May 14, 2003
The Honorable Beth Labson Freeman
Judge of the Superior Court
Hall of Justice
400 County Center 2nd Floor
Redwood City, CA 94063-1655
Re: RESPONSE TO SAN MATEO COUNTY GRAND JURY REPORT: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT PROPOSED COASTAL ANNEXATION
To the Honorable Beth Labson Freeman:
The Board of Directors of the Midpeninsula Regional Open Space District has received the San Mateo County Grand Jury Report entitled “ Midpeninsula Regional Open Space District Proposed Coastal Annexation” dated April 7, 2003. At its meeting of May 14, 2003, the Board of Directors adopted the following response to the Grand Jury Report. In accordance with law, this response is also being submitted to the County Clerk and Grand Jury.
Grand Jury Recommendations
Grand Jury Recommendation 1:
The County should amend the Local Coastal Program to ensure agricultural land preservation is prioritized over competing uses, including public access. Trail permits, for example, should require buffer zones and construction of physical buffers as needed between the proposed trails and ancillary uses and any agricultural operations.
Response to Grand Jury Recommendation 1:
This recommendation is inapplicable to the Midpeninsula Regional Open Space District.
Grand Jury Recommendation 2:
The District should revise its existing policies and Coastal Annexation Service Plan to include preservation of agricultural lands. This plan should include:
a) The active pursuit of agricultural easements and Farmland Conservation funds
b) Revised language in the proposed ordinance prohibiting acquisition of property by eminent domain to ensure that involuntary conversions for agricultural easements are not precluded.
Response to Grand Jury Recommendation 2:
The Recommendation either has been implemented as summarized below, or has not yet been implemented, but we expect that it will be implemented in the future in the event that the District Board of Directors approves the San Mateo Coastal Annexation Area Final Service Plan.
The Draft Service Plan in its current form specifically includes preservation of agriculture as an important project objective. The Draft Service Plan includes policies and guidelines that specifically relate to preservation of agricultural lands and operations. These
policies are specifically “directed at preserving and fostering existing and potential agricultural operations in San Mateo County in order to keep the maximum amount of prime agricultural land and other lands suitable for agriculture in agricultural production (see Draft Service Plan, p. 11).
Because the Draft Service Plan and accompanying Final Environmental Impact Report (FEIR) have not yet been presented to the District Board, the Board is not in a position to prejudge the results of those proceedings. In the event that the Board elects to proceed with the annexation, however, we have received no testimony to date that would support any reduction in the extent to which the Service Plan would support preservation of agricultural lands. Therefore, we expect that the Recommendation that the Service Plan include preservation of agricultural lands will be implemented if the annexation proceeds.
Recommendation 2.a also states that the Service Plan be revised to include active pursuit of agricultural easements and Farmland Conservation Funds. The Board believes that the language of the Draft Service Plan makes it clear that active pursuit of agricultural easements is part of the project objectives. However, in view of the Grand Jury’s Recommendation that this component be emphasized, the Board has directed staff to make the necessary revisions to the Draft Service Plan that will be presented to the Board for final approval.
Similarly, the Board has directed staff to revise the proposed Final Service Plan to implement the Recommendation to pursue Farmland Conservancy Program grant funds, as well as other grant programs available to preserve agricultural operations.
Recommendation 2.b states that the District retain the power of eminent domain in the Coastal Annexation Area (CAA) in order to provide the opportunity for certain tax advantages in acquisitions commonly know as “friendly condemnations.”
The Recommendation will not be implemented because it is not warranted for the following reason: As the Grand Jury notes, the District’s determination not to exercise the power of eminent domain in the CAA was based upon a recommendation from the Coastal Advisory Committee. This was a broad-based Committee representing a wide variety of Coastside stakeholders, including a substantial representation from the agricultural community. It was the strong recommendation of the Committee that it was important for the success of the project that the District not exercise its power of eminent domain, and purchase lands from willing sellers only.
While discussing this issue, the Committee specifically discussed the potential tax advantages that retention of the power of eminent domain might confer in a particular transaction. District staff explained the potential tax advantages from so-called “friendly condemnation” sales that sellers have been able to receive as a result of sales to the District. Notwithstanding this potential advantage from so-called “friendly condemnation,” it remained the recommendation of the Committee that the power of eminent domain not be exercised, even if this potential tax advantage could not be realized.
The Board has made a commitment to the Committee and residents of the Coast that it will not exercise its power of eminent domain in the annexed area, and the Board feels it is essential to honor this commitment. The Board cannot simultaneously determine not to exercise this power and still retain the power to offer “friendly condemnation” of any type of interest in land, including agricultural easements.
