Californians for Property Rights

While considering a developement permit on the urban side of the peninsula, the San Mateo County Planning Commission has put in motion a change in the Resource Management Zoning for the rest of the county (aside from the Coastal Zone). Californians for Property Rights believes that this proposed change in zoning should not be “attached” to this development on the bay side of the county when so many of the 1600 parcels that would be affected are located in the rural that extends from Skyline Blvd. westward to the Coastal Zone boundary.

Below is a recap of some of the issues. You can read CPR’s letters in their entirity at the end of the article.

It appears that the proposed amendment to the RM District regulations has changed since the last meeting of the SMC Planning Commissioners on July 11, 2007. What is the basis for these changes, and how does the SMC Planning Commission believe that the modified language alters the scope or meaning of the proposed addition of Section 6317.A to the RM District regulations? What events, consequences, or applications of the original language is sought to be prevented or corrected by the newly modified version?

Civil Code section 815.3, subdivision (b), explicitly restricts the authority of local governments to acquire conservation easements. The first sentence of section 815.3, subdivision (b), plainly requires that any such easement be “voluntarily conveyed.” The second sentence bolsters this command by prohibiting any local governmental entity from conditioning the issuance of an entitlement upon the applicant granting a conservation easement.

Why is this Commission slipping an amendment into the Zoning Regulations that will affect 1600 RM zoned parcels in perpetuity as part of an individual application?

What array of impacts from this proposed amendment will there be to the 1600 RM zoned property owners?

What problem(s) is the proposed county wide amendment supposed to correct?

What new problem(s) will the proposed county wide amendment create?

Why does RM zoning need “conform” with any RM-CZ rationale or processes? Why should Non-Coastal zones NOW conform to Coastal Zone restrictions and conditions?

What coordination has the County done prior to considering this amendment (tax rate with assessor, Controller’s office, Public Works, Parks and Recreation, Legal, etc)

What is the overall master plan or vision or process for public review for making the proposed County wide changes to the Zoning Regulations?

If RM-CZ is the goal for properties currently zoned RM, What is the history and data on the uses and abuses of conservation easements for RM-CZ zoned lands? What problems or issues need be considered before submitting this county wide proposal that will affect 1600 properties in perpetuity?

What resources has, and will, this County commit to the monitoring and maintenance of the proposed conservation easements in perpetuity?

September 4 Letter to Board of Supervisors

Californians for Property Rights, Box 282, Moss Beach, CA 94038
Phone: 650-563-9508 Email: nina@c4pr.org
Website: www.californiansforpropertyrights.org or www.c4pr.org
“Property Rights are Civil Rights”

September 4, 2007

SAN MATEO COUNTY BOARD OF SUPERVISORS
Hall of Justice and Records
400 County Center
Redwood City, CA 94063

SUBJECT: File No: PLN2007-00203, APN 041-101-290 and Countywide Proposed modification to Section 6317.A Conservation Open Space Easement For Public Hearing with SMC BOS on 11 September 2007

Honorable Supervisors:

On June 25th and July 10th, Californians for Property Rights (CPR) provided the SMC Planning Commissioners with written comments on the above-referenced subject. Included with those written comments were also several questions seeking to clarify the intent, purpose, scope, implications, and possible implementation of the proposed enactment of Section 6317.A Conservation Open Space Easement. We await your consideration and response to those matters. Please see attachments.

Furthermore, it appears that the proposed amendment to the RM District regulations has changed since the last meeting of the SMC Planning Commissioners on July 11, 2007. What is the basis for these changes, and how does the SMC Planning Commission believe that the modified language alters the scope or meaning of the proposed addition of Section 6317.A to the RM District regulations? What events, consequences, or applications of the original language is sought to be prevented or corrected by the newly modified version?

Furthermore, in this public notice for the 11 September meeting there is no closing quotation mark subsequent to the initial quotation mark prior to “SECTION 6317.A…” Thus, it is NOT clear to the public what the extent or meaning is of the proposed wording for Section 6317.A. As a matter of the public record, who approved the heavily modified wording for this agenda item AND where is the end of the wording for the proposed amendment? How can the SMC BOS proceed with this meeting with a flawed Public Notice affecting over 1600 parcels in SMC? What wording is actually before this Board?

