Californians for Property Rights

CALIFORNIANS FOR PROPERTY RIGHTS P. O. Box 282 Moss Beach, CA 94038

March 29, 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:

Please find below the recommendations of Californians for Property Rights (CPR) for the topics you have scheduled today. Our comments cover two topics: the Midcoast growth rate limit, especially as it is influenced by utility infrastructure, and LCP implementation issues.
CPR continues to advocate an integrative, ‘big picture’ approach to the LCP Update Project, that considers individual topics not in isolation, but as elements of a holistic vision for the MidCoast. For that reason, as the Supervisors finish up a run-through of individual topics today, CPR’s comments begin to intertwine related issues as necessary to achieve an overall understanding.

Topic: Midcoast Annual Growth Rate Limit

CPR Recommendation: Adopt The ‘Historic Growth Rate Alternative,’ Amended To Average 52 Units Per Year.

Planning Staff recommended either the historic growth rate alternative, which would codify the average rate of growth over the last 25 years, or a 30-year buildout alternative that would match the buildout timetable anticipated by the 1980 LCP. CPR recommends the former, because it does no more than ensure that the actual rate of growth, which is moderate, will not accelerate over time.
CPR further recommends, because the historic growth rate is a 25-year average, that a growth limit based on the historic rate also be an average. In other words, if the 52-unit limit is not reached in a given year, for example due to an economic downturn or local emergency, the shortfall should be ‘banked’ for potential use in a following year. A ‘use it or lose it’ policy has two proven negative effects: it pushes property owners to rush to build when they otherwise might wait; and it encourages obstructionists to unnecessarily delay the permitting process, running out the clock on applications in a given year. Language for the historic growth rate alternative should therefore be modified to: *“Lower the growth rate limit to an average of 52 units per year.”*

The Planning Commission (PC) is recommending a less moderate alternative, the 1% growth rate adopted by Half Moon Bay voters in 1998. Whereas Half Moon Bay was experiencing an unsustainable rate of growth through the ‘90’s, which resulted in a voter backlash, the MidCoast has evolved naturally to an acceptable growth rate that the LCP can now institute as policy.
Arguments in favor of a slowing of the MidCoast’s historic growth rate lack substance. For example, the PC recommendation on page 3 of the March 14th Environmental Services Agency correspondence inadvertently reveals the following inconsistency:

“In recognition of the existing utility and transportation infrastructure constraints, the Planning Commission recommends that your Board lower the growth rate to 1%...[and] delete the provision which permits raising the limit when sufficient capacity exists.” (emphasis added)

This self-contradictory recommendation can be fairly paraphrased thus:

The Midcoast needs a 1% growth rate because the infrastructure can’t handle more; but even if it could, the growth rate should still be only 1%.

In plain English, the Planning Commission advocates a growth rate of 1%, regardless of the infrastructure’s carrying capacity. It should be asked why that isn’t openly stated to you: why the questionable logic that first squarely bases a growth rate recommendation on infrastructure, then dismisses it as an irrelevant factor? It might be because an argument based on alleged physical limits, that says we can’t grow, is much more persuasive and conclusive than an ideological argument that says we shouldn’t grow.
Unfortunately, the PC is not alone among public officials in appearing to cloak an undeclared agenda behind references to ‘infrastructure constraints.’ Today you will hear a report from directors of the Montara Water & Sanitary District (MWSD), who have urged the Supervisors to reduce the buildout numbers by redesignating the rural residential, while forcing urban and rural residential lot mergers, allegedly because the utility district is unable to supply sufficient water to its service area. On the contrary, there is a mountain of evidence, supplied by MWSD itself, that ample water resources exist to serve a reasonable growth rate and buildout. It would seem that the shortage is not in water, but in the political will of MWSD to supply that water.
MWSD’s 2004 master plan estimates that the district would need to increase its water capacity by slightly more than 100 million gallons per year in order to serve an eventual buildout greater than that the Supervisors are contemplating. Yet in the February 23rd, 2005 Half Moon Bay Review , MWSD revealed that one of its Alta Vista test wells pumps 150 gallons per minute without drawing down the aquifer. That well alone can produce almost 80 million gallons per year. In addition, the master plan reports that over 27 million gallons of MWSD water are lost every year due to leaky transmission pipes.

