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HomeMy WebLinkAboutSutton,Paula-McGlashan comment-not rec in timeBarbara Cahill From: Paula Sutton [rangeoflight@hotmail.com] Sent: Wednesday, May 04, 2011 6:28 PM To: Michael Holley Cc: Joe Aguera; Jeff Bender; Ron Hemig; John Hillstrom; Tony Laliotis; Steven Poncelet; Kathy Neus; J Bender; Barbara Cahill Subject: RE: Environmental Requirements Regarding the Potential Sale of the McGlashan Springs Property Attachments: PaulaSutton_CommentLetter_McGlashanSale.050411.pdf Dear Mr. Holley and PUD Board of Directors: Please see my attached letter to be presented during the time of public comment regarding the proposed sale of the McGlashan Springs Property to Tahoe Donner Association. Juanita Schneider has agreed to read my letter. If this is not possible, then maybe Barbara Cahill, Deputy District Clerk can read the letter. I also faxed the letter to the PUD at 530- 587-5056. Please make sure that paper copies are distributed and that Juanita has a copy to review and read. Regarding the email below mentioning Ron Parsons, he informed me that he did not agree with the PUD attorney, as stated below. I just want to have that in the record. Thank you very much, Paula Sutton From: michaelholley@tdpud.org To: rangeoflight@hotmail.com CC: joeaguera@tdpud.org; jeffbender@tdpud.org; ronhemig@tdpud.org; johnhilistrom@tdpud.org; tonylaliotis@tdpud.org; stevenponcelet@tdpud.org; kathyneus@tdpud.org Date: Fri, 8 Apr 2011 08:34:25 -0700 Subject: RE: Environmental Requirements Regarding the Potential Sale of the McGlashan Springs Property Paula, The District's real property attorney handling this sale is Ms Cristina Wooley of Truckee. Ms Wooley has reviewed the requirements for a CEQA review and has determined that the proposed sale of the McGlashan Springs property is not a project and therefore the requirements of CEQA do not apply. To support this opinion, I have attached a copy of a specific court case, "Friends of the Sierra Railroad v. Tuolumne Park & Recreation Dist. (Tuolumne Band of Me -Wok Indians) 2007". The decision in this case substantiates the District's position that the proposed sale of the property is exempt from CEQA review. In "Friends of the Sierra Railroad," the subject property contained recognized and listed historical resources, and yet CEQA review was considered premature in the absence of a proposed development plan. Even assuming the existence of potential environmental features on a property, the analysis does not change. In the absence of a proposed plan involving an identifiable impact, CEQA review is premature. At our request, Ms Wooley contacted Mr. Ron Parsons, CEQA Coordinator. When provided all of the information pertaining to this transaction, Mr. Parsons acknowledged that CEQA review is premature in the absence of specific plans for the subsequent property use by the future owner. However, Mr. Parsons and the District agree that CEQA review will be required in the future, at the time a proposed plan involving an identifiable impact is presented by the buyer. In going one-step further to research this matter, we asked Ms Wooley the hypothetical; "If the sale of the McGlashan Springs parcel were to be considered a project, what would be the requirements under CEQAT' Ms Wooley stated that the action would then be considered "Categorically Exempt" pursuant to California Code of Regulations, Section 15312. The Secretary of the Resources Agency has found that the sale of surplus government property does not have a significant effect on the environment and is therefore categorically exempt unless the property is located in a specifically identified area of concern. The McGlashan Springs parcel is not located in an area of concern, and as such the Section 15312 categorical exemption applies. In your email of April 7"', 2011 you stated "I think that the PUD needs to be careful about establishing a sales agreement and terms of a sale agreement (e.g., deed restrictions such as the use of the property, conservation easement) in behina door sessions prior to environmental review such as would be afforded by compliance with CEQA." The Board has not taken any formal action with respect to approving a sales agreement or the terms of sale at this time. The Board has met in closed session in compliance with the Brown Act to provide me, District Negotiator, with direction regarding bargaining parameters for this sale. The Board of Directors is currently scheduled to consider this matter in open session at the May 4, 2011 regularly scheduled Board Meeting. If you have any further questions or concerns they may be addressed at this time. From: Paula Sutton [mailto:rangeoflight@hotmail.com] Sent: Tuesday, April 05, 2011 8:49 PM To: Michael Holley Cc: Joe Aguera; Jeff Bender; Ron Hemig; John Hillstrom; Tony Laliotis; Steven Poncelet Subject: RE: Environmental Requirements Regarding the Potential Sale of the McGlashan Springs Property Hello, This is a follow-up to my 3/15/11 email. I would appreciate receiving answers to my questions. 