HomeMy Public PortalAbout19850417 - Minutes - Board of Directors (BOD) 85-09
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
375 DISTEL CIRCLE,SUITE D•1„LOS ALTOS,CALIFORNIA 94022
(415)965-4717
SPECIAL MEETING
BOARD OF DIRECTORS
April 17 , 1985
WORKSHOP MINUTES
The following corrections were made to the Workshop Minutes of March 30 , 1985 :
Page 1: H. Turner - Said he was repelled by the coercive aspects of eminent
domain and that alternate methods for land acquisition should be
explored. Said that he would be willing to consider foreswearing
use of eminent domain and that the District should not remove
people from the land on which they are living.
Page 2: Artemas Ginzton - Discussed her opposition to use of eminent domain.
Said Stevens Creek connection involved willing owners who were
willing to grant trail easements , not eminent domain.
Page 2: William Obermayer - Said he didn't think there should be any condem-
nation at all but if Board felt it was necessary to have specific
piece of land there should be a unanimous vote of Board of Directors
and Board of Supervisors in area where property is located.
Page 4: David Leeson - Discussed the value of a person' s property, noting
value was not only measured in dollars. Said people in the Mt.
Umunhum area were concerned about the District' s actions. Dis-
cussed use and safety of District lands , said unsupervised use
of lands is dangerous to neighbors because of issues such as
fires. Said meetings were essential to building trust and that
eminent domain should not be used.
Policy Regarding Use of Power of Eminent Domain
Bob Brown - Commended MROSD on its use of eminent domain in the past.
Hopes that instead of saying "never" to use the power of eminent domain,
that MROSD would say "hardly ever use it again. " MROSD must be respon-
sible to all taxpayers in the District and therefore should pursue and
complete the task before them.
Janet Schwind - Representing the South Skyline Association, stated that
MROSD' s eminent domain policy should be "interest in land shall be pur-
chased exclusively from willing sellers. " She stated MROSD has developed
a coercive approach and that more cooperative methods of preserving
natural areas have not been explored simply because it is easier to use
the force of law. Need to develop working relationship with Counties ,
other agencies and private property owners .
William Obermayer - Asked what MROSD' s task at hand was and whether there
was a limit in the District' s land acquisition program.
Herbert A.Grench,General Manager Board of Directors:Katherine Duffy,Nonette G.Hanko,Teena Henshaw,Richard S.Bishop,Edward G.Shelley,Harry A.Turner,Daniel G.Wendin
Page Two 85-09
Alan Hoskings - Asked _,., MROSD can acquire proper,, outside District bound-
aries by use of eminent domain. He said that the County had created
inverse condemnation situations by downzonings and building moratoriums.
S. Norton - Said the District can acquire property outside District ' s
boundaries by use of eminent domain.
Robert Fisse - Stated he personally felt that policy regarding condemnation
should be: "District shall buy only from willing sellers that are within
the District' s boundaries and that the threat of condemnation shall never
be used in negotiations. " He said his position is based on fact that
voters believed, at the time of the District' s formation, that the
District had finite boundaries.
Charles Touchatt - Said that establishing policy was good, but asked how
the public could be assured that new policy would be carried over and
remain in effect over future years.
H. Turner - Said that he, N. Hanko, and R. Bishop would be working on pre-
paring a policy regarding the use of eminent domain and that members of
the public should feel free to contact any members of the Committee to
submit ideas.
E. Shelley - In response to Mr. Touchatt' s question of how the public is to
be assured that any policy would remain in effect, E. Shelley said that
that is the most difficult item. He said that his own feeling was that
any Board would have to rely on policy and hopefully precedent and that,
if a Board establishes limits on use of condemnation and holds to them,
such action would be the best assurance available. He did not believe
there is any way that the current Board can legally bind future Boards
under the law.
N. Hanko - Indicated she had asked District Counsel to investigate legal
means of binding future Boards.
R. Bishop - Said he didn't believe that the current Board could adopt policy
to bind future Boards. He said he believed that the current Board had
been adhering to established policy, that policies are quite durable,
and that there would be a moral commitment on future Boards not to change
the policy.
K. Duffy - Said it is her belief that widespread distribution of the eminent
domain policy by Board, staff and landowners is the best way to assure
adherence to the policy.
David Leeson - Said that the binding element of the policy is admirable but
not reassuring. He suggested that the District grant an easement to
landowners saying eminent domain would never be used. He said such a
binding contract would assure property owners. He asked for clarifica-
tion of partial condemnation for a right-of-way over private property.