Figures supplied by MWSD tell the story: bringing one test well into production, while replacing leaking district pipes, would add over 100 million gallons of water per year, an amount sufficient to serve approximately 3500 residents.
The 2004 master plan indicates many different measures MWSD could take to increase water supply. Other test wells are producing handsomely. Storage capacity and filtration equipment should be dramatically improved. Tie-ins to NCCWD and/or CCWD can be established for emergency purposes. Clearly, the MidCoast’s water ‘shortage’ can be quickly and permanently solved, if the solution is not obstructed from within MWSD’s directorship.

A reasonable growth rate and buildout number should be based on a balanced vision for the MidCoast. The Supervisors have the opportunity to ensure moderate and controlled growth that provides for public health, safety and welfare, while safeguarding essential utility infrastructure from being subjected to an undeclared ideological agenda.

Topic: LCP Tasks Assigned To The County

The March 14th Environmental Services Agency correspondence with you on this topic mentions areas where the County has either met, or partially met, LCP tasks assigned to the County. One crucial unmet LCP implementation task remains, however, which is not mentioned in the Planning Commission recommendations. After addressing the importance of meeting that LCP task, CPR will make a second recommendation on a related LCP implementation issue.

1st Cpr Recommendation: Redraft The Boundaries Of Montara Water & Sanitary District And Granada Sanitary District (Gsd), As Required By Lcp Policy 2.14b.

Language describing this implementation task should be added to the PC recommendations along the following lines:

f.Utility District Boundaries

bq.Staff shall promptly redraft the boundaries of Midcoast utility districts to correspond to the boundaries of urban areas and rural residential areas.

The relevant unmet LCP task assigned to the County is LCP Policy 2.14b, which reads:

bq. The County will redraft the boundaries of special districts
or public utilities providing urban level services to correspond
to the boundaries of urban areasÖand rural residential areas
established by the Local Coastal Program.

In contradiction to this Policy, recent Environmental Services Agency correspondence (January 27, 2005) with you includes a map (Attachment C, p.11) showing MWSD and GSD boundaries at their pre-LCP, pre-1980 limits, which included thousands of acres of rural lands within their potential service areas. The rural lands have been excluded from the possibility of utility service since the urban/rural boundary was created for the 1980 LCP.
The LCP requirement that MWSDís and GSDís boundaries be redrafted to correspond to their LCP-legislated service areas (urban and rural residential, but not rural areas) is intended to bring Midcoast utility providers into compliance with pre-existing State special district law (California Government Code Section 54900 et seq.). State special district law has long required that change-of-boundary statements be filed in a timely fashion with the State Board of Equalization and County Controller, to ensure that a special districtís taxation and electoral jurisdiction is adjusted to exactly correspond to its service area, whenever that service area is legislatively modified. Failure, over a 25-year period, to implement LCP Policy 2.14b and comply with California Government Code Section 54900 et seq., has resulted in numerous ongoing taxation and electoral anomalies:

