Argus-Courier news article on the May 28, 2002 Supervisors' meeting
Lafferty Ranch: what next?
The Board of Supervisors' vote to turn down Petaluma's request for OpenSpace District funds was a major setback in the city's 10-year effort to open its mountaintop property as public nature park. Having exhausted its financial resources, what options does the city have left?
By CHIP MCAULEY, ARGUS-COURIER STAFF
The long road to the opening of Lafferty Ranch as a public park became a little longer May 28 with a 3-1 vote of the Sonoma County Board of Supervisors that killed Petaluma's Open Space District application to preserve the city-owned land on Sonoma Mountain as open space.
Second District Supervisor Mike Kerns voted to uphold OSD staff's recommendation not to move forward on the application, citing possible legal entanglements. Supervisors Paul Kelley and Tim Smith also voted to uphold the staff's decision.
"I have a problem with the application as it currently is before the district," said Kerns, suggesting the city re-apply as part of the OSD's matching grant program. Potential litigation by opponents of the public park weighed heavily on his mind, he said.
Supervisor Mike Reilly was the only supervisor to approve the city's application. "We get sued two or three times a week anyway," he said, adding that the vote would determine whether the board would let wealthy land owners dictate policy through threat of litigation. "If we can't find a way to work with Petaluma on this issue, there won't be a park," he said.
"You've got a number of various serious legal ramifications," said Smith. He and Kelley remained concerned that Petaluma would use the OSD money for litigation or eminent domain purposes on the property, though it is not regular OSD policy to speculate on a city's use of related funds before approving an application.
Councilmembers Matt Maguire and Mike Healy told the supervisors the city would stipulate not to use the funds for purposes other than preservation.
Supervisor Mike Cale, whom Lafferty proponents felt would support the city's position along with Kerns, retired from the board earlier this month. With that, support for the application all but disappeared.
"I can count to two," Kerns said, watching the city's chances of an application approval evaporate before the large-scale public presence at the meeting. "It's tough for me," he said, "because I want to help the city of Petaluma."
If the supervisors had approved the application, it would have been a giant leap forward in opening the 270-acre Sonoma Mountain parcel to the public. The city has so far spent approximately $900,000 on an environmental impact report and related costs to open the site.
Last summer the City Council formally submitted an application to sell the park's development rights to the Open Space District. Councilmembers said the purchase would keep the city-owned park free from future development and provide money to help open Lafferty to the public.
The Rohnert Park, Sebastopol, Healdsburg and Windsor city councils all passed resolutions supporting Petaluma's application.
In her presentation to the board, Petaluma's Director of General Plan Administration Pamela Tuft said the "uniqueness of the site is equal to the passion" surrounding the issue.
The vote followed numerous pleas by members of the public for the supervisors, acting as directors of the OSD, to move forward on the city's application to preserve the space. Signs of "Open Lafferty Now" filled the chambers and City Councilmembers Pamela Torliatt, Maguire and Mike Healy spoke.
"The support for Lafferty in Petaluma is very widespread," said Healy. Maguire said, "I am asking you to ask yourself why you sit at this dais."
Passionate speakers included Patricia Tuttle-Brown who said, "My heart is singing over this issue and I'd like you to listen to yours." She then broke into an a cappella Lafferty Park-themed song.
"Lafferty is going to be a park used for all, not just for the elite," said Robert Ramirez.
The battle for the opening of Lafferty has gone on for approximately 10 years. Main opponents are a group of Sonoma Mountain land owners who have banded together as the Sonoma Mountain Conservancy. One of them is Peter Pfendler, who built a home on property he owns adjacent to Lafferty. SMC members have cited alleged complications over the park's opening, including road repairs, fire danger and other safety concerns.
While there was a massive outpouring of support for opening the park at the meeting, only one member of the SMC, Michael Caruana, was present to voice his concerns over the project, urging the supervisors not to support the application. Caruana said he had not felt this outnumbered since he accidentally engaged a group of North Vietnamese in 1969, but thought the threat of development to Lafferty was overplayed. "No developer in his right mind would buy the ranch," he said.
Staff recommendation was no
Kerns, who was criticized for not supporting the application, noted that Andrea Mackenzie, general manager of the OSD, said the application did not meet the organization's policy criteria, and her statement weighed heavily in his decision.
