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BREAKING NEWS: Monterey Downs project on last legs

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Business people horse racingSomething to be particularly thankful about today: Monterey Downs developer Brian Boudreau has told the city of Seaside that he no longer wishes to proceed with the project as it was approved by the City Council earlier this month and that he won’t indemnify the city as required against potential litigation over the various approvals. As a result, city officials will ask the council on Thursday, Dec. 1 to rescind its approval and send the venture back to the Planning Commission for possible revisions.

Monterey Downs, under the recently changed name Monument Village, is the large housing and commercial development long proposed for a wooded site at Fort Ord. It originally was proposed to be anchored by a horse racing arena but opposition to that and other aspects of the venture caused the developer to downplay that feature, leaving some question about the direction and viability of the project.

Opposition has centered on the need to remove thousands of trees and the developer’s inability to demonstrate any sustainable water supply. The City Council approved the overall venture earlier this month on a 3-2 vote but the Nov. 8 election has changed the balance of power on the council, creating the very strong likelihood of a 3-2 vote against the project. LandWatch Monterey has launched a referendum against the project, which would prompt another council vote.

The information about the apparent collapse of the project is included in the agenda for the Dec. 1 council meeting,  posted late Wednesday and discovered by Molly Erickson, lawyer for the Keep Fort Ord Wild group. The agenda item follows in full:

TO: City Council

FROM: Craig Malin, City Manager
BY: Lesley Milton-Rerig, City Clerk
DATE: December 1, 2016

Item No.: 10.A.

SUBJECT: CONSIDERATION OF RESCISSION OF: 1) RESOLUTION NO. 16- 97 AMENDING THE SEASIDE GENERAL PLAN TO INCORPORATE THE CENTRAL COAST VETERANS CEMETERY, MONUMENT VILLAGE, AND SEASIDE HORSE PARK SPECIFIC PLAN (FORMERLY KNOWN AS THE MONTEREY DOWNS AND MONTEREY HORSE PARK AND CENTRAL COAST VETERANS CEMETERY SPECIFIC PLAN) ADOPTED ON NOVEMBER 10, 2016; 2) ORDINANCE NO.1031 ADOPTING THE CENTRAL COAST VETERANS CEMETERY, MONUMENT VILLAGE, AND SEASIDE HORSE PARK SPECIFIC PLAN (FORMERLY REFERRED TO AS THE “MONTEREY DOWNS AND MONTEREY HORSE PARK AND CENTRAL COAST VETERANS CEMETERY SPECIFIC PLAN” ADOPTED ON NOVEMBER 17, 2016, AND 3) ORDINANCE NO. 1032 AMENDING TITLE 17 OF THE SEASIDE MUNICIPAL CODE AND THE OFFICIAL ZONING DISTRICT MAP (Z 12-02) TO INCLUDE THE CENTRAL COAST VETERANS CEMETERY, MONUMENT VILLAGE, AND SEASIDE HORSE PARK SPECIFIC PLAN (FORMERLY REFERRED TO AS THE “MONTEREY DOWNS AND MONTEREY HORSE PARK AND CENTRAL COAST VETERANS CEMETERY SPECIFIC PLAN”) ADOPTED ON NOVEMBER 17, 2016.

THE COUNCIL WILL ALSO CONSIDER DIRECTION TO STAFF TO TAKE ANY AND ALL ACTION NECESSARY TO EFFECTUATE THE RESCISSION OF THE PROJECT APPROVALS AND TO FURTHER REMAND THE MATTER TO THE PLANNING COMMISSION FOR POSSIBLE PROJECT REVISIONS AND FURTHER CONSIDERATION.

PURPOSE

The City Council, at meetings on November 10, 2016, and November 17, 2016, approved
amendments to the General Plan, adopted a Specific Plan, and adopted revisions to the City’s Municipal Code and official Zoning District Map for the proposed Central Coast Veterans Cemetery, Monument Village, and Seaside Horse Park Specific Plan (formerly known as the Monterey Downs and Monterey Horse Park and Central Coast Veterans Cemetery Specific Plan). The Project Applicant, Monterey Downs, LLC, informed the City on November 22, 2016, that they do not wish to proceed with the project as currently approved, and declined at this time to enter into an indemnification agreement as required by the approvals for the General Plan Amendment, Specific Plan, and Zone Text and Map Amendments. Therefore, the City Council will consider rescission of the approvals, direction to staff to effectuate that rescission, and remand the Project to the Planning Commission for consideration of further Project Revisions that Project Applicant may wish to propose.