R. Bishop - Said he felt there are some cases where District would want to
retain its power of condemnation over a portion of a person' s property
and that he did not favor a policy that would prohibit all partial con-
demnations. He noted that every case is different and needed to be
judged on its own merit.
E. Shelley - Stated he felt that by retaining a policy that would allow par-
tial condemnations would give the Board more leeway in being more restric-
tive on use of overall condemnation. He said that at the moment he is
not in favor of adopting a policy of never using eminent domain for
partial condemnation.
85-09 Page Three
Richard Bullis - Said that the Board is beginning to show sensitivity by
holding workshops and referred to the letters from N. Hanko and H. Turner.
He said he has never received any straight forward decisions regarding
Quinta Ranch and that in his development of Russian Ridge Ranch he wants
to work toward and share his plan of dedicating 81% of the remaining
land for open space.
Hans Morawitz - Expressed his appreciation for actions by MROSD and said
he hopes MROSD will continue to use eminent domain when necessary to
protect the interests of "flat landers" since they wish to see lands
remain open space and available for public use.
Bill Sorich - Reported that he had received a map in the mail recently that
showed his land in green; he said he was not a speculator and wanted
to live and let live. C. Britton stated that map being discussed was
sent to William Obermayer and referred to a road maintenance agreement
only.
Paul Storaasli - As a Portola Heights resident, he said he is part of a com-
munity that feels threatened. He said he is in process of developing
his lands and believes his plans support District ' s ideas of open space.
He asked for a specific definition of undeveloped property and said he
cannot support a policy of eminent domain, noting acquisitions should
be from willing sellers within District boundaries.
Allan Cox - A Skylonda resident for over 25 years , he indicated that the
quality of his life has been enhanced by the work of MROSD. He said
he hopes that eminent domain continues to be used for the greatest good
and believes that in 50 years , if population records are an .indication,
that there will be very few green islands in the area.
Judy Storaasli - Said she felt further consideration needs to be given to
defining developed/undeveloped property and that her goals for their
property complement the District's goals.
R. Bishop - In response to question regarding limits in the amount of land
to be acquired , R. Bishop said that as land prices go up there will be
less money to spend on acquisition and as more lands are acquired more
money will have to be spent on management of these lands. He said that
within the next 10 years MROSD will have to be very selective in
acquisition and that the District always prefers to deal with willing
sellers.
E. Shelley - Stated, responding to the question regarding private property
either held in open space or developed in a manner consistent with goals
of MROSD, that one problem is a change in the long-term use of that
property. He said one approach is an open space easement given in
perpetuity.
H. Turner - Said there is need for creative thinking to make eminent domain
policies binding on future Boards.
Lynn Penek-Holden - Asked if there was harm or a problem if a private owner
did not plan to develop their land and wished to leave it as private
open space. She asked if it is necessary for the District to have trails
over all open property.
Sandra Touchatt - Asked if MROSD has a master plan for hiking trails and if
any consideration had been given to communities that are already built.
Page Four 85-09
N. Hanko - Said she would take into consideration areas with established
communities.
R. Bishop - Said that the District 's Master Plan shows land as it relates
to open space.
E. Shelley - Said that the District ' s Master Plan does not show trails.
Candace Stone - Stated that since there seemed to be so much protest and
since there were other agencies acquiring land in area (such as State
Parks and Save-the-Redwoods League) , trails should circumvent the
Portola Heights area.
Jeannette Bullis - Said she is very much in favor of what MROSD is doing,
adding that there is room for residential areas in the Skyline area too.
Ms. MacPhearson - Said she has worked hard to build home in the Portola
Heights area and is concerned with what she will be able to give to
her children.
Bob Piety - Said he didn't think anyone at meeting was against open space,
rather they were against the use of eminent domain since it might shatter
someone' s dream. He said that since MROSD has acquired most of its
18 , 000+ acres without the use of eminent domain, the District shouldn't
have to use it in the future.
Carol Norton - Said that she appreciates what MROSD is doing, that only
land she owns on Skyline is MROSD land, and that she wants MROSD to
continue to purchase land. She said eminent domain is a tool that needs
to be kept and used where and when necessary.
E. Shelley - Said that individuals in the Skyline area are aware that there
is no permanence in zoning restrictions , adding that zoning describes
only what is presently the highest and best use of land. He said he
felt it is no protection for long term use of open space and was an
unfair way to protect open space.