1) What is the current status of the proposed sale of the McGlashan Springs property to Tahoe Donner Association? 2) Is a public hearing planned? 3) Who is the TDPUD real estate attorney that provided the legal opinion? Why does she believe that the sale of surplus government property does not constitute a project (or action) under the California Environmental quality Act (CEQA)? What specific categorical exemption is she referring to? What is her position regarding CEQA Article 19. Categorical Exemptions, § 15312. Surplus Government Property Sales? 4) Do you know that other government agencies such as Caltrans, comply with CEQA, by routinely initiating environmental review for land disposals and acquisitions. 5) Is a conservation easement planned? If so, have professional biological and cultural resource surveys been conducted to justify and demarcate the limits of the easement? In past email you informed me that the TDPUD has no record of biological and cultural resource surveys on the property. I believe that the sale of this surplus property is subject CEQA under Article 19. Categorical Exemptions, § 15312. Surplus Government Property Sales because the property has significant values for wildlife habitat or other environmental purposes. We know there are archaeological and botanical resources on the property. Several years ago, a local botanist and historical society official gave TDPUD staff and board members a tour of the property and shared information about the uniqueness of these resources. I have a copy of a botanical plant list for that property that indicates unusual diversity, and some plants are listed on the the California Natural Diversity Data Base (list of endangered, threatened, and rare plants). Based on the cultural resource evidence, I believe that the property contains resources that are eligible for the National Register of Historic Places. Further investigation may reveal that the area has Native American values. I have worked for government agencies as an Environmental Planner, Environmental Projection Specialist, Environmental Project Manager, and Archaeologist for over 20 years. I verified my opinion with staff at the State Clearinghouse and Planning Unit within the Governor's Office of Planning and Research, as welll as the California Department of Fish and Game. This further validates my position that the TDPUD should conduct CEQA review, including biological and cultural resource surveys prior to the sale of this property. I think that this would result in an Initial Study and Mitigated Negative Declaration that will provide baseline information and committments for the protection of resources on the property. Thank you for considering my concerns. Sincerely, Paula Sutton, M.A. RPA From: rangeoflight@hotmail.com To: michaelholley@tdpud.org CC: jell@becx.net Subject: RE: Environmental Requirements Regarding the Potential Sale of the McGlashan Springs Property Date: Tue, 15 Mar 2011 16:41:27 -0400 Hi, Thank you for your email. Who is the TDPUD real estate attorney? Why does she believe that the sale of surplus government property does not constitute a project under CEQA? What specific categorical exemption is she referring to? What happened to the idea of a conservation easement? Thank you, Paula From: michaelholley@tdpud.org To: rangeoflight@hotmail.com; jell@becx.net Date: Fri, 11 Mar 2011 10:05:21 -0800 Subject: RE: Environmental Requirements Regarding the Potential Sale of the McGlashan Springs Property Hello Paula: I asked our real estate attorney to provide me with an opinion regarding this issue. Her conclusion is that the sale of surplus government property does not constitute a project under CEQA and therefore no CEQA review is required. If you take the view that this action does constitute a project, then there is a specific categorical exemption that this action would fall under. Again no CEQA review required. TDA did meet with the Town and discussed zoning restrictions on the property. The property is currently zoned RR20 (Rural Residential, 20 acre lot minimum). The proposed sales agreement does not allow for any actual residential use. Under the current zoning, the Town will allow certain types of recreational use of the property. However, a permit (i.e. building permit, minor use permit, special use permit) would be required for any improvements on the parcel. These permits would require CEQA review prior to issuance. As far as an update on the project status goes, the draft sales agreement and easement for conservation have been completed, reviewed by legal counsel on both sides, and submitted to TDA management for