RECOMMENDATION

It is recommended that the City Council take the following actions regarding the subject applications:

  1. Consider Rescission of Resolution No. 16-97 Amending the General Plan, Ordinance No. 1031 Adopting the Central Coast Veterans Cemetery, Monument Village, and Seaside Horse Park Specific Plan, and Ordinance No. 1032 amending the Municipal Code and Official Zoning District Map.
  2. Consider Direction to staff to take necessary steps to effectuate rescission of the foregoing approvals
  3. Consider Remanding the Central Coast Veterans Cemetery, Monument Village, and Seaside Horse Park Specific Plan project to the Planning Commission for consideration of possible project revisions as may be proposed by the Project Applicant.

BACKGROUND

There is no written report for this item. A verbal discussion will take place at the meeting.

FISCAL IMPACT

None.

ATTACHMENTS

None.

Meeting Date: December 1, 2016

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Business fraudThe author of a recent Partisan column proposed stronger transparency rules for state public utilities commissioners, who already are required to publicly report any contacts with utility representatives. The existing rules haven’t stopped commissioners from becoming overly chummy with those they regulate but at least they have helped show ratepayers what they’re up against.

The proposal likely won’t go anywhere, but it raises a thought. If California lawmakers thought such disclosures were needed in the utilities arena, why shouldn’t there be similar rules for other officeholders, starting with county boards of supervisors?

Monterey County’s handling of the Ferrini Ranch development provides real support for the idea and it also raises important questions about the roles of individual supervisors. While making land-use decisions, are they unbiased arbiters making tough calls in the name of the public good, after all sides have had their say? Or are they negotiators, expediters, accommodators, empowered to make private deals even while the public process plays out as though it mattered?

In other words, should they do what then-Supervisor Lou Calcagno did, work behind the scene for months—actually years, it turns out—in order to help a favored developer and campaign contributor win a vote worth millions of dollars? Can a supervisor quietly lobby other government agencies on behalf of a proposed development and then assume a posture of neutrality while voting in favor? Or should there be rules to prevent such a thing?

The proposed 185-lot Ferrini Ranch development straddles Toro Regional Park along Highway 68. Neighbors and environmental groups protested vigorously on several grounds, especially the lack of a sustainable water supply and the impact on Highway 68, easily the most congested roadway in the county.

In the midst of the formal vote on the plans Calcagno announced that he had negotiated a side deal calling for the developer to put money into escrow for potential use in recycling area wastewater if area residents agree to form a community services district for that purpose. Suggesting that he had found a magic solution, Calcagno offered that the arrangement could help ease the project’s impact on the dwindling Salinas Valley water supply.

If anyone in the audience wondered about details of the recycling plan or about the propriety of one supervisor crafting a special deal that had received no public airing of any sort, there was no chance to raise those issues because the public hearing had been closed.

If any of the other supervisors knew about Calcagno’s negotiations over the recycling idea, they didn’t let on. As arranged by Calcagno, the developer is to put $425,000 into an escrow account that would be used toward wastewater recycling if and when residents of the Toro Park and Las Palmas areas agree to form a community services district for that purpose. Chances of that seem remote, however, because such a project would at least double sewer bills for each residence in the area.

If the district isn’t formed, the developer gets the money back—assuming that county officials actually require the money to be deposited in the first place.

That was not the only example of Calcagno’s behind-the-scenes work to accommodate the venture. Newly disclosed county email records indicate that Calcagno’s office organized a July 2013 meeting between the head of the development team, Mark Kelton, and John Laird, director of natural resources for California. Calcagno also attended, along with a biologist working for Kelton, a county planner who is now the chief planner on the Ferrini project, and Sherwood Darington of the Monterey County Ag Land Trust.

As natural resources director, Laird oversees several key state agencies, including Fish & Wildlife. Although the Monterey County supervisors have approved the Ferrini Ranch project, Kelton and state Fish & Wildlife officials are still discussing the ramifications of sensitive clover and salamander habitat on at the project site, the foothills overlooking Highway 68.

At the time of the meeting in Santa Cruz, the environmental impact report for the Ferrini project was still in the works and state Fish & Wildlife officials had raised concerns about how Kelton would mitigate the project’s impact on the salamander and clover. Fish & Game also was concerned about the project’s potential for blocking the movement of other wildlife on the hilly property. Theoretically, the project still could be stopped if Fish & Wildlife declines to issue the appropriate permits.

Laird said last week that he could not recall details of the meeting other than that Kelton expressed concern about the positions of state agencies. The Partisan was unable to determine whether the meeting resulted in any softening of the Fish & Game stance on habitat protection despite Calcagno’s effort.

Mike Novo, head of the county department, said Friday that planner John Ford of his staff attended the meeting in order to discuss Fish & Wildlife issues on the Ferrini property and elsewhere.

