,” she said. “There is no way this is exempt from CEQA,” she said, naming the long list of public resource agencies involved in the restoration project.

McCorry also mentioned that the planning department had not included in materials submitted to the board a map on rangeland she had submitted of the region prepared by The Nature Conservancy for the California Rangeland Coalition.

Regarding the Fish and Wildlife Service letter, she said that the planning department had contacted the wrong branch of the Service initially, that members of the public had contacted the right branch, and that after the planning department received the Service letter, it complained to the Service for writing a letter the County had not requested.

At the end of Ms. McCorry’s five minutes, her aunt, Supervisor Kathleen Crookham, chairwoman of the board, cut off her microphone.

Cutting off microphones is not typical elected-official behavior, even in Merced. However, McCorry had submitted letters and documents that would take longer than five minutes to read, if any supervisor bothered to read them.

Chris Robinson told the board that the application is to turn three parcels into four. His family’s intent has always been to protect the environment and habitat and has a long record of doing so. (A few brave souls in the county have testified for many years that the Robinsons have a long record of doing the opposite.) Robinson said he had worked hard with the agencies during the restoration. Biologists developed the borders of the conservation easement, which cuts across the three existing parcels.

He said his family had donated first, $600,000 and later, $500,000 to the project. Splitting the three parcels into four “probably enhances the wildlife habitat,” he claimed. He asked to reserve his remaining time to answer any questions the board might have.

The public noted that the taxpayers donated millions to the river restoration project and that no mention was made of how much money the Robinson family made in years of aggregate mining on the site of the restoration project, of necessity publicly funded to try to clean up the destruction caused by the family’s mining. It is important for the public and the board to recall the long history of this applicant’s family’s mining projects before he was greenwashed by million in public funds.

Jean Okuye, president of Valley Land Alliance (although she did not announce herself that way), testified that she was concerned about the CEQA issue of continual “piecemealing” of agricultural land. She also said that Robinson had told her he would plant orchards on one of the proposed parcels (it was not clear which parcel). She said that in Denair, a farming community in Stanislaus County (to the north), the aquifer is now reported to be moving backwards, toward the foothills rather than toward the valley floor. “Foothill farming may be the problem,” she said. (Many orchards are being planted in the hills on either side of the San Joaquin Valley.)

No one else testified and the public hearing was closed.

The board and top staff from the County deliberated.

County Counsel recommended that the board continue the item to give planning staff time to consider McCorry’s letter, two CDs of documents, and the letter from attorney Marsha Burch. He suggested that the planning staff could return to the board after this review with a supplemental report.

Supervisor Crookham wanted Fincher to clarify that the public hearing was closed and that the only future testimony would be on new issues. Fincher agreed.

Supervisor Deidre Kelsey moved to continue the item until an unspecified date in order to give staff time to review the submitted documents.

Crookham said that it would give the board time to read the material.

Supervisor John Pedrozo asked, “Who’s to say that five hours before … a new letter and it has to go again, putting off, putting off. It’s not fair to the applicant … not the ‘appellate’.”

The public notes that the board of supervisors meets in closed session an hour before every meeting to discuss litigation. Pedrozo, who draws $90,000 a year plus perks and benefits from the public trough, ought to know the difference between a court (appellate) and a member of the public (appellant). That he ran unopposed this year for a second term brings into question Merced County’s capacity for self-government.

County Counsel Fincher replied that that was a possibility, but that lack of a thorough review was unfair to the applicant. He added that Robinson’s attorney agreed that delay was required.

Crookham said the documents submitted were very lengthy and that County Counsel should have been in the loop, too, to receive them. “It’s always at the last minute,” she complained. “Everybody is scrambling.” She asked that the public have more respect for the supervisors and get things in a timely manner.

Supervisor Gerry O’Banion said, “That’s a ploy. It makes me sick …There is no stronger environmentalist in Merced County than that family. Last minute fiascos from the Raptors and Maureen and whoever she represents today are continuing to try to kill any project …Subdivision? This isn’t houses, it’s allowed by the General Plan of Merced County. His project is to improve his ability to take care of that land. Just look back on the Robinson family over the years.”

O’Banion said he’d agree to a continuance only until the next meeting, next week, and repeated that the public hearing was closed except for any new information.

“It’s so disappointing that every planning issue … 11th-hour information from Maureen McCorry, the Raptors or Valley Land Alliance or any organization. Give me a break. You should have known how you felt a long time ago. You should have submitted earlier. Don’t tell me at the last moment you have to scurry around. Some people in these groups got their 20-acres ... The MAC versus some other organization? Give me a break. The decision needs to be made, up or down.”

O'Banion's reference to people getting their 20-acre parcel splits was aimed at Okuye, who recently split her orchard into smaller parcels. However, her entire orchard is in an agricultural easement, the split was clearly for estate-planning purposes, she has no sand mine in the pipeline, so the slung mud didn't stick on Okuye's barn door.

