Californians for Property Rights

CALIFORNIANS FOR PROPERTY RIGHTS
c/o Terrence D. Gossett, Director
193 Reef Point Road
Moss Beach, CA 94038
March 8, 2005

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

SUBJECT: MIDCOAST LCP UPDATE PROJECT RECOMMENDATIONS

Honorable Supervisors:

Thank you for your efforts toward updating the Local Coastal Program, and especially for your openness to critical input from the Midcoast public. The Planning Commission (PC) proposals before you are in part supportable; the comments below are restricted to those proposals with which Californians for Property Rights (CPR) has fundamental disagreements. This paper addresses only those topics you are scheduled to consider today.

TOPIC: RESIDENTIAL USES IN THE COSC DISTRICT

CPR RECOMMENDATION: DO NOT PROHIBIT SINGLE-FAMILY RESIDENCES IN THE COSC DISTRICT

It is difficult to interpret the Planning Commission’s recommendation as proposing anything other than a regulatory taking, that is, a prohibition on land that so significantly and unreasonably limits the use and benefit an owner can derive from his or her property, as to constitute a de facto taking. For that reason it is not surprising that County Planning Staff disagrees with the Planning Commission on this issue: a single-family residence on a COSC parcel provides a level of use, benefit and economic return that far exceeds other permitted uses. It is incontestable that depriving residential use in the COSC would cripple the market value of those properties.
Numerous County and local elected officials have expressed the opinion that the Burnham strip should be publicly-owned land. If the Supervisors were to adopt the PC recommendation, it is foreseeable that a government agency would be tempted to exercise eminent domain on the COSC properties, since they would have been drastically devalued by the prohibition against residential use. In that case, first a property’s market value is slashed by government regulation, then the government seizes the land at its reduced “market value.”
This is not a farfetched scenario. Granada Sanitary District (GSD), which is currently attempting to become a parks/community services special district, with powers of eminent domain, has directors who have long opposed any residential use in COSC lands. Public ownership and use of Burnham strip should be achieved only through government justly compensating willing sellers at full and fair market value.

TOPIC: RURAL RESIDENTIAL DESIGNATION

CPR RECOMMENDATION: DO NOT REDESIGNATE ANY AREAS IN MONTARA FROM RURAL RESIDENTIAL TO RURAL

The Local Coastal Program unambiguously entitles all properties located within the rural residential areas to domestic sewer and water utility connections, whether they currently have them or not, equally as they are available to any urban-designated property. LCP Policy 2.14a reads:

The County will confine urban level services provided by governmental agencies, special districts and public utilities to urban areasÖand rural residential areas as designated by the Local Coastal Program on March 25, 1986.

It should be emphasized that this provision applies to sewer as well as water connections. LCP Policy 2.22a reads:

bq. The County will requireÖthat sanitary sewer connections be limited to the urban areas and rural residential areas.

The rural residential is not a “poor cousin” to the urban with respect to access to utility connections: there is no more reason to exclude certain rural residential properties from utility service, than to exclude certain urban properties. Nor is there more reason to exclude one section of the rural residential than another. As the LCP Policies quoted above demonstrate, the service areas of both the water and sewer utilities include all of the urban and rural residential properties. All legal parcels, urban or rural residential, are entitled to equal and non-discriminatory access to the utilities.

Environmental Services Agency correspondence with you (February 14, 2005) states:

The implication of the Planning Commission’s recommendation is that LCP policy would preclude future extension of utility distribution lines into these areas.