Derrington, a managing director of the Land Trust, said he was looking for help obtaining a state grant to help the trust pay for Kelton-owned land that could qualify for protection under an agricultural easement. Discussions about that possibility continue even now that the subdivision plans have been approved.

“There were other discussions that day that I was not involved with,” Derrington said.

Calcagno declined to comment on the meeting. Over the telephone, his wife told the Partisan, “He says he is out of politics now and doesn’t want to talk to you.”

Supporters of Calcagno and the Ferrini Ranch project will say he did nothing wrong, and it is almost certainly true that he broke no laws. But in these instances, and who knows how many others, he certainly stretched the definition of representative government. Getting the Ferrini Ranch project this far has required discussions, negotiations, with highway officials, parks officials and many others. It would be a surprise if Calcagno let the county staff handle all that without his hands-on guidance.

“I don’t think county supervisors should lobby on behalf of private interests at the expense of community interests,” said Chris Fitz, the former director of LandWatch Monterey, which is suing to stop the project.

“The Department of Fish & Wildlife is charged with protecting the public interest. If Calcagno participated in lobbying Fish & Wildlife to go easy on the developers of Ferrini Ranch, he put the interests of the landowners above those of the public. It appears that Lou Calcagno made up his mind to support this project before the environmental analysis was complete. Indeed, it looks as if he wanted Fish & Wildlife to go easy on the project so that his support of the project would not look so egregious.”

Throughout his three terms on the board, Calcagno was known as a backroom negotiator, something that brought him both praise and criticism. Over time, the public and other officials seemed to accept his role as a dealmaker, even when it clashed with widely accepted government practices. However, his backroom dealings on the Ferrini matter raise serious questions about the private actions of public officials acting in a quasi-judicial role. The Ferrini project had been narrowly approved by the county Planning Commission but that recommendation had been formally appealed to the Board of Supervisors, by a planning commissioner, no less.

It has long been considered a legal requirement that local governing bodies avoid “pre-judging” any issues until the public has had its say. For Calcagno, any pretense of abiding by that basic principle evaporated well before the Ferrini Ranch project came up for a vote.

What good would it do if supervisors were required to publicly declare their contacts with developers or their representatives, or representatives of companies wanting county contracts? Directly, probably not much. But if a supervisor had to disclose repeated private meetings and communications with the same interests, one of two things would likely occur. Fewer private discussions would come about, or disclosure of the contacts would make it obvious that the supervisor had a conflict of interest and should not vote.

In fairness to Calcagno, the roles of county supervisors are not nearly as clear cut as the roles of city council members and some other elected officials. City council members are supposed to act solely as legislators, adopting policies and making decisions but staying out of administrative matters at City Hall. Technically, similar restrictions apply to county supervisors, but they receive full-time salaries and often work at their county roles full-time. It is not unusual for them to insert themselves into administrative matters despite the presence of professionals assigned to those duties.

Not surprisingly, Calcagno received a series of campaign contributions over the years from Kelton and related parties, who also contributed to the other two supervisors supporting the project, Simon Salinas and Fernando Armenta. Calcagno’s take topped $10,000. The others received smaller amounts.

Kelton contributions also went to Supervisor Dave Potter, who voted against the project, which is in his district. Project opponents have criticized him, however, for not doing more to block it. Some have even characterized his no vote as a sham. Glen Robinson, former president of the Carmel Valley Association, accused Potter in a letter to the editor of voting against the development only after being assured by his colleagues that it would be approved no matter how he voted.

The developers also contributed to the campaign of Calcagno’s successor, John Phillips. There is no record that they ever contributed to any of Laird’s campaigns but they did make a series of contributions to the legislative campaigns of a Laird ally, former Salinas Mayor Anna Caballero. She is now secretary of the California Business, Consumer Services and Housing Agency.

Coincidentally, the Ferrini developers are represented by well-known land-use attorney Tony Lombardo, who also has done private legal work for Calcagno and Potter.

Two groups, LandWatch Monterey County and the Highway 68 Coalition, have filed lawsuits aimed at blocking the project. The litigation challenges the adequacy of the environmental impact, particularly as it pertains to traffic, and challenges the county’s decision to approve the project under provisions of the county’s 1982 general plan rather than the 2010 plan.

Two supervisors, Potter and Salinas, announced late last year that they planned to pursue tighter limits on campaign contributions to supervisorial candidates. It’s an idea that seems overdue. At the same time, though, it could prove to be an even better idea to consider regulations barring supervisors from voting on matters affecting contributors, like the rule in place for members of the Pacific Grove City Council. And, better yet, activities surrounding the Ferrini Ranch project suggest that rules should be put into place requiring supervisors to tell the public what’s really going on and requiring them to stop pretending that it’s a level playing field.

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