• Information from the State and County indicates that MWSD and GSD
  receive a portion of the general (1%) tax from rural properties outside their service area, that is, they receive general taxes from properties they are legislatively barred from serving. This misallocation has deprived other special districts (school, fire, harbor, library, junior and community colleges, etc.) a portion of their rightful general tax revenue from 1980 to the present.
• A similar discrepancy arises with respect to special taxes, such as the
  MWSD bond tax. Because the State Board of Equalization and County
  Controller have never received change-of-boundary statements, from which those agencies can make MWSD’s and GSD’s tax jurisdictions coterminous with their service areas, these special districts are able to collect special taxes from properties they have been prohibited from serving since 1980. In the case of the MWSD bond tax, rural property owners are levied an onerous 25-year-long bond tax to finance purchase and maintenance of a water system they are prohibited in perpetuity from using.
• Failure to redraft MWSD’s and GSD’s boundaries to correspond to their
  service areas has also resulted in electoral anomalies. For example, since 1980 MWSD and GSD elected officials have not been required to live within their respective district’s service area. For this reason a rural Midcoast resident, who is not a customer of the utility, can exercise political and organizational control of the special district without directly experiencing the day-to-day practical consequences of the utility policies he or she implements. The rights of the property owners and residents within a special utility district’s service area, to be represented by elected officials who are themselves customers of that utility, are clearly violated by the failure to rectify a special district’s electoral jurisdiction with its legislated service area. * Another corrosive electoral effect of the boundary discrepancies is that rural Midcoast residents who live outside MWSD’s and GSD’s service areas are yet able to vote in those special districts’ elections. This results in the disenfranchisement of the voters residing within the utilities’ service areas, as their votes are diluted by the rural vote. Undeniably, residents within a utility’s service area should be the sole electors deciding special districtelections, both for elective positions and ballot measures.

  The Supervisors are in the best position to take action to correct the utility district boundary discrepancies, which continue to cause mounting damage to our taxation and electoral systems, other MidCoast special districts, and the general public. Indeed, it would appear that it is incumbent upon you to direct the timely correction of this problem. The LCP explicitly requires and grants authority to the County to redraft the boundaries, and the Supervisors have broad discretion to direct the appropriate County agencies to do so. Additionally, California Government Code 54900 et seq. authorizes the executive officer of San Mateo County LAFCo to file the change-of-boundary statements with the State Board of Equalization and County Controller, rectifying our Midcoast special utility districts’ tax and electoral jurisdictions with their long-established, LCP-legislated service areas. Supervisors now serving on LAFCo are ideally positioned to expedite this long-overdue process.

  2ND CPR RECOMMENDATION: IMPLEMENT LCP POLICIES 2.23, 11.6, 11.9 ET AL, CONVERTING THE OCEANFRONT MONTARA TREATMENT PLANT PROPERTY, ADJACENT TO THE POINT MONTARA LIGHTHOUSE, TO A PUBLIC RECREATION SITE WITH AN OPEN SPACE DESIGNATION.

  Policies within a number of LCP Components acknowledge that use of the Montara Treatment Plant property as a sewage treatment facility does not comply with the intent of the Coastal Act, and that its use should be changed to public recreation whenever possible. That date has long passed.
  This document will examine the property’s noncompliance with the following LCP Components: Public Works, Sensitive Habitats, Visual Resources, Hazards, Shoreline Access, and Recreation/Visitor-Serving Facilities. CPR will also propose and describe potential public uses for the property.
  The 2-acre property was occupied by the military through World War II as part of the region’s coastal defense system. Today it has a significant historic building, used by MWSD for offices, as well as a pumping station and a concrete holding tank for winter storm overflow.

• LCP COMPONENT: PUBLIC WORKS

LCP Policy 2.23a requires the Montara Treatment Plant property to be redesignated to open space if it is not used as a sewage treatment facility. Policy