According to the report, "While the Lafferty Ranch property on Sonoma Mountain has open space values worthy of preservation, the purchase of a conservation easement for the purposes of financing a public park does not appear to be the appropriate mechanism for participation by the district.
"Secondly, the city makes clear in its project application, resolution and subsequent correspondence that the city has no available funds to pursue this project further. This representation poses difficulty to the district to authorize funding to support the city's goal for developing a park at this time. Additionally, the property does not appear to be at risk of development or adverse use in light of the city's ownership, the existing and proposed General Plan designation of the property as 'public open space park.' The city could choose to land bank the property until it has resolved outstanding access, boundary and/or title issues and is able to demonstrate its funding commitment and ability to implement the park project. It is this district's policy to give priority to funding projects that are no encumbered by such limitations," the report continued.
"If in the future, the city were able to resolve these issues, the city could submit a matching grant application for the district's consideration. Should the city decide to surplus the property for non-open space purposes in the future, the district would be willing to re-evaluate an application at this time. In summary, district staff recommends this project application, as submitted, requesting purchase of a conservation easement, not be added to the district's work program."
Kerns said it would have been a tremendous stretch of policy that set a bad precedent for the district. He also cited the advice of Steve Woodside, county counsel, whom he said would have trouble defending a lawsuit against the county if one were to arise over the application in an area such as OSD expenditure plan consistency.
Kerns changes mind
On record as supporting the city's application during his recent re-election campaign, Kerns characterized his about-face as "somewhat of a change of mind."
He explained, "This issue here was not whether or not Lafferty should be opened as a park. It was: Is this application consistent with policy?"
Some thought Cale would be supportive of the city's proposal but, according to Kerns, Cale said he would only look at it and had not committed one way or the other.
"The real stretch we were making, and the stretch that we could not make, was: Is the property under the threat of development or is the property already protected?" Kerns said, adding that ultimately Petaluma was looking for funding to get the park open. He reiterated that the city could explore another option with the OSD. "This is why the matching grant program was established," he said.
The application before the board last week, "was a straight conservation easement application. What really changed things for me was the government code that says that before the city would sell the property off they would have to go through a surplus process to offer it to other public entities including the OSD," he said.
Receiving a matching grant, however, is far from a certainty. In order to be eligible, the city would have to prove access to the site and resolve the access and boundary disputes before funding could be given. Both are issues at the heart of the controversy.
What would it take to resolve the issues?
According to Kerns, "I guess they'd maybe have to go to court." He did, however, admit to some uncertainty about the legal nuances that would need to take place before the city's eligibility for a matching grant could be established.
When originally approached by Mayor Clark Thompson, Healy and Maguire, representing the majority of the City Council, Kerns said he told them, "I will support your application and make your arguments before the board."
Though he noted it would be a tough sell and thought it would be unsuccessful, Kerns said he had a number of informal conversations with board members about the topic.
Ultimately, he could not make the finding that would validate the OSD moving forward to protect the land.
"This property is not under the threat of development. That's what changed it for me," he said. "Given that there's an alternative, I have to do what I feel in good conscience is the right thing to do. I felt I made the right decision."
Kerns said he was unwilling to put the OSD at risk.
Far-reaching implications
Kerns' vote drew questions and criticism.
"He totally failed the people of Petaluma," said Maguire. "OSD policy is being dictated by a rich man's lawyer."
The proposed matching grant application, Maguire said, could easily be used as a method to strangle the project. Maguire praised Reilly as "the only one who stood up for the public."
"He shouldn't plan on another term," Maguire said of Kerns chances for re-election. In March, Kerns won re-election to the supervisorial office.
"This is a huge long-term mistake," Maguire said adding that the supervisors would "live to regret this."
According to Maguire, they helped cement the blueprint for killing OSD projects. "This could be the death knell for the re-authorization of the OSD," he said.
"I'm disappointed with the result," said Healy, who added that he and Maguire had both offered suggestions to the board that would have resolved concerns over money being spent on eminent domain issues.
"I went in more or less expecting a 2-2 tie." he said.
Thompson said, "I'm disappointed that the supervisors couldn't see their way clear and approve the city's request. We're now going to have to look to other areas and maybe pursue a matching fund proposal."