R. Bishop - Said that the District ' s Master Plan does not have specific
parcels identified and that it rates land by desirability and quality
for open space.
E. Shelley - Said that MROSD relies on schematic plans from the two Counties
for trails and pathway plans.
H. Turner - Described the thrust of the District 's acquisition program and
said that further acquisitions will be limited by financial constraints.
He said it has been shown that approximately two-thirds of the land
that MROSD will ever acquire has already been acquired and that MROSD
is shifting from an aggressive land acquisition policy to more emphasis
on land management.
Tom Kavanaugh - Said that Board has no control over staff ' s use of eminent
domain to threaten landowners. He related his personal dealing with
staff regarding giving some land to the District. He said staff had
requested they contribute $50 , 000 . Said that the Board was not going
to do anything to work cooperatively with landowners , adding that if
they did, the District ' s lobbyist in Sacramento would protect them.
85-09 Page Five
C. Britton - Responded by saying that the balance of Mr. Kavanaugh' s prop-
erty was to be developed, the dedication area consisted of 4 to 5 acres
of wetlands that had accumulated a lot of trash and that staff felt if
MROSD was to take over the area that $50 , 000 would endow the additional
maintenance costs.
Bob McKim - Asked the Board about fair market value, noting it was when
a willing seller is paid the price the seller and buyer agree upon.
He asked how long fair market values could be maintained as truly fair
as the District acquires more land.
Jean Rusmore - Said how appreciative she is for thousands of acres pur-
chased by MROSD for open space and that she felt land values have been
enhanced for property near MROSD lands.
Charles Touchatt - Said he was very much in favor of open space, but ques-
tioned how much more open space is needed.
Robert Fisse - Responding to H. Turner' s statement that further acquisitions
will be limited, said that he felt the District had been expanding its
acquisition periods over the years.
Richard Bullis - Said that MROSD runs on a capitalistic system, and ques-
tioned if it is wrong to make a profit on one' s land.
Imraan Aziz - Said he was from Canada, that everything in this area seems
to be becoming urbanized , and that open space is important so people
have a place to go for enjoyment.
N. Hanko - Responding to Mr. Fisse' s comment regarding land acquisition
said that there is no adopted policy stating the District would only
acquire land during its first ten years of existence. She said that
when the District was formed there was an informal agreement with the
Board of Supervisors of Santa Clara County that only 5% of the
District' s fund would be used for development initially so that it
was clear to everyone that MROSD was in the open space acquisition
business.
K. Duffy - Said that she applauded private open space and that, in some ways,
it was a means whereby MROSD could save money. She said people could
work with POST or the Trust for Public Land as well. She said the
capitalistic system does not guarantee that the investments you make work
out, and that after MROSD purchases land, the fair market value of
surrounding lands probably does increase. She said the law of eminent
domain can resolve, through the use of a third party, situations where
there may be a willing seller asking an "unwilling" price.
E. Shelley - Said he believes that governmental agency purchases cannot
be used for establishment of fair market value. In response to Mr.
Fisse' s question of acquisition and development policy over the District ' s
first 10 years , he said that over the last 5 years the land management
budget has gone up more rapidly than the entire budget itself. He said
MROSD has been developing its lands and it will continue to do so.
Paul Storaasli - Said that certain landowners had gone through various
eminent domain issues with Castle Rock and Golden Gate National Recrea-
tion Area, and that now the MROSD was threatening them and that land-
owners are uncomfortable with this threat around them.
Page Six 85-09
N. Hanko - In response to a question from Sandra Touchatt, said she would
take into consideration established communities in policy relating to
planning areas. Directors Bishop and Turner also agreed on this con-
sideration.
Bob Piety - Said he appreciated open space, adding that private open space
should not be threatened with eminent domain.
Diana Piety - Said she enjoys open space land, but MROSD has an adverse
effect on people in Skyline area.
David Leeson - Said that he wants to determine future course of his land,
but threat of eminent domain from MROSD tells him he cannot have his
land. He said the objectives of MROSD are admirable and that he
believes they can be attained by patience and willingness to work with
people and without using power of eminent domain.
Richard Bullis - Discussed use of comparable sales between owners and MROSD
and how they are used in eminent domain process.
Betsy Crowder - Said that all governmental agencies have the power of
eminent domain and that MROSD is a much more responsive agency than
larger agencies in area.