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2.23b requires that the public have lateral blufftop access on the seaward side of the property, which has never occurred.
Not long after the original LCP was created in 1980, the Environmental Protection Agency shut down the property’s sewage treatment facility. The sedimentation tank was not used for many years, then more recently, recommissioned as a stormwater holding tank. All MidCoast sewage is pumped to the SAM treatment facility at Frenchman’s Creek. The name ‘Montara Treatment Plant’ is now an anachronism, since the site can no longer be used, and is not equipped, to process sewage. During the winter, the property’s tank holds stormwater until it can be pumped to the SAM facility for treatment.
In the last few years, the oceanfront tank has repeatedly overflowed, sending many thousands of gallons of untreated stormwater sewage directly into the Fitzgerald Marine Reserve and Gulf of the Farallones National Marine Sanctuary. This practice violates LCP Policy 2.24, which requires “successful mitigation of any potential impacts…on resources, including habitats….”
These facts are rehearsed to underscore a painful truth, that from a public works perspective, the Montara Treatment Plant property is a literal disaster. It is properly equipped neither to process nor to hold sewage. The clear solution to excess stormwater lies in improvements to pumping stations and sewer pipe capacities in Montara. The property in question has no viable future as a sewage treatment or holding facility, and should be decommissioned and redesignated open space, as LCP Policy 2.23 envisions.

• LCP COMPONENT: SENSITIVE HABITS

LCP Policy 7.1 defines sensitive habitats as including “marine habitats,...sea cliffs, and habitats supporting rare, endangered, and unique species.” The property in question has sea cliffs, and adjoins the Fitzgerald Marine Reserve. LCP Policy 7.3 states:

“a. The County will prohibit any land use or development which would have significant adverse impact on sensitive habitat areas.
b. Development in areas adjacent to sensitive habitats shall be sited
and designed to prevent impacts that could significantly degrade
the sensitive habitats. All uses shall be compatible with the
maintenance of biologic productivity of the habitats.” (emphasis added)

It is obvious that the biologic productivity of sensitive habitats washed by untreated stormwater sewage will suffer significant adverse impacts. Sea cliffs are home to nesting birds and native plant life, the inshore waters and tidal areas to rare and endangered species such as abalone and sea otters. There should not be a stormwater sewage holding tank where it can overflow or leak directly into sensitive habitats.

• LCP COMPONENT: VISUAL RESOURCES

The property is in a highly visible location, next to the historic Point

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Montara Lighthouse, on a narrow strip of land between Highway 1 and the ocean. Not surprisingly, due to its use as a utility district facility, the property presents a visual blight at a public viewpoint on a County Scenic Road and Corridor. The property is fronted by a high chain link fence topped with a v-shaped network of barbed wire. Service and construction vehicles, machinery, and materials are stored in front of the main building and garage, near the highway. There are prominent signs warning against trespassing and hazards.
LCP Policy 8.15 states that:

The County will prevent development (including buildings, structures, fences, unnatural obstructions, signs, and landscaping)
from substantially blocking views to or along the shoreline from
coastal roads….”

One of the factors that makes the visual blight so jarring is the property’s adjacency to the lighthouse and hostelry, arguably the most charming historic oceanfront facility in the MidCoast.

• LCP COMPONENT: HAZARDS

The oceanfront holding tank, because of its location, age, condition, concrete materials, method of construction and type of use presents a significant threat of erosion and geologic instability. LCP Policy 9.8a reads:

The County will permit bluff and cliff top development only if
design and setback provisions are adequate to assure stability and
structural integrity for the expected life span of the development
(at least 50 years) and if the development (including storm runoff,
foot traffic, grading, irrigation, and septic tanks) will neither
create nor contribute significantly to erosion problems or geologic
instability of the site or surrounding area.”

The bottoms and sides of all concrete structures leak to some degree, due to concrete’s porosity and tendency to crack, which in this case means that water is regularly being leaked deep within an oceanfront cliff face. Every time the holding tank overflows, or if it should give way under the weight of a full tank, or suffer seismic damage, there is the real possibility of catastrophic blufftop slippage, jeopardizing structures on this and adjacent properties, as well as Highway 1 above and the marine reserve below. The unavoidable fact is that, by today’s standards, the County would never seriously consider approving the sort of oceanfront land use that now occurs at the Montara Treatment Plant property.

• LCP COMPONENT: SHORELINE ACCESS

As discussed above, LCP Policy 2.23b requires public access on the property’s seaward side, blufftop lateral access that has never been implemented.