Therefore, the Board respectfully declines to accept this recommendation from the Grand Jury.
Grand Jury Recommendation 3:
The District should prioritize agricultural operations and commit District resources to the protection of agricultural lands on a par with visitor-serving open space.
Response to Grand Jury Recommendation 3:
To the extent this Recommendation intends that the District Service Plan contain provisions that protect agricultural land operations on a par with protection of visitor-serving open space, the Recommendation will be implemented in the event that the Board approves the Final Service Plan as currently proposed. To the extent this Recommendation intends that the District Service Plan contain provisions that acquisition of land with current agricultural operations will be equivalent in acreage to acquisition of land that will be used for visitor-serving open space, this Recommendation cannot be implemented for the following reason: As stated in the Draft Service Plan, the extent and level of the expansion of services, and in particular acquisition programs, will be dependent on a number of factors including opportunities to acquire land offered by willing sellers without the use of eminent domain; additional funding opportunities from public or private sources to complement existing District resources for land acquisition; grants; requests by other public or private non-profit property owners for land management expertise and services; and the potential for expanded District revenues through a future voter-approved funding measure.
Therefore, it is not possible to speculate about the nature on acreage of specific parcels or easements that the District may acquire under this Program to insure such equivalency.
However, preservation of agricultural land and agriculture on the San Mateo County coast is a major component of the District’s proposed annexation project as stated in the following mission statement for the Coastal Annexation Area:
To acquire and preserve in perpetuity open space land
and agricultural land of regional significance, protect and
restore the natural environment, preserve rural character,
encourage viable agricultural use of land resources, and
provide opportunities for ecologically sensitive public
enjoyment and education.
In addition, the Draft Service Plan contains policies to preserve agriculture and to insure that the District’s low intensity, visitor-serving uses do not adversely affect agriculture (see Draft Service Plan, p. 11).
The Draft Service Plan does not place the value of protection of agricultural land or open space lands either above or below the other. This is because no such choice need be made, since the Service Plan requires that any visitor serving open space uses not adversely affect agriculture. Therefore, these land uses are protected on a par. The objective of the Service Plan and EIR is that these two uses co-exist successfully and compatibly by the use of appropriate mitigation measures and land management practices.
Grand Jury Recommendation 4:
The District should immediately retain staff expert and experienced in agricultural operations.
Response to Grand Jury Recommendation 4:
This recommendation has not yet been implemented, but will be implemented in the future in the event that annexation is proposed and upon approval of the San Mateo County Coastal Annexation Area by the Local Agency Formation Commission (LAFCo).
The District’s existing staff currently consults with experts who are knowledgeable and experienced in agricultural land preservation and management on an as-needed basis. The Draft Service Plan provides a discussion on staffing levels when the annexation is completed (see Draft Service Plan, page 19). As the Grand Jury noted, in the Draft Service Plan, the District committed to “acquire the necessary staff and expertise in the area of agricultural land management.” Initially, it is anticipated that a planning staff person would be hired to work with local residents and agricultural interests. In light of the extensive agricultural lands in the project area, the District would seek a staff person with the necessary expertise in agricultural operations. It is also possible that the District would continue to retain consultants with expertise in planning and managing particular types of agriculture to assist staff.
Grand Jury Recommendation 5:
The District should ensure the Coastal Annexation Area, if approved, is specifically managed by a manager expert and experienced in agriculture operations.
Response to Grand Jury Recommendation 5:
This recommendation has not yet been implemented, but will be implemented in the future in the event that annexation is proposed and upon approval of the San Mateo County Coastal Annexation Area by LAFCo and subsequent acquisition of agricultural land within that area.
As lands are acquired in the Coastal Annexation Area, staffing levels would increase as described in the Draft Service Plan (see Draft Service Plan, page 19). With the acquisition of agricultural lands the District would seek staff with knowledge and experience in agricultural operations and land management. The District will insure that personnel qualified and experienced in agricultural operations will oversee any agricultural programs or acquisitions undertaken by the District in the CAA.
Grand Jury Findings
For reference, each paragraph of the Findings will be referred to herein by number.
Paragraph 1: District has been successful in preserving open space in San Mateo County.
The District agrees with this Finding and thanks the Grand Jury for this affirmation.
Paragraph 2: District does not currently have staff or experience in preserving agricultural lands as open space.
The District agrees in part and disagrees in part with this Finding.