Procedures in Implementing Amendments to Brown Act Regarding Closed Session
Discussions of Property Negotiations
S. Norton - Gave a summary of the 1984 legislation pertaining to the Brown
Act. (1) if public agency wishes to discuss acquisition in Closed
Session, has to announce in public session name of property owner and
location of property, (2) MROSD did map of sphere of influence and
indicated those properties it thought it might some time wish to dis-
cuss in Closed Session, (3) MROSD did not aspire to acquire all listed
properties (this is what has caused concern to land owners) .
K. Duffy - Said that small parcels indicated by asterisk, not named or
listed, would have to be announced in public session if to be dis-
cussed in Closed Session.
George Dueker - Said he had lived in vicinity of area of parcels 84 and 83
on Master Plan overlay for 31 years and since this is a developed
community of 18 homes, he was requesting that a property line be drawn
around these parcels and that they be excluded from MROSD list.
R. Bishop - Said he thought the suggestion was very good and that it would
be considered. List was not put together to threaten people and list
should be modified or done away with completely. Must address how
we can carry out function of meeting with staff for land acquisition.
We do control our staff by having meetings in Closed Session to give
them direction.
H. Turner - Said he also would give thought and consideration to Mr. Ducker' s
request. He said he believes MROSD acts in good faith both in the
spirit and the letter of the law. We did not forsee fear that arose,
and we would have acted differently if we had forseen fear. The task
before Board now is to eliminate that fear.
85-09 Page Seven
E. Shelley - Said policy of excluding areas makes sense but first must
work out policy for use of eminent domain.
K. Duffy - Fear of eminent domain is basic fear, consideration of eminent
domain is an exemption to Brown Act. First task is to establish policy
on use of eminent domain to allay fears that have arisen.
Sandra Touchatt - Said Board was completely out of line in putting names
of Portola Heights land owners on list; the value of their land has
been devalued.
Beez Jones - Asked for clarification of how particular acquisition becomes
an eminent domain case.
S. Norton - Explained in detail the legalistic aspect of the eminent domain
process.
K. Duffy - Explained that without list and without Board having discussed
possible acquisition with staff, staff would be discussing possible
acquisition and if they found themselves at an impasse and considered
the property of great importance to the plan, they would come to the
Board in Closed Session and recommend that the Board consider using the
eminent domain process to obtain the property.
Janet Schwind - Representing South Skyline Association asked that list be
withdrawn, adding, however, that staff must not stop communicating with
Board about potential acquisitions. She said the Association asks that
the District: "l) honor the public ' s right to know, 2) allow Directors '
input on potential acquisition, 3) protect the seller ' s right to privacy
when desired, 4) not jeopardize the property rights of the 'whole' to
protect the few. " She said that if MROSD firmly adopted the "willing
sellers only" policy, the list would be almost innocuous , recommended
the Open Meeting Laws pamphlet be read, and asked how many owners wish
their privacy in land negotiations be honored.
C. Britton - Said that approximately 50% of property owners who want to
sell property to DIROSD do not want their name announced while negotia-
tions are being conducted.
Charles Touchatt - Said that there must be a reasonable list of property
owners with whom MROSD are negotiating or with whom they anticipate
negotiating and that it was absurd to put everyones name on list and
consider that as complying with the Brown Act. He said the Brown Act
states "timely" notice is required.
Tom Kavanaugh - Requested that at the next meeting a copy of the Brown Act
be available for everyone. He said that the listing of property owners
was poorly done, an insult to public, and that names were incorrect.
He said that names should be clarified and parcel numbers should be
included. He said agendas should list the names of property owners
to be discussed in Closed Session, as well as litigation cases and
lawsuits. He requested that MROSD help pass legislation that anyone
violating the Brown Act would be penalized.
S. Norton - Said the law currently states that if anyone knowingly violates
the Brown Act they are subject to a misdemeanor.
Page Eight 85-09
Candace Stone - Asked why there was a need to discuss acquisition of land
in private since it will eventually be presented at a public meeting.
E. Shelley - Said there are two ways to handle acquisition: one is for the
staff to act on its own and then bring proposed acquisitions to Board
at public meeting or a far better way is for Board to have discussions
with staff in Closed Session. He said many land owners do not wish
their intent to sell to MROSD to be made public until negotiations are
completed.
David Leeson - Stated that the District should do what the Brown Act says.
