Response to Butler/Perry brief of
May 13, 2002 to
Sonoma County Board of Supervisors
By Matt Maguire and Bruce Hagen
May 14, 2002 (Revised 5:55 a.m.)
It is curious to note that the above
referenced letter does not refer to who the client is that is
being representing by this letter. That raises the question of
their legal standing. But assuming that everyone has the right to
give input on public policies, the following comments are offered
in response:
- County General Plan Inconsistency: The county has gone on
record saying Lafferty Ranch is entirely consistent with
its General Plan as Lafferty or its immediate surrounding
areas have been designated for a county regional park in
the GP since 1964. It is shown on county GP maps
designating park locations. (See also PRMD letter by
Richard Lehtinen dated June 19th, 1997, to EIR consultant
Leonard Charles stating consistency.) PRMDs Robert
Gaiser claimed on August 25, 1997 that Lafferty Park is
inconsistent with the GP by claiming Lafferty was a
trail, not a park, because it did not have
the amenities found in full-use regional parks. The lack
of swing sets does not make a park a trail.
Gaisers narrow, semantic interpretation of
inconsistency was refuted in the Lafferty Final EIR. The
county GP does not state what type of park it was
designating, so any park meets the requirement. It is not
for Butler and Perry to reinterpret county documents to
suit there ends. If one were to try point to where in the
GP it says the Lafferty plan is inconsistent with the GP,
one would not find it.
- Lack of Adequate Documentation: The project is the citys,
not the countys. Issues with the EIR or project
should be taken up with the proponent. This is a bullying
threat of litigation, consistent with the SMC and Butler
and Perrys actions to date. The citys EIR is
ironclad and was developed under the threat of potential
litigation. It will ultimately withstand challenge.
If the countys actions do trigger CEQA, what is to
keep the county from making findings of negative
declarations, mitigated negative declarations, or even
find that the project provides overriding benefits to the
public? The EIR documentation is more than adequate to
sustain such findings. If Butler and Perry want to
challenge the county if it supports Petalumas OSD
application, it will be clear to the public who is the
victim, and who is the attacker here.
Charging the citys EIR as flawed is
mere supposition, projection and fear mongering. Saying
that the city fears a legal challenge because of the
adequacy of the EIR is a falsehood. The truth is that the
city has expended more than its available budget, which
has been the intent of Butler and Perry and the Sonoma
Mountain Conservancy, and has no available funds to
defend its EIR at this time. The EIR is unprecedented in
its thoroughness and conservative stance, according to
Bay Area planning experts. If the county uses the EIR in
its decision making, it is reasonable to expect the city
to defend the EIRs adequacy, as it is the lead
agency.
Buying the development rights is a lesser position for
the OSD than for instance that taken with the purchase of
Paulin Creek, but the value to the public of this project
far outweighs the threatened risks that Butler and Perry
are trying to impose.
As recently as 10/16/01, Perry publicly claimed he had
had no discussion of suing the city for any reason with
his clients. We see that is disingenuous at best. Of
course, the theoretical risk to the county would come
only if someone wanted to challenge the countys
action. Now who would do that, and why would they want to
do that?
- Acquisition Could Result in Tort Exposure: The claim of
one rollover a month on Sonoma Mountain Road on average
is an outrageous exaggeration, but the statement points
up the existing problem, regardless of Lafferty, which
the county has done little or nothing to correct. In
fact, the county has underscored the severity of the
problem with its statements in response to the EIR and
the city, citing risks perceived to be caused by the
project, which has increased its own liability to anyone
who may make a claim based on existing conditions. The
tort exposure is there now and it is significant. The
profile for Lafferty users is contrary to the type of
drivers creating the existing problem.
The city and its officials have long stated, both
publicly and privately, that they are willing to
participate in road improvements comparable with existing
road policies applied to similar facilities elsewhere in
the county. The claim that the city does not intend to
utilize any funds for fixing the road is an outright lie.
The citys intention has been stated during the EIR
hearings, and numerous times in meetings with county
officials, including Supervisors Mike Kerns, Tim Smith,
Mike Reilly and Mike Cale.
Again, the claim that the city intends to utilize the OSD
funds for litigation is another falsehood. The city has
bent over backwards to address every real issue arising
from the Lafferty Project, and wishes to avoid litigation
wherever possible. Butler and Perry are purposefully
trying to mislead with the intent of creating fear of
litigation in anyone who gets involved in opening
Lafferty. The city recognizes that specious claims of
lack of full access to Lafferty might have to be resolved
in court, but that does not equate to a desire on the
citys part for litigation
The statement that the city intends to open Lafferty
based only on a statement of overriding considerations is
also not true. Again, it has been publicly stated that
the city will partake in its fair share of road
improvements, per existing practices and policies.
- Gift of Public Funds: The arguments are false. First,
there is nothing to say the city cannot change its own GP
designation and allow development, should a majority of
councilmembers see fit to sell it.
Secondly, if the city were to sell Lafferty, it cannot be
ruled out that it would be bought by a developer who
would want to maximize the development potential. Neither
Butler nor Perry are certified appraisers. Their claim
that they know what an appraisal would value the rights
at is pure speculation. Their conclusion that any sale is
a gift is based on their questionable presumption is not
supportable by fact.
However, if too many constraints on public uses are
forced on Lafferty, other public agencies may not be able
or willing to purchase it in the event of sale. Private
use and development is likely to be the only viable
alternative.