Torliatt said, "I was at the meeting to support citizens of our community. The people that spoke said more than I can ever say representing them in our community." She cited the dedication of the volunteers, adding that quite a few people had been working for more than 10 years in support of the project.
"I see the city discussing with the Board of Supervisors re-applying for the matching grant funds. But, I believe there are members of the community who will look for other funding sources to open up the park," she said.
"I think it will definitely impact re-authorization of the OSD funding source," said Torliatt citing the fact that the south county has not received its fair share of the OSD benefits and some audience members at the meeting were the volunteers who walked the precincts to have those measures passed. "When you alienate them, the people who do the leg work," she said, "you lose the public's trust."
Bruce Hagen, member of the Friends of Lafferty Park, said he was disappointed but not entirely surprised by the vote. "Surprised, perhaps, at Mike Kerns," he said adding that the city and public had presented an overwhelming case for the application.
Even with that, Hagen said the group had their doubts over the application's approval.
"How strong does the voice of democracy have to before the elected representatives respond?" he asked.
On the possibility of the OSD matching grant, Hagen said, "If anything's a sham, that is." The matching grant, he said, is subject to possibly more litigation than the original application. "They're not going to give us a grant to defend our rights for the EIR."
Hagen and others plan to continue their activism to open this public land to the public. Although the city does not currently have the money to open the park, the application would have secured the site in perpetuity.
"There's an angel somewhere," said Hagen of the possibility of a private donor to help in the efforts to open the park. Programs through the state of California, the Coastal Conservancy and Proposition 40 may also have potential, he said.
"I think because of what it is and where it is, it will open up as a park," Hagen said, though he admitted it may take some time, and require changes in the OSD board and the presence of the project's opponents.
Friends of Lafferty member Larry Modell said, "What we saw was three county supervisors vote to abandon the public interest. And there wasn't much pretext about it. They say the Open Space District rules say we can do this, and we have done it in the past, but we refuse to do it this time.
"Why? Because they were afraid of Peter Pfendler's lawyers.
"I don't know which is more disturbing -- their inconsistency and the way they singled out Petaluma for punishment -- or the way they faced in and refused to stand up for the public interest. Nearly all their discussion, and their concern, was about how Petaluma might spend the Open Space money. This is ridiculous! The Open Space District never asks landowners how they will spend the money they receive for development rights.
"They certainly didn't ask Peter Pfendler what he was going to do with the $1.4 million of public money they gave him in 1996. They never ask anyone. That entire issue was raised in letters from Pfendler's lawyers and should never have been pursued by public officials."
"Lafferty is a magnificent property, and it is our birthright. City and county officials made a promise to the people of this county almost 40 years ago that it would become a park. Peter Pfendler and most of his allies knew that full well when they moved up there. The children of Petaluma and Sonoma County, current and future, along with everyone else, have a right to expect that promise to be honored."
Moving forward
While suffering a temporary setback, the City Council will continue to weigh its options, whether pursuing the matching grant proposal or seeking a private donor to help facilitate the process. While activism continues on the part of Friends of Lafferty Park and others, Petalumans can rest assured that even after 10 years, the battle for Lafferty is just beginning.
Interested parties have the opportunity of participating in the process by taking part in the fifth Walk to the Park. The event, sponsored by the FLP begins at 10:30 a.m. June 16 atop the Keller Street garage and will walk down East Washington Street to Adobe Road, then up Sonoma Mountain Road to the gate of Lafferty which remains closed to the public.
(Contact Chip McAuley at cmcauley@arguscourier.com)
Argus-Courier editorial on the May 28, 2002 Supervisors' meeting
Lafferty cause calls for new strategy
Supervisors' vote signals need for proponents to rethink how to pursue park goal
It's a shame that the threat of litigation by a small, privileged group of Sonoma Mountain property owners has been able to block the City of Petaluma from opening its 270-acre mountaintop Lafferty Ranch to the public.
And it's disappointing that a majority of the Sonoma County Board of Supervisors -- including south county representative Mike Kerns -- failed to support the city last week in a key vote that would have given a huge boost to Petaluma's efforts to open Lafferty as a passive use hiking park.
On a 3-1 vote, the supervisors turned down the city's application to sell Lafferty's development rights to the county open Space District. The purchase of development rights by the OSD would have guaranteed that Lafferty could never be developed and would have given the city funds to prepare Lafferty for public use and preserve it.