their review. I am not expecting any formal response from TDA until the week of the 21" of March. Depending on their comments and progress on the price negotiations, we will probably have documents for public review towards the end of March or beginning of April. From: Paula Sutton[mailto:rangeoflight@hotmail.com] Sent: Wednesday, March 02, 2011 5:51 PM To: Michael Holley; I Bender Subject: Environmental Requirements Regarding the Potential Sale of the McGlashan Springs Property Hello, I looked at the TDPUD website today and saw on the agenda for tonight's meeting that there is a closed session to discuss TDPUD's potential sale of the McGlashan Springs property to Tahoe Donner Association. As a follow-up to our earlier communications, what is TDPUD's plan to conduct environmental review and comply with the California Environmental Quality Act (CEQA)? We know there are biological and cultural resources on the property, however there is no known survey or documentation of those resources by professionals qualified to do that work. There could be rare, threatened or endangered plant species; wetlands; remnants of the McGlashan Springs water system, or other cultural resources on the property. Surveys and significance evaluations of resources would provide baseline information and guide decisions regarding future land use and need for mitigation measures such as a protective easement, deed restriction, etc. Please refer to State CEQA Guidelines: Article 19. Categorical Exemptions § 15312. Surplus Government Property Sales. Class 12 consists of sales of surplus government property except for parcels of land located in an area of statewide, regional, or areawide concern identified in Section 15206(b)(4). However, even if the surplus property to be sold is located in any of those areas, its sale is exempt if: (a) The property does not have significant values for wildlife habitat or other environmental purposes, and (b) Any of the following conditions exist: (1) The property is of such size, shape, or inaccessibility that it is incapable of independent development or use; or (2) The property to be sold would qualify for an exemption under any other class of categorical exemption in these guidelines; or (3) The use of the property and adjacent property has not changed since the time of purchase by the public agency. http://www.ceres.ca.aov/cega/docs/2010 CEQA Statutes and Guidelines.pdf I believe that the sale of this surplus property is a project or action subject to CEQA, and I recommend that the TDPUD be a good steward and perform an Initial Study that includes biological and cultural resource surveys prior to selling the McGlashan Springs property. This could result in a Negative Declaration of Mitigated Declaration. I think that the TDPUD needs to budget time and resources to assign, hire, or contract qualified subject matter experts to perform the required studies. Please note that I verified my opinion with staff at the State Clearinghouse and Planning Unit within the Governor's Office of Planning and Research. If there are any questions, you can contact Ron Parsons, CEQA Coordinator in the Local Government Unit at 916-445-7016. Thank you, Paula Sutton, M.A., RPA Following in the footsteps of my mother, Pat Sutton, who was a friend of the community, a friend of the environment, and champion for natural and cultural resource conservation. P.O. Box 1123 Truckee, CA 96160 and 6250 Central Blvd. #110 Whitestown, IN 46075 May 4, 2011 Truckee Donner Public Utility District Board of Directors. PO Box 309 Truckee, CA 96160 Re: Proposed Sale of McGlashan Springs Property (APN 18-010-10) to Tahoe Donner Association Dear Directors: I appreciate the opportunity to comment on the Truckee Donner Public Utility District's (PUD's) proposed sale of surplus government property called McGlashan Springs (APN 18- 010-10) to Tahoe Donner Association ('TDA). The TDA is a large, homeowner's association that serves Tahoe Donner, a 6,000 acre development (includes homes, golf course, restaurants, downhill and cross country ski area, equestrian center, campground, tennis courts, hiking trails, playgrounds, pools, fitness center, etc. - some are exclusive for property owners and some are open to the public). TDA even has its own Forestry Department. The PUD has been in active negotiations with TDA and is presenting a Sales Agreement and Easement Deed to the Board for signature. I recommend that the Board not sign these documents until they undergo farther review and input by the Board, subject matter experts, and the Public. I am making this recommendation in the name of my mother Patricia Sutton who served as a PUD Board for over 30 years until her death in 2010. Pat Sutton was the Board's conservation voice and was known for her thorough and thoughtfiil analysis of matters presented to the Board. She