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:

  1. 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.) PRMD’s 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.

    Gaiser’s 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.
  2. Lack of Adequate Documentation: The project is the city’s, not the county’s. 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 Perry’s actions to date. The city’s EIR is ironclad and was developed under the threat of potential litigation. It will ultimately withstand challenge.

    If the county’s 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 Petaluma’s OSD application, it will be clear to the public who is the victim, and who is the attacker here.

    Charging the city’s 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 EIR’s 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 county’s action. Now who would do that, and why would they want to do that?
  3. 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 city’s 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 city’s 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.
  4. 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.
  5. 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.
  6. Bad Policy: “Sham transaction?” “Illusory development rights?” Look who’s talking about dishonest motivation and actions. Such charges say volumes about their makers and nothing about the reality of the city’s 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.
  7. Most Petalumans Opposed to Lafferty Expenditures: Again, Butler and Perry’s statements are misleading. Those polled said they did not want to spend upwards of $2 million on the road to Lafferty when the city’s 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.
  8. City’s 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.
  9. 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 citizen’s 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 Perry’s 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 Park’s Deal of the Decade document outlining the top reasons for approving the OSD application.