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LCP Policy 10.17b requires the access to be “at least 25 feet in width.” LCP Table 10.6, under “Application of Policies” to the Point Montara area, states:

“Include public access to the lighthouse and south along the bluff
to connect to Fitzgerald Marine Reserve in all plans for the development of Point Montara Lighthouse.” (emphasis added)

• LCP COMPONENT: RECREATION/VISITOR-SERVING FACILITIES

The property in question fulfills virtually every LCP criterion for a priority public recreation site, which is why Policy 2.23a requires redesignation to open space if the property is not used for sewage treatment facilities.
First, LCP Policy 11.6 states that “The County will concentrate new public recreation…in the MidCoast,” and “The County will give priority to the MidCoast for the expenditure of County funds for the development of public recreation facilities.”
Second, LCP Policy 11.9 specifies that “The County will protect suitable oceanfront land for public recreation….” (emphasis added)
Third, the Montara Treatment Plant property adjoins a publicly owned visitor-serving recreation facility. LCP Policy 11.24a(4) states:

“The County will acquire and develop for recreational use lands which are adjacent to and would expand the size of existing publicly owned recreation areas.” (emphasis added)

Fourth, LCP Policy 11.27 recognizes the need to “provide for the improvement, expansion and maintenance of the Fitzgerald Marine Reserve.” Public use of the property in question would allow the blufftop observation and appreciation of the marine reserve environment, without the habitat damage to the reserve tidepools that results from the current emphasis on vertical, rather than lateral, shoreline access. In addition, the existing historic building can be used as an interpretative and educational resource for protecting the reserve.
Fifth, LCP Policy 11.20 expresses a number of criteria required of favorable public recreation sites, all of which the property in question fulfills: that the property has access to a public road, public restrooms, drinking fountains, telephones, and water and sewer utilities.
Sixth, LCP Appendix 10.A defines and rates a number of shoreline access assessment criteria that are favorable to the site in question: that the existing building conforms to ADA disabled access requirements; that the Point Montara site is unique and of special interest; that facilities and trails are immediately accessible from Highway 1, and adjacent to existing shoreline access; that there is adequate and expandable off-street parking; and finally, that the improvements required for public access are minimal, primarily involving adaptation of the existing buildings, construction of safe, design-reviewed blufftop fencing and pathways, and removal of decommissioned sewage and military facilities.

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Through the LCP Update Project, the Supervisors have the opportunity to implement Policies that would provide the MidCoast an oceanfront public recreation facility, adjacent to a historic lighthouse and hostelry, overlooking a marine reserve. The existing historic building is made-to-order as an interpretative and educational resource, as well as for other cultural and community events and purposes. And the special utility district, properly compensated for the purchase of the property, would receive a much-needed financial windfall that could be used to improve its infrastructure and service, reduce debt, etc.

SUMMARY OF CPR RECOMMENDATIONS FOR MARCH 29TH TOPICS

• ADOPT THE ‘HISTORIC GROWTH RATE ALTERNATIVE,’ AMENDED AS AN AVERAGE OF 52 UNITS PER YEAR.

• REDRAFT THE BOUNDARIES OF MONTARA WATER & SANITARY DISTRICT AND GRANADA SANITARY DISTRICT, AS REQUIRED BY LCP POLICY 2.14b.

• IMPLEMENT LCP POLICIES 2.23, 11.6, 11.9 ET AL, CONVERTING THE MONTARA TREATMENT PLANT PROPERTY, ADJACENT TO THE POINT MONTARA LIGHTHOUSE, TO A PUBLIC RECREATION SITE WITH AN OPEN SPACE DESIGNATION.

Thank you very much for your hard work, your openness to new ideas, and for your careful consideration of CPR’s recommendations.

Respectfully submitted,

Terrence D. Gossett for
Californians for Property Rights