The proposal had solid support from Petaluma council members and from four other city councils in the county that had passed resolutions supporting Petaluma's application.
Petaluma council members and Lafferty supporters had counted on Kerns' support. During his recent re-election campaign, the supervisor had promised not only that he would bring the city's application before the Board of Supervisors, but that he would support the city's position. But when it came time to vote, Kerns reneged on his campaign promise, saying he had a change of mind.
Kerns and two of his colleagues -- Tim Smith and Paul Kelley -- were swayed in part by the threat of litigation by park opponents. Only west county Supervisor Mike Reilly supported Petaluma, saying the board should not let wealthy land owners dictate policy through litigation.
But now that the county vote is over, it is time for the city and park proponents, including the Friends of Lafferty, to begin work on a new strategy if they truly hope to see this long-awaited dream realized. The City of Petaluma, which has spent nearly $900,000 on an environmental impact report and legal costs to help open Lafferty, does not have the financial resources to continue fighting the expected legal challenges by Sonoma Mountain residents whose pockets are considerably deeper than the city's.
Since Lafferty opponents have shown little desire for compromise, the remaining questionable legal issues they raise must be battled in court, and doing so will require money. Getting that money will require creatively and commitment by park proponents who can work with city officials to establish a legal defense fund or similar non-profit foundation which could help raise necessary funds to keep the battle going. Monies from such a fund could also be used to obtain matching grants from the Open Space District, provided Kerns and his fellow supervisors follow through on their offer to consider such grants in the future. After all, south county residents have contributed more than $13 million through the county's quarter-cent sales tax to the Open Space District fund since 1990 and have nothing to show for it in the way of publicly accessible open space.
Unfortunately, without a legal fund to continue the effort to open Lafferty, this mountaintop property will likely remain closed indefinitely and south county residents will be deprived of a wonderful natural resource.
Argus-Courier op-ed guest column by Yigal Toister, June 5, 2002
On Tuesday May 28, the Board of Supervisors, sitting as the board of directors of the Sonoma County Agriculture Preservation and Open Space District, rejected the City of Petaluma's request to purchase the development rights on Lafferty Park.
Lafferty fits all the highest priorities as set by the district. It's extremely visible and easily accessible to most of the county residents. Best of all, Lafferty is already designated as a park. This type of property is exactly what the voters had in mind when they agreed to tax themselves.
It was very clear to all present that the main reason the supervisors rejected Petaluma was legal threats by Lafferty's deep pocket neighbors. Our supes had received a letter from the good neighbors' lawyers.
A threat of litigation is much more effective than any actual lawsuit. Once a lawsuit is filed, it's in the court's hands and it gets resolved one way or the other. But threaten one and you don't have to do anything, just watch the other side squirm. Indeed, a meek and overly cautious county counsel swallowed the letter's content whole, even though it seemed that most of the claims it made were irrelevant for purpose of that hearing.
One of the claims raised was that Petaluma is a public entity and as such does not need protection from development. This claim might not have been bogus had not the supes already set a number of precedents to refute this argument. They gave district money on numerous occasions to the Sonoma Land Trust, an entity whose whole purpose is to preserve land from development. They gave district money to the Bodega Bay Fire District and to the Monte Rio School District. They placed 1,400 acres of Santa Rosa-owned farms into open space. The most glaring example was in 1998, when they gave $255,000 in open space tax money for a conservation easement to the State of California! We can all agree that the state could have protected itself much better than Petaluma.
Another claim is the bad state of Sonoma Mountain Road, labeled by the lawyers as "tort exposure." Sonoma Mountain Road is a county road and even though Petaluma is not famous for its smooth streets, this road is not within its jurisdiction.
If the road is dangerous, the county can only blame itself. Checking the record, I saw that the district approved $4 million in open space money to help complete the Prince Memorial Greenway along Santa Rosa Creek, approved a repair to an unused access road at Hood Mountain Regional Park, $80,000 to begin planning Taylor Mountain Regional Park and an additional future cost of $275,000 for a trail system and other amenities.
So, after promises of "leadership that delivers" and after languishing for 10 months within the district bureaucracy, a request by a city of 50,000 falls by a lawyer's stroke of a pen. Petaluma and the south county deserve as fair a treatment as the supes afforded to parks in Healdsburg, Cloverdale, along the Russian River and in Santa Rosa. If the treatment of our area continues to manifest itself in such a manner, it'll be hard for the district to find the support when it comes for reelection.