He said since the list exists, it can never be taken away or reversed.
He said that since MROSD is a public agency using public money, it must
announce a seller' s name publicly, that the District should endeavor to
find out what other public agencies do, and that MROSD should not
accommodate people who want to negotiate privately.
Hildegard Johnson - Said that since MROSD had become such a powerful agency
it was time for public to sit in on Closed Sessions. She said she did
not trust any of the Board members.
S. Norton - Said that State law does not allow members of the public to sit
in on a Closed Session of a public agency.
William Obermayer - Said that his name could never be removed from the
list since the list exists, that the only things that need be discussed
in Closed Session are price and terms; and that the public has the right
to know what is being discussed. He said MROSD should send an apology
to everyone on the list, and that since MROSD has no Master Plan, no
one knows what lands the District plans to acquire.
Richard Bullis - Recommended that MROSD send letters to everyone on list
in order to comply with the Brown Act and that Board seek an independent
body (e. g. , District Attorney of Santa Clara and/or San Mateo County)
to write how MROSD should implement the Brown Act.
H. Turner - Said it was in public interest to meet in Closed Session to
instruct negotiators on land acquisition matters. He presented two
possible solutions on instructing negotiators: 1) create a land acqui-
sition committee of 2 or 3 Board members , meet in private to discuss
and then present in public to full Board for final decision; and 2)
allow staff to negotiate, buy an option for minimal amount of money
and then present the matter to the full Board.
N. Hanko - Said that, as a member of Legislative Committee, she would like
this Committee to deal with the problem and effect changes in the
Brown Act. She said the listing of property owners should be withdrawn
and staff should work on other methods of implementing the Brown Act.
She said she likes H. Turner' s idea of buying options.
C. Britton - Said he would contact other agencies to inquire how they are
complying with the Brown Act.
E. Shelley - Said that, at the moment, he proposes that the listing of
property owners should remain, but reasonable and workable ways to
reduce the size of the listing should be found. He said he felt a
clear policy on use of eminent domain is best way to reduce the impact
of the listing.
85-09 Page Nine
K. Duffy - Said she agreed to accept the current listing because she felt
that a limiting list would really be threatening. She said that she
believes some rural community areas could be removed from list, that
the Board is not using the list to hide behind; and that negotiations
are complex and the Board does give direction to staff in Closed Session.
Tom Williams - Said he felt that the listing used to comply with the Brown
Act has been a disaster.
David Leeson - Feels that list does not meet requirements of Brown Act
and said people on list should be notified and given the opportunity
to have their names removed- He said he would like his name removed
from listing unless MROSD intends to negotiate with him.
Paul Storaasli - Asked, if one' s name is not currently on list, could a
person have the option of asking to have their name put on the list some
time in the future.
K. Duffy - Said that, as list exists now and if nothing were changed, there
would be an opportunity to update or add to listing or remove name from
listing as the Board felt appropriate. She said she believes that
things will change.
E. Shelley - Said he disagreed with the suggestion of announcing what land
negotiations are to be discussed at each public meeting because some
individuals do not want their discussions public knowledge until the
negotiations are completed.
H. Turner - Said that he had another option to add to his ideas regarding
the Brown Act: withdraw the listing and announce prior to each Closed
Session the names of those acquisitions going to be discussed. He
said this could be risky process (pay higher prices , some people would
not want to deal with MROSD under these conditions, and possible third
party competition) . He suggested this latter process be tried for a
year and then evaluated.
Written Comments Received During Meeting
Richard T. Mork - "The first time I heard the words 'green-belting' was
almost twenty years ago in Germany outside Hanover when I questioned how
it was possible to have so much open space in close proximity to a dense
urban area. I thought then how wonderful it would be if such a concept
were possible in the U.S.A.--especially in my home, the S.F. Bay area.
Since then, through MROSD, that concept has begun to become a reality.
I strongly support the work and policies of MROSD , and urge their continua-
tion. I hope the Board will continue an aggressive policy of land acquisi-
tion for the benefit of all the people of the greater Bay area and their
children, and their grandchildren; and, for the Board not to succumb to the
special interest pressures of individual land owners trying to block the
green-belting process for short term interest or gains. "
The Board scheduled a third public workshop for Saturday, May 4 beginning
at 9: 00 A. M. at a location as near as possible to the location of the
April 17 Workshop.
Jean H. Fiddes , District Clerk
Cecilia A. Cyrier, Secretary