NOTE: This letter was sent to County Supervisors on the eve of their closed-session consideration of Petaluma's application to sell Lafferty's development rights to the Open Space District, with the proceeds to be used to open Lafferty Park. It is written on behalf of an unnamed "client," presumably Peter Pfendler. Butler and Perry have been known to represent Peter Pfendler and the so-called Sonoma Mountain Conservancy for the past several years.

See also Friends of Lafferty Park's point-by-point response, and our lampooning of this letter.
- Ed.

3333 Mendocino Avenue, Suite 200
Santa Rosa, California 95403

Stephen K. Butler

May 13, 2002

Members of the Board of Directors of the
Sonoma County Agricultural Preservation and
Open Space District
747 Mendocino Avenue
Santa Rosa, CA 95401

Re: Lafferty Ranch / Request for Purchase of Development Rights

Dear Mr. President and Directors of the District:

As you know, the City of Petaluma ("City") currently has on file with the District an application which requests that the District purchase certain development rights to the 270 acre ranch known as the Lafferty Ranch. It is our understanding that the Board of Directors will be discussing this application in closed session with District staff on May 14, 2002. We believe that the City's application is constrained by a number of legal and policy concerns. We would like to bring these to the attention of the District Board.

Our concerns are as follows:

  1. The Proposal Is Inconsistent with the Sonoma County General Plan.

The City has expressly tied its application to the City's proposal to the [sic] open the Lafferty Ranch for public hiking and trail purposes. In comment on the City's environmental impact report prepared in connection with the City's Lafferty project, PRMD found on August 28, 1998, that the City's proposed use of Lafferty Ranch was inconsistent with the Sonoma County General Plan. Specifically PRMD noted that "If the project is limited to trail use, it is not consistent with the General Plan because there are no trails designated in this vicinity."

District acquisitions must, of course, be found consistent with the County's General Plan. Since the City has chosen to link its application with its intention to open the Lafferty Ranch for public trail uses inconsistent with the Sonoma County General Plan, we do not believe that the Board may make the requisite finding of General Plan consistency needed to pursue this application.

President Mike Kerns & Members of the Board
May 13, 2002
Page 2

2. Lack of Adequate Environmental Document.

In the normal course of matters, the District utilizes a notice of exemption under CEQA in connection with its acquisition of conservation easements. However, in the context of the City's request, a notice of exemption would be legally inadequate.

The fact that the City has been actively pursuing its Lafferty project makes that project "reasonably foreseeable" for purposes under CEQA. Since the City's application specifically ties the proposed District acquisition to the opening of the Lafferty Ranch for public trail purposes, it is impossible for the District to ignore foreseeable impacts associated with the project and renders use of a notice of exemption infeasible. A negative declaration would be similarly inadequate since the City's certified EIR identifies unmitigated road safety and wildland fire impacts.

The only other environmental document which conceivably could be used in connection with the District acquisition is the City's own flawed, but certified, EIR. While the City has certified its EIR, it has taken no steps to approve the project fearing that approval could trigger litigation challenging the adequacy of the EIR. If the District were to utilize the City's EIR in connection with any acquisition, the District would be put in the awkward position of having to defend any litigation brought to challenge the sufficiency of the City's EIR. This, we believe, is an unacceptable shift of responsibility for the Lafferty EIR.

3. The Acquisition Could Result in Tort Exposure.

The Lafferty EIR documents a serious traffic safety problem on Sonoma Mountain Road. On average, there is one rollover a month on Sonoma Mountain Road. It is well documented that Sonoma Mountain Road is extremely dangerous, with an accident rate far in excess of state standards and a history of accidents predominantly involving younger drivers.

The County has twice gone on record saying that Sonoma Mountain Road must be fixed before any public facility can be responsibly opened at Lafferty. The County has done this to protect itself against the inevitable tort litigation which will be brought when a user of the Lafferty Ranch is injured or killed on Sonoma Mountain Road. In the event that the District were to pursue the City's application and provide funds to open the Lafferty Ranch without first insuring that needed road safety improvements were made, it is very possible that the District would be named in the inevitable tort litigation following someone's injury or death. It is a certainly that the County of Sonoma would be a named part in such litigation.

The City has made it clear that it does not intent to utilize any funds received by the District for purposes of fixing Sonoma Mountain Road. Rather, as indicated in the City's June 18, 2001, Resolution No. 2001-116NCS which accompanied its application, the City intends to

President Mike Kerns & Members of the Board
May 13, 2002
Page 3

utilize the funds for purposes of financing litigation and perhaps making on site improvements. It is apparent, and it has been stated on more than one occasion by City officials, that the City intends to ignore needed traffic safety improvements to Sonoma Mountain Road and simply open the park based on a statement of overriding considerations. This irresponsible and dangerous course of action by the City will expose both the District and the County to liability.

4. Gift of Public Funds.

The City proposes to sell "development rights" to the Lafferty Ranch apparently predicated on the underlying land use designations contained in the Sonoma County General Plan and zoning ordinance. The City posits that is has the right to develop the Lafferty Ranch for residential purposes. That right does not exist.

First, the only reason that the City could use the Lafferty Ranch for purposes inconsistent with the Sonoma County General Plan is that the property is owned by the City and subject to the City's general plan and zoning designations. Currently, the Lafferty Ranch is designated as a public watershed and, should the City ever approve the Lafferty project, the City general plan will be amended to establish Lafferty Ranch as a public park. These land use designations upon which an appraisal would be predicated contain no residential development rights.