opposed the sale of this property in the past because she was interested in preserving its unique features. My recommendation is also based on my college degrees and nearly 35 years experience working as both an Archaeologist and Environmental Planner/Environmental Protection Specialist for public and private sectors. The McGlashan Springs property is open space comprising two parcels totaling about 160 acres. The property contains significant biological and cultural resources, wetlands, and wildlife habitat. I have spoken to a local botanist and historical society member who led a fieldtrip for the PUD Board and staff in 2006. The fieldtrip occurred because there was controversy about selling the property. The property has a spring and unique biodiversity, containing cedar trees, and possibly rare, threatened, endangered species and/or species of concern. The property also contains cultural resources that may be eligible for inclusion in the California Register of Historic Resources and the National Register of Historic Places. Page 2 Comment letter on proposed sale of McGlashan Springs The PUD staff and Board are aware that the parcel contains significant cultural and biological resources. I inquired with PUD staff and learned that there is no knowledge or documentation of environmental studies or professional resource surveys conducted on the property that identify, describe, and delineate those resources. The map which is part of the proposed Sales Agreement shows the general location of some of these environmental features but they have not been verified by professionals who perform work in compliance with the California Environmental Quality Act (CEQA) or other applicable laws and regulations. Additional resources, yet to be identified, likely exist on the property. CEQA has a goal of transparency in environmental decision -making, yet the PUD has neglected to mention CEQA in documents presented for public review. PUD staff doesn't believe that CEQA applies; however the public should be informed how this decision was determined. I have had email contact with the PUD General Manager Michael IIolley and Board Directors expressing my recommendation that the PUD comply with CEQA by 1) doing an Initial Study which may lead to a Mitigated Negative Declaration, and 2) conducting biological and cultural resource surveys to provide baseline information for the Initial study and Conservation Easement. Mr. Holley informed me that based on a legal opinion the proposed sale is not a "project" and therefore not subject to CEQA review. This opinion is based on the court case, "Friends of the Sierra Railroad v. Tuolumne Park & Recreation District, Defendant and Respondent; Tuolumne Band of Me -Wok Indians (2007)". In this case, the subject property to be sold contained a historic railroad grade, and yet the judge ruled that CEQA review was considered premature in the absence of a proposed development plan. I believe that the PUD has erred in concluding that the proposed land sale is not a project subject to CEQA. I believe that CEQA applies because the sale of land may have a significant effect on the envirouument. According to section 15378 of the CEQA Guidelines, a "Project" means the whole of an action, which has the potential for resulting in an environmental change. Case law is not always clear cut, one -size -fits all. The Friends of the Sierra Railroad v. Tuolumne Park & Recreation District is a controversial case that could have gone the other way. I have verified my opinion with CEQA attoineys who practice law, teach CEQA classes, and write CEQA books. Moreover, I don't believe that this case applies to the sale of McGlashan Springs because: 1) The record shows that he TDA intends to use the parcel for recreation (e.g., trails, sports fields, non-residential structures/buildings) and as a fire protection buffer. (Note that the TDA Forestry Department's goal is to maintain a healthy forest and lessen the threat of catastrophic wildland fire. Some of their fire management practices can be ground -disturbing and may impact resources.) Page 3 Comment letter on proposed sale of McGlashan Springs 2) The proposed sale is conditioned by an Easement Deed intended to: a) protect cultural, biological, and hydrological resources, referred to as "special features"; and b) retain the natural forested condition of the property. The PUD should be more specific and change the name of the "Easement Deed" to a "Conservation Easement Deed". The Conservation Easement allows for improvements, specifically "trails, sports fields, non-residential structures/buildings", apparently at the request of TDA, as long as they do not substantially disturb the "special features" or impair the forested nature of the property. Why would non-residential structures/buildings be less impacting than residential