It should be noted that the supervisors' vote was not unanimous. Mr. Mike Reilly, who does not even represent this area, stood out as a man among the good old boys. No responsible government can allow itself do be swayed by threats, legal or otherwise.
(Yigal Toister has been a Petaluma Realtor for 25 years. He was a director of NORBAR (North Bay Association Of Realtors) and has served on the Petaluma City Budget Committee.)
Leadership that delivers Lafferty
Argus-Courier Column by Bruce Hagen, June 12, 2002
Late last month, our supervisor, Mike Kerns, joined by Supervisors Paul Kelly and Tim Smith, rejected the city of Petaluma's application for Open Space District funding to help open Lafferty Park. I'm trying to figure out why -- especially for Supervisor Kerns, who earlier claimed to support the city.
In the Argus' June 5 story, Kerns said the OSD staff report influenced his "somewhat of a change of mind." The report reads like other county staff reports on Lafferty, where the staff was under pressure to support foregone political conclusions. For instance: "... the city makes it clear ... that the city has no available funds to pursue this project further. This representation poses difficulty to the district to authorize funding to support the city's goal for developing a park at this time." In other words, we can't give you money to open Lafferty Park because you need money to open Lafferty Park. Kerns didn't question this "Catch 22" rationale.
Another concern, expressed by Peter Pfendler's attorney, echoed by Kerns and Smith, was the application's consistency with the district's expenditure plan. More back room monkey business: In August 1997, a senior county bureaucrat, overriding June 1997 and October 1995 written opinions from his department, claimed Lafferty was not consistent with the county General Plan. Why? Lafferty was not a park, he said, but merely a trail, because it didn't have picnic benches or play equipment. We sent Kerns a detailed rebuttal to this claim two weeks before the hearing, but he didn't use it.
Staff also questioned whether Lafferty was threatened with development. Kerns said the clinching argument was the government code requiring the city to offer the property to the OSD before it could sell it to a developer. Think about what he's saying: we're not allowed to buy development rights today for $1 million, which would enable opening Lafferty Park, because we could buy the property in fee for $5 million when the city finally gives up on Lafferty Park. Did he think this through?
The most significant issue raised by staff was the threat of litigation, especially if the city used OSD money for eminent domain proceedings to clear the spurious ownership claims that Pfendler and Al Bettman have made on the patch of shoulder at the Lafferty gate. To reduce the risk of this litigation threat from the neighbors, city officials offered that the city would stipulate to not spend funds on eminent domain. In explaining his vote, Kerns didn't even acknowledge this offer to compromise.
Several people who spoke, including Supervisor Mike Reilly, pointed out that litigation threats should not dictate OSD policy (it's like the police refusing to rescue a kidnapped child because the police might get hurt). Even if it took a full million dollars of OSD money to successfully defend Petaluma's EIR and right of way, that would result in a long-planned, much-needed spectacular park for perhaps a fifth of what the OSD would pay per acre for another property, IF they could find one. Kerns didn't respond to these points.
Kerns suggested the city re-apply under the matching grants program. There are several problems with this. The city would have to clear up the right of way issue before it saw any OSD money, and that could be the most significant expense facing the city, enough to stop the show. It would also allow the county and Pfendler to put more strings on the project (like limiting use to docent-led tours.) And, it just adds more delay, more city staff and volunteer effort, more places for Pfendler's lawyers to set their hooks.
I'm disappointed in Mike Kerns. It appeared he had his mind made up before any of the several dozen Lafferty Park supporters spoke, that he had developed a rationale for voting it down without triggering public outrage.
Mike Kerns can still choose. Will it be private preserves in a gated community? Or a mountain park for everyone? He can put his stamp prominently on something that will stand for centuries, if he exercises leadership, and delivers.
Help convince him. Call him at 565-2241. And join us on this month's Walk to the Park, June 16 (see www.laffertypark.org.)
(Bruce Hagen is a program manager at a Petaluma telecommunications company. He's past chairman of the Petaluma Recreation, Music and Parks Commission, serves on the city's Bicycle Advisory Committee, and is a member of the Sustainable Petaluma Network and Citizens for Lafferty Ranch.)