Pedrozo complimented O’Banion on saying it perfectly. “It’s a board game and I just don’t like it.” He referred to “a lot of money” Robinson said his family had donated to the river restoration project. “But we have to prolong it a little longer and I apologize.”

The public doubts Pedrozo even considered how much money the Robinson family made on the mine, the damage of which required the publicly funded restoration project contained in the conservation easement.

Crookham added that Chris Robinson’s parents were so proud of the river restoration work and that she never thought of Chris as a developer. “I’m sorry also for what we sometimes have to put people through.”

Kelsey said that when the project was presented to the Snelling Municipal Advisory Council (MAC), Robinson addressed the MAC’s concerns about oak trees, riparian habitat “and who knows what.”

The public noted that the Snelling MAC is upstream from the Robinson Ranch, whose projects tend to damage downstream resources. MACs are initiated by supervisors for unincorporated areas in their districts. Supervisors also appoint MAC members. Three groups representing downstream interests might have been contacted: a Hopeton/Amsterdam MAC, a Stevinson MAC or the Merced River Stakeholders, which represents diverse interests from Merced Falls to the river’s confluence with the San Joaquin River. The problem is that despite years of pleas from Hopeton/Amsterdam and Stevinson, Kelsey has refused to entertain creating MACs in those areas. Robinson, once an active member in the Merced River Stakeholders, did not submit his project for its review.

County Planning Director Robert Lewis reminded the board that its next meeting would consider the annual budget and the one after that would be about the General Plan Update, two engrossing topics that might not leave time for another hearing on this matter. He suggested the best time for rehearing the matter would be at the second meeting in July.

Crookham said, “’as soon as possible’.”

O’Banion said, “It should come at the next meeting. This has been delayed. Don’t wait another month. It is unfair to the project applicant. I can’t support it.”

O’Banion introduced another motion to amend the motion on the floor to state the item would be heard “at the next meeting.” Pedrozo seconded it.

Supervisor Mike Nelson said he could not support O’Banion and Pedrozo’s amendment based on the planning director’s information. Nelson described the new material as “two hundred pages of gobbledegook.”

The public noted that Nelson’s reference to 200 pages is strong evidence he had read little if any of the submitted material.

Lewis replied from the podium that he thought the planning department could get it done by the next meeting.

County Counsel Fincher, more familiar with the submitted material, said that Lewis’s assertion would live the staff only one day for full review. “I appreciate Mr. Lewis’s eagerness but that’s a lot of work,” he said.

Kelsey said that the point of order was that her motion was for “the first available meeting. We don’t want to make mistakes that would lead to courts.”

County CEO Dee Tatum, said that the administration does not “get involved in dates and times … I hear Mr. O’Banion, but Mr. Fincher is trying … if you would allow us the latitude, it will not languish.”

Tatum explained that the reason there would only be two staff days (the second taken up with printing the supplemental report) is because the report must be out for public review 72 hours before the meeting, according to the Brown Act.

O’Banion said it should be done by the second meeting, on July 1.

Tatum agreed it would be done by July 1.

O’Banion said that if the second to his amendment were withdrawn (Pedrozo withdrew it), the amendment would be withdrawn with the understanding the matter would be heard again by the board on July 1.

Pedrozo asked again if the public hearing had been already closed.

Fincher said July 1 sounded good but suggested the board inquire if Robinson would be available on that day. Robinson nodded that he would be.

Crookham said it was all clarified and called for the vote. It passed unanimously.

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High Praise for Commissioner Lashbrook

Submitted: Jun 04, 2008

A letter to the editor of Loose Cheeks

Chairman of the Merced County Planning Commission Steve Sloan, at the last Commission meeting on May 28, took time to commend his fellow commissioners on their teamwork in approving four land-use projects. Surprising? It shouldn’t be.

As many of you are aware, Commissioner Sloan is very clear on where his interests lie – his votes have been consistently at odds with organizations committed to protecting the environment – whether air, land, habitat/species, or water. This consistency has also made an enemy of our local Farm Bureau, which doesn’t view the Chair as a friend of agriculture. So, one might wonder, how did Commissioner Lashbrook drift so far afield from her role as sage of the watershed, sage of the river, and sage of all things organic, green and agricultural?

As some of you may be aware, Commissioner Lashbrook often complains that one vote lacks power. With two commissioners absent on May 28th, the stars were in alignment: one vote could wield real power. In essence, a unanimous vote was required to take action on any item on the agenda. If any one of the three commissioners present had voted against any one of these projects, that project would have been denied.

Accordingly, students of the ways and means of the Merced County Planning Commission hearings can certainly appreciate Mr. Sloan’s need to shower Ms. Lashbrook with praise for how she handled herself throughout this hearing (in stark contrast to her role on May 14, 2008 – see in particular minutes 30:00-37:00 from the audio/video tape).