If this Board does proceed with this matter, CPR requests that the SMC Planning Commission review and respond to California Civil Code Section 815 et seq. which pertains to the ability of local governmental entities to acquire conservation easements. Civil Code section 815.2, subdivision (a), defines “conservation easement” to mean an interest in land that is “voluntarily created.” (Emphasis added.) Thus, the proposed addition to the RM District regulations in Section 6317.A requiring that a permit applicant dedicate a conservation easement to the County is in direct conflict with the statutory requirement that the dedication of a conservation easement be voluntary.

Moreover, Civil Code section 815.3, subdivision (b), explicitly restricts the authority of local governments to acquire conservation easements. The first sentence of section 815.3, subdivision (b), plainly requires that any such easement be “voluntarily conveyed.” The second sentence bolsters this command by prohibiting any local governmental entity from conditioning the issuance of an entitlement upon the applicant granting a conservation easement. Proposed Section 6317.A violates this prohibition against requiring the involuntary dedication of a conservation easement as a condition for issuing a permit. In this regard, Section 6317.A to the RM District regulations appears to be no more than a simple land-use exaction mechanism in direct conflict with the holdings of the United States Supreme Court in Nollan v. California Coastal Commission (1987) 483 U.S. 825 and Dolan v. City of Tigard (1994) 512 U.S. 374.

For your reference, Civil Code section 815.3 provides, in pertinent part:

Only the following entities or organizations may acquire and
hold conservation easements … [¶] (b) The state or any city, county, city and county, district, or other state or local governmental entity, if otherwise authorized to acquire and hold title to real property and if the conservation easement is voluntarily conveyed. No local governmental entity may condition the issuance of an entitlement for use on the applicant’s granting of a conservation easement pursuant to this chapter.
(Civ. Code, § 815.3(b).)

Furthermore, clarification on matters of conservation open space easements can be found in Rev and Tax Code Sections 421-430, Gov Code Section 51075, and Public Resource code 5096.520 as appropriate.

A proper public forum on this issue to provide answers to all the questions before your Board appears warranted prior to any decision.

Your consideration of these matters is appreciated,
Respectfully Submitted,…For the Public Record,

Terry Gossett
CPR Director

July 10 Letter to the Planning Commission 10 July 2007
Planning Commission
County Government Center
455 County Center
2nd Floor, Mail Drop PLN122
Redwood City, Ca, 94063

Honorable Commissioners,

We respectfully request that this letter be put into the public record regarding the Planning Commission Meeting #1464 Agenda Item 8-4 regarding subject of “Section 6317A Conservation Open Space Easement” , and regarding file # PLN 2007-00203, Owners Ticonderoga Partners, LLP, and proposal for all RM zoned property county wide.

Californians for Property Rights is a non-profit, educational, tax exempt California corporation. We do not support the proposed county wide amendment to the San Mateo County Zoning Regulations for the following reasons.

Why is this Commission slipping an amendment into the Zoning Regulations that will affect 1600 RM zoned parcels in perpetuity as part of an individual application?

The 106 page staff report only includes 7 pages on the proposed amendment — one page for the proposal, one page for recommendation, one page for reference to the map, one page for the map indicating 1600 parcels impossible to discern, and ONLY 3 pages for rationale. That is hardly an adequate analysis for something affecting 1600 parcels. Note that the remaining 99 pages is devoted to the detail for ONE RM zoned parcel, compare that with the impact to 1600 parcels that vary tremendously, and in perpetuity. If those 1600 parcels got the same attention as Ticonderoga we would see 1600×99 pages of detail (158,400 pages) instead of just SEVEN ages in this proposal.

What problem(s) is the proposed county wide amendment supposed to correct?

What new problem(s) will the proposed county wide amendment create?