Thirdly, here Butler and Perry are setting the stage for
threat of suit to any future owners other than their
clients, with the intention of driving down the value of
the development rights, as part of their strategy to stop
Lafferty from being open to the public by any means
necessary. The actual conditions on Lafferty are not
significantly different than properties all over Sonoma
Mountain, which have been increasing in value steadily
over the years. Lafferty could, sadly, be fully developed
by a private party, as we have seen elsewhere on Sonoma
Mountain.
Recently, the city of Sonoma did try to sell a city-owned
hillside open space parcel for development, which was
only prevented by a citizen referendum. It does happen.
However, in this case, since the city is only proposing
to sell the development rights and not the property
outright, it does not trigger the surplussing
requirement, where the property must be offered to other
public agencies. Of course, if other agencies wanted to
vie for them, the city would be willing to consider all
offers.
The only actual gift of funds that could occur would be
if the city were to deed the rights to another agency, or
sell them for $1 or similar amount. That would be
tantamount to giving away a public asset without
receiving value in return.
- Inconsistency with Expenditure Plan: The statement that
the city proposes to engage in litigation is another
misleading projection on the part of Butler and Perry.
There is no basis in fact for this statement. The city
has avoided, at great expense to itself, litigation. The
city will defend itself if necessary, and all public
servants should be very wary of anyone who goes to such
extremes to fight a modest project such as Lafferty as we
see in Butler and Perry.
Contrary to the claim that Lafferty is inconsistent with
the expenditure plan, it meets the stated goals of three
of the four categories for land acquisition, all but
Agriculture. In fact, the district has changed its own
rules and policies to suit individual situations that
have arisen over the years. It was requested that the OSD
make a fee purchase Moon Ranch in 1996, and the district
said it could not buy land in fee for parks. That is no
longer true. In addition, the Santa Rosa Greenway was
recently approved for infrastructure improvements using
OSD funds for the first time. And the Paulin Creek deal
was committed to by the district before doing an
appraisal, which is contrary to OSD policy. This
inconsistent treatment is not well received by the public.
- Bad Policy: Sham transaction? Illusory
development rights? Look whos talking about
dishonest motivation and actions. Such charges say
volumes about their makers and nothing about the reality
of the citys actions.
If the goal was only to protect Lafferty, the statements
by Butler and Perry might be true. However, the city,
over many prior and current councils, has said over and
over the goal is to open Lafferty to countywide public
access. That takes funding.
The PD editorial quoted uses false logic to criticize the
project. There is no other project as consistent with the
county GP for so many years, that has the resources,
views and recreational value, or that will be available
to so many people geographically and is already in public
ownership, as Lafferty. In fact, more recent PD
editorials have rightly laid the responsibility for the
ugly acrimony, expenses and delays in opening Lafferty at
the feet of Peter Pfendler and the SMC.
- Most Petalumans Opposed to Lafferty Expenditures: Again,
Butler and Perrys statements are misleading. Those
polled said they did not want to spend upwards of $2
million on the road to Lafferty when the citys
roads are in bad shape. None of us do. That is hardly an
indication of lack of support for the application. This
is a classic push poll, designed and funded
by the opponents of Lafferty. A quick reading of the
questions reveal the extreme bias of the poll. The only
legitimate poll taken to date was conducted by the PD in
1996, and it showed a three to one ratio of support for
keeping and opening Lafferty.
- Citys Request is Disingenuous: Nonsense. The city
has conducted itself in a consistently honorable fashion,
in the face of outrageous attacks and a determined
disinformation campaign. Again, the goal is to provide
open space access in the form of Lafferty Park to the
public, which is severely lacking in the south county.
South County suffers the largest per capita deficit in
accessible open space in all of Sonoma.
- The Unfortunate Truth: Comments by a former councilmember
regarding another development are pure rhetoric,
something that Butler and Perry should appreciate, given
their penchants for same. Butler and Perry are comparing
the conversion of an overgrazed cattle ranch into a
superb public amenity with a huge commercial development
that would saddle the city with traffic impacts that
would literally gridlock the city without recourse. Such
comparisons are ridiculous. The image of false victimhood
has been a consistent theme projected by Butler and Perry
over the years.
The city has done anything but take a blind rush to open
Lafferty. The plan was developed over several years by a
citizens committee. The EIR on this passive use
recreational project has taken over four years and has
gone through three circulations in an attempt to answer
all real issues. The city has spent over $700,000 to
include the public in the approval process and to insure
against future legal challenge. This is no blind rush.
Steve Butler and Les Perry have been employed by Peter
Pfendler and the Sonoma Mountain Conservancy to stymie all
efforts to open Lafferty Park, and this latest brief is just the
most recent example of what the City of Petaluma has had to deal
with. They have threatened that if this application is approved,
it will cause the OSD to fail to be renewed by the voters. The
insinuation is that their wealthy employers will wage a hostile
campaign against renewal, presumably using Butler and Perrys
well-honed mercenary skills at warping public policy. This could
not be further from the truth. The vast majority of voters in
South County will remember if Lafferty is not allowed to go
forward. It is they who hold the future of the OSD in their
hands, not the few who live on Sonoma Mountain. And consider this:
no Supervisor will sit idly by when someone wages a campaign
based on lies against renewal. The political context does not
exist to allow that, no matter how hostile a Supervisor may be to
Lafferty today.
Please refer to Friends of Lafferty Parks Deal of the Decade document outlining the
top reasons for approving the OSD application.