The District has experience preserving a variety of agricultural lands as open space on lands it currently owns. For example: the District leases a 70-acre Christmas tree farm at Monte Bello and Skyline Open Space Preserves; the recently acquired 770-acre Big Dipper Ranch is leased by the District for grazing; the District leases 3-acre Picchetti Ranch Winery, including vineyards; and, until recently, a 2-acre chestnut orchard at Skyline Open Space Preserve was leased to the family who originally owned the property. In addition, the District is currently working with Ridge Vineyards to acquire conservation easements over vineyards at Monte Bello Open Space Preserve.
The District does not currently have employees with specific expertise in management of agricultural operations, but as the Response to Recommendation 4 states, qualified personnel will be retained if the Annexation is approved. However, the District does have personnel highly qualified in a wide variety of resource management issues, which are also common to agricultural operations, such as erosion control, control of invasive and exotic species, avoidance of impacts on adjacent uses, and watershed and water source management. This expertise will be immediately valuable and available if the Annexation Project is approved.
Paragraph 3: Compatibility of visitor serving and agricultural uses.
The District disagrees partially with Finding 3 as follows:
The District does not agree with the Grand Jury’s finding that “Visitor-serving or residential uses and agricultural operations are not compatible.” The District does agree with the Grand Jury’s finding that buffer zones and physical barriers have been found to allow agriculture and open space uses to co-exist successfully.
DEIR recognizes that in some instances conflicts in use may arise when public
access to open space is provided in close proximity to an agricultural
As a result, the District DEIR and Draft Service Plan contain mitigation measures and policies designed to avoid such land use conflicts. The nature of the recreational use and type of agricultural operation are key components in compatibility. The District agrees with the Grand Jury that “buffer zones and physical barriers that definitively separate agricultural operations and non-agricultural uses” are effective means to prevent or reduce user conflicts. Natural features such as topography, vegetation, watercourses and geology can also be effective buffers.
Paragraph 4: Inapplicable to the Midpeninsula Regional Open Space District.
Paragraph 5: Mission Statement.
The District agrees that the Mission Statement for the Annexation Project includes the encouragement of viable agricultural use of land resources.
Paragraph 6: Prioritization of Agricultural Uses and Visitor-Serving Uses.
The District agrees with the Finding that the Draft Service Plan contains the listed commitments to avoid adverse impacts on agriculture, to locate improvements away from agricultural lands, and to acquire the necessary staff and expertise in agricultural land management. The District disagrees that the EIR or Draft Service Plan does not give agricultural land preservation the same importance as preservation of visitor-serving open space for the reasons set out in Response to Recommendation 3.
Paragraph 7: Funding for the Project.
The District agrees with the Finding that the Annexation Project will not increase District funding and that any future parcel tax measure, if one were imposed, would currently require a 2/3 vote.
Paragraph 8: Revenue Impacts will not be Significant.
The District agrees with the Finding that potential revenue losses and service impacts to public agencies in San Mateo County from the Project will not be significant.
Paragraph 9: Farmland Conservancy Grant Program.
The District agrees with the Finding that the Farmland Conservancy Grant Program may provide grant funding to the District to assist in preserving agricultural lands. The District will seek this and other agricultural grant funding as stated in the Response to Recommendation 2.a. in the event that the annexation is proposed and approved
Paragraph 10: Eminent Domain
The District agrees that it currently has the power of eminent domain and that the Coastal Advisory Committee recommended that the District prohibit the use of eminent domain in the area to be annexed. The District has set out the manner in which the prohibition on the use of eminent domain will be made secure in the Draft Service Plan on pp. 10-11 and in the Draft EIR on p. IV-B-7, 8.
Paragraph 11: IRS Tax Rules for Involuntary Conversions
The District agrees that tax treatment of gains from sales of land by “involuntary conversion” exist and vary from case to case.
With respect, the District Board of Directors appreciates the Grand Jury’s acknowledgment of the success and important role the Midpeninsula Regional Open Space District has played in preserving open space in San Mateo County. The Board appreciates the Grand Jury’s recognition of the strong community support for the Coastal Annexation Project and for recognizing that the Project will not have a significant revenue impact on services in the Coastal Annexation Area.
However, the District Board strongly disagrees with any conclusion or suggestion that the Draft Service Plan does not sufficiently protect agricultural lands or that the public could have been misled about this document. This document was developed after substantial and lengthy public participation on the Coast and after many public hearings. The numerous and significant protections it contains for agriculture speak for themselves. The Board has insured, and will continue to insure, that the Draft Service Plan contains strong protections for agricultural operations. The Board has viewed, and will continue to view, agricultural preservation as a significant component of the Coastal Annexation Project.
Nonette Hanko, President
Board of Directors
cc: MROSD Board of Directors
L. Craig Britton, General Manager