Second, the City postulates that it might surplus the property and that thereafter it could be developed. This is wholly speculative. Before the property can be surplused, it would have to be offered to other public agencies which conceivably could utilize the Lafferty Ranch for alternative public purposes. It cannot be assumed that the property will simply be purchased by a developer and thereafter subjected to residential development.

Third, the City's own EIR establishes that there are unmitigated traffic safety impacts on Sonoma Mountain Road and unmitigated wildland fire impacts. The EIR also establishes that Lafferty is constrained by many other biological, topographic and geologic concerns which would, we believe, effectively preclude the subdivision of Lafferty. Any application for District funds predicated on subdivision would, of necessity, have to be valued in the context of all these limitations.

Based on the foregoing, any purported purchase of "development rights" baseed on the prospect of four residential building sites would be a gift of public funds since there is no way that an appraisal could justify a purchase at levels assumed by the City.

5. Inconsistency with Expenditure Plan.

The City proposes to use the funds received from any District acquisition for purposes of engaging in litigation with surrounding ranchers and farmers. Presumably, if funds are left over,

President Mike Kerns & Members of the Board
May 13, 2002
Page 4

they will be used as set forth in the City's application. The application states, in part, that "the grant funds will be used to complete the physical improvements on Lafferty Ranch that will serve to allow safe public access that will respect the uniqueness and quality of the site."

We believe that the proposed use of the funds for litigation and infrastructure inconsistent with the County's General Plan would be in contravention of the District's expenditure plan. Testing the limits of the District's ability to creatively utilize funds in the manner anticipated would, we believe, be inadvisable.

6. Bad Policy.

The City proposes a sham transaction based on the illusory development rights. The land in question is already in public ownership, is now protected and can easily be protected in the future by the Petaluma City Council.

Spending District funds in this context is bad policy. An editorial in the Press Democrat dated June 20, 2001, underscored the troublesome policy concerns underlying the City's request. That editorial stated, in part, as follows:

"What isn't easy to justify is the city's campaign to spend sales tax revenues to buy development rights to land already in public ownership.

Using that logic, the Sonoma County Open Space District would be compelled to acquire development rights to every city, regional and state park in the county -- applying the rationale that future decision-makers might be tempted to sell parkland to private developers.

If that ever becomes a realistic prospect, efforts to protect open space would be doomed. The Open Space District couldn't begin to raise the money necessary to purchase development rights to, say, Lucchesi Park and Putnam Regional Park.

Never mind that the district has other initiatives to pursue..."

We agree with this editorial statement and strongly believe that the pursuit of the proposed expenditure would be bad public policy.

7. Most Petalumans are Opposed to More Lafferty Expenditures.

In a poll conducted by Dresner, Wickers & Associates, Inc. conducted on August 7-12, 2001, among 402 residents of the City of Petaluma, it was overwhelmingly dmonstrated that the

President Mike Kerns & Members of the Board
May 13, 2002
Page 5

majority of Petalumans do not wish to continue to spend money in pursuit of a Lafferty Ranch park. That poll was conducted by a very reputable firm. This was the same firm that did polling in connection with County transportation measures. Since most Petalumans do not wish to spend their tax dollars to pursue a Lafferty park, the District should refrain from subsidizing the project. If any member of the Board would like a copy of the poll, our office would be most happy to provide one.

8. The City's Request Is Disingenuous.

The whole pretext of the City's request is disingenuous. The current council states that it is concerned that the Lafferty Ranch will, as a result of some future council action, fall into the hands of a developer and thereafter be residentially developed. This is ludicrous.

First, if the current City Council is truly interested in protecting the rare attributes of the Lafferty Ranch forever, it can simply convey an easement to the District for one dollar and eliminate all future risk. Second, I am certain that if the City were willing to place a forever wild easement on the Lafferty Ranch and preserve its unique biotic treasures without disturbing them through the City's proposed system of trails, no doubt money money in the private sector could be used to compenstate the City for any speculative "development rights" surrendered through a forever wild easement.

There is no reason to spend District money where, as here, all risk of future development can be forever extinguished by either the stroke of a pen or by utilizing private, instead of public, dollars.

9. The Unfortunate Truth.

The irresponsible position of the City was dramatically and recently illustrated. On Monday, April 22, 2002, the Press Democrat reported on a proposal to expand the Petaluma Village Premium Outlets. In the article, it was noted by City planners that even if traffic impacts associated with congestion at four intersections could not be entirely mitigated, the project could nevertheless be approved on the basis of a statement of overriding considerations. In response to the City planner's comments, ex-council member Keller said, "If the council were to do that, these guys ought to be lined up and shot."

The attitude illustrated by this quote is classic. It is permissible to terminate with prejudice a city council which might approve an urban project in the face of unmitigated traffic congestion, but apparently acceptable to ignore the life threatening condition of Sonoma Mountain Road so long as it furthers the City's blind rush to open the Lafferty Ranch for public access. This is unjustifiable and inexcusable. We respectfully request that the District Board refrain from becoming a willing participant in the City's misplaced plans.

President Mike Kerns & Members of the Board
May 13, 2002
Page 6

For all the reasons set forth above, we request that the District not pursue the City's pending application. There are far more deserving open space projects in the County which could use the District's attention and its dollars. Thank you for your consideration of these comments.

Very truly yours,
Stephen K. Butler

Leslie R Perry


c: client
Stephen Woodside
Andrea Mackenzie