buildings/structures? Is flora other than trees important? Could non -forested areas also contain valuable environmental resources worth preserving? The Conservation Easement only protects those "special features" that have labels on the map. These "special features" have not been ground-truthed, and are not based on professional surveys conducted in compliance with environmental and historic preservation laws and regulations. What about "special features" that have not yet been identified? The deed appears contradictory by stating both that "current access will be retained", yet also states that "it does not grant the public the right to enter the property." Is it the PUD's intent to give the TPA sole authority to grant or not grant public access? The PUD does not consider their action a project having CEQA requirements, yet they require mitigation measures to protect environmental resources. I consider this to be an error in judgment. I believe that the proposed sale is a project subject to CEQA. The sale of the land is the first step in changing land use from open space to recreation and fire protection, leading to potential environmental impacts. The PUD is requiring a Conservation Easement which is intended to mitigate adverse effects. The sale of the property is a discretionary project subject to CEQA because the PUD is conditioning the sale with mitigation measures contained in the Conservation Easement. Furthermore, a Categorical Exclusion (CatEx) does not apply because a project under CEQA cannot be categorically exempt and subject to mitigation of impacts. There can't be a mitigated CatEx. See "Salmon Protection and Watershed Network v. County of Marin 2004". I advise that the PUD conduct an Initial Study, which would likely lead to a Mitigated Declaration. I further recommend that the Conservation Easement undergo additional review and strengthening. The PUD made the meeting agenda and sale documents available to the PUD Board and public on Friday April 29, 2011 and expects the PUD Board to review and approve these documents tonight Wednesday May 4, 2011. This is inadequate time for review and doesn't give the public adequate notice of the proposal prior to PUD decision. The PUD Page 4 Comment letter on proposed sale of McGlashan Springs should invite environmental subject matter experts to review the documents and have input into the Conservation Easement. I offer some preliminary continents on the Conservation Easement. The property should be inventoried because the PUD doesn't know all of the resources that need to be protected. The document addresses PUD enforcement of development restrictions, but omits language on enforcing measures to protect resources. With increased traffic of people on the parcel there is potential for increased damage and/or theft of resources. Is the PUD prepared to hold the Conservation Easement in perpetuity? Does the PUD have qualified staff to monitor use of the land, monitor and manage resources, and address potential impacts? If not, then the PUD should consider having an on -call contract(s) task order(s) with consultants having biological and cultural resource expertise. Apparently, the PUD is relying on the Town of Truckee to guide TDA and enforce CEQA requirements for proposed development. Who guides and enforces TDA forest/fire management activities? What is the PUD's role in reviewing proposed actions and specific plans for development and forest and fire management for compliance with the Conservation Easement? The PUD should establish a review process for land actions. Unless the PUD is interested in fixture water rights, the PUD should consider donating the Conservation Easement to a land trust that may be in better position to protect resources. A Conservation Management Plan should be prepared and adopted for the protection of resources. Biological and cultural resource survey data would provide more detailed maps and descriptions of the property's characteristics and feed into that plan. (Note: spring is the time to do biological surveys.) Also, the PUD should establish a review process for land actions. Thank you for the opportunity to comment on the PUD's proposed sale of the McGlashan Springs property. I encourage the Board to delay deciding on this matter until the Board and public have more time to consider the proposed action, proposed Sales Agreement and Easement Deed, and environmental requirements... Furthermore, given that the PUD General Manager and majority of the Board members did not participate in the workshop and fieldtrip held in 2006, I recommend that another workshop and fieldtrip be held to address this matter, that ample public notice be given, and that these be held on a Friday or Saturday in order to increase participation. Sincerely, Paula Sutton, MA, RPA* * Registered Professional Archaeologist