On May 28th, Commissioner Lashbrook’s performance was bold and decisive. In considering the Jaxon Enterprise Mining project in eastern Merced County, she declared in a loud and confident voice, “I like this project.” According to Ms. Lashbrook: “This was in the right place for a mine.” Seemingly, for Lashbrook, this was “somewhere out there.”

Her reasoning seemed to go something like this:

This was not on the river, ergo, this was not a pristine location, ergo, this is grazing land, ergo – this is perfect for a mining project. According to Commissioner Lashbrook’s logic, this was certainly not in an area that supported habitat –“like the [Merced] river bed.”

Evidently, to Ms. Lashbrook’s thinking, Eastern Merced County is a barren, worthless landscape. As members of Et Al, listened, they were astounded. Was this dismissal all they could count on from a self –professed agrarian progressive? The answer was becoming painfully obvious: Yes, this was all. With the public hearing safely over, the public simply had to endure the insult embedded in the assumptions Ms. Lashbrook eschewed and the ultimate hypocrisy being practiced in her other life – “outreach and education” in the name of our watershed.

Had Commissioner Lashbrook forgotten her fellow Mariposans and fellow Merced River Allies – some of whom are within just a few miles of this “great project” – or simply sold them down the river? One might have thought that she did not understand the “Watershed model” and “Groundwater model” she fashioned out of a munificent public grant to educate 5th graders.

Yet, Ms. Lashbrook, in her capacity as staff for the EMRCD, was all too willing to take credit for the event by piling brochures on a table at the Cattlemen’s Spring Tour in April, 2008. This event featured experts on the value of grazing land – just minutes away from the Jaxon site. In her rush to judge those in attendance, she may have forgotten to listen to the ranchers and members of the California Rangeland Conservation Coalition, who succinctly explained why this very same (pristine) land is valuable for livestock, habitat, and as recharge for our water supply. Some locals had even advised Merced County elected officials to drive out on White Rock Road so that they could truly appreciate the impacts of the mine.

Or, maybe she simply forgot what MID staff, hydrologist consultants, and local farmers on the east side of the county have been stating emphatically in front of Lashbrook at every recent MAGPI meeting -- the aquifer in this region of the county was/is in overdraft. However, there was nary a representative from Farm Bureau, Sierra Club, MARG, CWA, or Valley Land Alliance to jog Ms. Lashbrook’s memory on the lack of water in this region – just Et Al and one local farming family.

But fear not, this was not the only contradiction in this “affairs of the mine.”
May 14th, 2008, provided a substantial audience for Ms. Lashbrook’s fishing for a position to take. In front of a full house of investors, all in town to advance their project, Ms. Lashbrook showed her stuff.

She began with a correction to a letter she had not read. She was wrong.
She asked great questions; then retreated. Ms. Lashbook then came up with a new possibility. Then she retreated again. Then after all of this time, she went ahead and voted for this mining project – on the river.

“I do live down river of this and have not noticed any effect of it – even in its illegal state – and I CARE A LOT ABOUT HABITAT. I am not sure what is happening here, but I certainly have not noticed any changes over the last few years”…. and then… moments later.

“Would it be possible to continue this? --to get a site visit?”

“The Taco Truck” precedent was raised as a model by Deputy County Counsel Robert Gabriele. Out-of-town investors snickered, wondering if this suggestion was for real. It was: The Taco Truck merited enough concern to be continued at the November 5, 2007, hearing.

Perhaps, just perhaps, the Thoreson mining operation should be continued. Commissioner Sloan asked her directly if she wished to make a motion to continue. Commissioner Lashbrook, demurred or perhaps, deferred – one can never quite tell.

Commissioner Sloan asked again. Would you like to make a motion? Lashbrook came up with new idea. Could we hold a public hearing on the site?

To the Rescue: Deputy Counsel – more legal advice… and “help” offered by the Applicant.

Ms. Lashbrook deftly deflected attention away from Mr. Sloan’s question and encouraged Des Johnston to approach the podium – ostensibly to advise if the applicants would permit a site visit.

Consultant and a former member of both the Merced County and City of Gustine planning staff, Des Johnston changed the subject: This is not a CVC issue…. We have a good negative dec here…. And then …

A motion was made – not from Ms. Lashbrook, but Commissioner Tanner -- to approve the project. Head down, muffled voice, Ms. Lashbrook allowed an almost inaudible “ohhhhh kay.” The audience let out a collective gasp of stale air. Someone asked: Did she just vote to approve? Yes. UHHHHG. The audience was rendered speechless in pondering the affairs of the mine.

Postscript: This was a River Project and this was a “yes” vote by Ms. Lashbrook. Along with the Schmidt Mining Project this made the third yes vote for aggregate by Ms. Lashbrook – with two of these three projects on the Merced River. Ms. Lashbrook may want to study the audio tapes of previous hearings before proceeding to her next vote.

Finally, don’t take our word, we encourage you to enjoy the show(s) – tune in and watch the Planning Commission video or listen to the audio – at press time it was not yet posted on the County website, but stay tuned.

Signed:
Suzzy Q. Buckheart

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