In other words, the PC recommendation would prohibit utility connections to the targeted properties in perpetuity. The sole justification given for targeting those particular rural residential properties is because they do not have water connections. Yet that is only because there has been a moratorium on new water utility connections for the entire life of the LCP. So the PC is recommending that property owners, who have waited decades for a utility moratorium to be lifted, now be forever excluded from using those utilities. Properties too small to accommodate their own well and septic systems would be rendered unbuildable and virtually worthless, an indisputable example of a regulatory taking.
Where did the idea for such a discriminatory and punitive policy originate? The disturbing answer is that it was originally recommended to you by an official of the Montara Water & Sanitary District (MWSD). This should raise concerns with the Supervisors for a number of reasons. First, it demonstrates that some of the utility’s directors are politically opposed to providing utility connections to certain sections of the district’s service area. As Supervisor Church cautioned at your February 15th meeting, utility districts are not planning agencies, and to the degree they exercise their own planning agenda, they are usurping the planning authority of the Board of Supervisors. Further, it is a long-established principle of public utility law that a utility’s leadership not refuse, resist or avoid serving anyone within its service area. As the federal Supreme Court wrote in a landmark public utility case (Davies Warehouse Co. v. Brown, 1943), within its legislated service area a public utility ìÖis under an obligation to afford its facilities generally, upon demandÖ.î
Another cause for concern is that the MWSD official who originally recommended the rural residential redesignation lives in the immediate vicinity of the targeted properties, and could be perceived by the public as personally benefiting from the proposed policy, due to the decreased development potential in the area. It is important to preserve the integrity of local elective office, by ensuring against the appearance, however unfounded, that elected officials are personally benefiting from policies they originate.
Finally, there is a strong practical reason not to redesignate any of the rural residential lands. Refusing the targeted properties the possibility of a water connection would compel the owners to drill individual wells. The rural residential areas in question lie in higher elevations of the Montara and San Vicente Creek watersheds, in the vicinity of MWSD wells. These upland aquifers should be carefully husbanded, as they provide some of the most reliable sources of local water. Encouraging all rural residential properties to use a water utility connection, rather than a private well, provides the greatest environmental and water supply safeguards.

TOPIC: MERGER OF RURAL RESIDENTIAL AND RURAL PARCELS

CPR RECOMMENDATION: DO NOT MERGE ANY RURAL RESIDENTIAL OR RURAL PARCELS

As the above discussion indicates, there is no sound reason to arbitrarily victimize rural residential property owners who have waited patiently for the water hookup moratorium to be lifted, and who have every statutory right to a sewer connection upon demand at any time, regardless of the size of their legal parcels. In any case, the number of rural residential and rural properties fitting the criteria for lot consolidation is relatively few, so no plausible argument can be made that controlling Midcoast growth is dependent on the proposed merger policy.
CPR’s recommendation is that the County encourage property owners to voluntarily merge adjacent properties under common ownership, by emphasizing creative incentives that would benefit all concerned. For example, property owners who voluntarily merge adjacent parcels have the possibility of a larger residence, space for agricultural or ranching activities, outbuildings, recreational facilities, privacy landscaping, etc.
It should also be pointed out that the one-acre minimum estimated by Environmental Health for a property to supply its own water and septic needs is based on an on-site household sewage dispersal “technology” that is widely considered backward and outdated, as the traditional septic tank and leach field system is both spatially wasteful and environmentally suspect. For this reason rural residential and rural properties should not be required to consolidate to a one-acre minimum, because that estimate of minimum physical size will inevitably decrease as San Mateo County eventually adopts cleaner and more compact on-site sewage disposal systems in the future. Septic-and-leach systems should not be forced upon the public and environment in the name of controlling growth and development, when superior on-site sanitary waste disposal systems are available.

SUMMARY: COSC RESIDENTIAL PROHIBITIONS, RURAL RESIDENTIAL AREA REDESIGNATIONS, AND RURAL RESIDENTIAL/RURAL FORCED LOT MERGERS ALL CONSTITUTE REGULATORY TAKINGS, AND SHOULD BE REJECTED BY THE SUPERVISORS AS UNREASONABLE AND UNNECESSARY.

Thank you for your willingness to accept critical input from the Midcoast public, and for your careful consideration of CPR’s recommendations.

Respectfully submitted,

Terrence D.Gossett forCalifornians for Property Rights