Why does RM zoning need “conform” with any RM-CZ rationale or processes? Why should Non-Coastal zones NOW conform to Coastal Zone restrictions and conditions?

What coordination has the County done prior to considering this amendment (tax rate with assessor, Controller’s office, Public Works, Parks and Recreation, Legal, etc)

What is the overall master plan or vision or process for public review for making the proposed County wide changes to the Zoning Regulations?

If RM-CZ is the goal for properties currently zoned RM, What is the history and data on the uses and abuses of conservation easements for RM-CZ zoned lands? What problems or issues need be considered before submitting this county wide proposal that will affect 1600 properties in perpetuity?

What array of impacts from this proposed amendment will there be to the 1600 RM zoned property owners? (property valuations before and after any conservation easements, determination of said tax impact to the satisfaction of the IRS, value of loss of use of an indeterminate value of property in perpetuity without compensation)

If property owners submit to an involuntary conservation easement, who determines the amount of land in the easement, and who determines the value and tax basis? Will the property owner have NO voice at all? What of the appeal process? What if there is a subsequent well or septic failure that may require encroachment into the easement? What County processes need to be developed?

Many tax aspects of the proposed amendment for the conservation easement are unclear. Who is liable (County or property owner) in the event that the IRS challenges the basis for valuation and tax treatment of said conservation easements.

What happens to subsurface mineral rights? How will those be valued for the present and how will future losses be forecast in perpetuity? A conservation easement is NOT consistent with extraction of oil or gas or water or for locating septic fields.

What if a property is zoned RM and has a TPZ contract? How will timber be harvested once a conservation easement is mandated. How will that loss be valued in perpetuity?

An example that might need clarification as to whether property would be subject to a conservation easement might be illustrated as follows: If my neighbor and I want to exchange a piece of property so he can build a driveway that won’t be so steep, and he is going to give me a piece of his parcel in return, will he and I both need to grant a conservation easement to the county?

To many property owners the proposed amendment could be viewed as a regulatory taking by the county of San Mateo. The county is proposing to downsize the usable portion of the original property and reduce its value while paying nothing to the property owner. It appears that the County will also then determine the “fair” value of the “rezoned” property AND that the property owner must pay taxes on whatever it is that the County says is due without any consideration of market factors.

Regarding data, processes, and responsibilities for the County of San Mateo—-

How many RM zoned parcels are owned by the county of San Mateo?

How does, and how will, the County monitor those parcels?

How many RM/CZ parcels have conservation easements?
Is the County in compliance with the California Open Space Land Act standards and allowed uses on their parcels?

What resources has, and will, this County commit to the monitoring and maintenance of the proposed conservation easements in perpetuity?

San Mateo County should immediately provide the standards, allowed uses, valuation methodologies, impacts, and penalties associated with the proposed conservation easements to all affected property owners.

SUMMARY & RECOMMENDATIONS

To many property owners the proposed amendment might be viewed as a regulatory taking by the county of San Mateo. The county is proposing to involuntarily downsize the usable portion of the original property and reduce its value while paying nothing to the property owner in return. Many other possible impacts from the proposed action have clearly not been thought through, but one thing is abundantly clear—-the property owner will bear the brunt of the impacts whatever they turn out to be.

Before taking a position on a county wide amendment to the Zoning Regulations it would be prudent to gather all relevant data and facts, coordinate with the appropriate County departments, and provide for considerable public input from the 1600 affected properties. It appears that none of this is occurring. In fact the opposite is being done with very little provision for input or consideration from property owners.

Do NOT expand the individual agenda item PLN 2007-00203 to a County wide amendment that will affect 1600 RM zoned properties in San Mateo County.

In the event that this Planning Commission does proceed with their planned amendment, as a minimum, please provide answers to the questions posed in this letter that affect the 1600 property owners with properties zoned RM in San Mateo county. Please provide a forum worthy of the import of the action you are proposing.

Respectfully submitted for your consideration,

Terrence D Gossett
President, CPR Box 282 Moss Beach, CA, 94038