HomeMy Public PortalAbout19860115 - Minutes - Board of Directors (BOD) Meeting 86-02
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MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
375 DISTEL CIRCLE,SUITE D-1,LOS ALTOS,CALIFORNIA 94022
(415)965.4717
SPECIAL MEETING
BOARD OF DIRECTORS
JANUARY 15, 1986
MINUTES
I. ROLL CALL
President Edward Shelley called the meeting to order at 7: 40 P.M.
at the City of Menlo Park Council Chambers, 701 Laurel Street,
Menlo Park, California.
Members Present: Katherine Duffy, Daniel Wendin, Teena Henshaw,
Edward Shelley, Nonette Hanko, and Harry Turner. Richard Bishop
arrived at 8 :40 P.M.
Personnel Present: Herbert Grench, Craig Britton, David Hansen,
Mary Hale, Jean Fiddes, Stanley Norton, and Joan Combs.
II. BOARD BUSINESS
A. Consideration of Draft Policies and Alternatives Regarding
Use of the Power of Eminent Domain
1. Presentation by Committee
E. Shelley explained the procedural process to be followed
during the meeting, and turned the meeting over to D. Wendin to
give the Eminent Domain Committee report and chair the rest of
the session.
D. Wendin reviewed the suggested policy under discussion, noting
that it was the result of the last meeting of the Eminent Domain
Committee, working with the results of the questionnaire answered
by Board members. He stated that there had been general con-
sensus on most aspects of the policy, except for three items
noted on the first page of the report.
D. Wendin reviewed item 10 - Definitions, noting that some of
the features of the policy depend on an understanding of the
definitions. He further explained the following definitions:
a. Improvement. D. Wendin said this definition was particu-
larly important because the policy clearly states that
improved property that is not subdividable will not be
subject to eminent domain, except for trails.
e. Institutional or commercial ownership. D. Wendin stated
that another area of concern to the public and the Committee
was to distinguish institutional and commercial ownership
from other kinds of ownership. He said the Committee felt
that it had achieved a workable definition of family
corporations.
Herbert A.Gmnch,General Manager Board of Directors:Katherine Duffy,Nonette G.Hanko,Teena Henshaw,Richard S.Bishop,Edward G.Shelley,Harry A.Turner,Daniel G.Wendin
Meeting 86-02 Page two
D. Wendin said there were parts of the policy which
attempt to establish some standard before the Board can
act, and noted definitions f and g address the issue of
areas clearly threatened by development or degradation
of resources.
He noted the policy was organized with a general preamble
stating the District' s overall intentions. He said the
concept of the policy was that eminent domain would be used
only in the District' s planning areas and only when other
attempts at negotiations have failed.
D. Wendin reviewed the proposed policy, noting that it was
divided into a number of sections, with each numbered
paragraph covering a different subject. He noted that
in paragraph 2 concerning unimproved, not subdividable
property, there had been no consensus among the Board
members in response to the questionnaire. He said the
main problem was that developed communities, particularly
in the Skyline area, had not been properly addressed in
the District' s Master Plan. He stated that additional
study by staff would be necessary in order to establish
standards to identify properties that will not be subject
to eminent domain.
He noted that paragraph 3 raises the issue of existing
improvements and other structures, and said that the
Committee recommended language which would carve out
those improvements and establish the standard of requiring
clear threat of development or degradation of natural
resources. He noted discussion of the optional language
in the paragraph was necessary to decide whether or not
that standard applied in any different way to institutionally
or commercially owned land.
D. Wendin stated that in paragraph 4, (Unimproved, sub-
dividable property) , there was generally a clear consensus
by the Board to retain the right of eminent domain, but
only when there is a clear threat of development or
degradation of natural resources. He said the Board must
decide if this exception applies to institutional or
commercial entities.
D. Wendin stated there was a clear consensus of the Board
to retain eminent domain rights for trails, subject to the
constraints itemized in paragraph 5.
D. Wendin stated the Committee recommended retaining the
right of eminent domain to perfect rights in an existing
road for patrol purposes as stated in paragraph 6.
D. Wendin said the question of publicity raised in para-
graph 8 would receive more discussion later in the meeting,
noting that a separate report from staff concerning
publicity had been discussed at the January 8 Board meeting.
He noted it had been established that there is no practical
method for reaching all the property owners in the District' s
planning areas.
D. Wendin stated that more discussion was necessary con-
cerning paragraph 9 (Eminent Domain Exemption Contracts) ,
noting that there had not been a clear consensus by the
Meeting 86-02 Page three
Board on whether or not such contracts should exist, and
if so, work would be needed on the format.
N. Hanko suggested discussing the individual items, deferring
discussion of paragraph 8, Publicity, to the end of the
meeting. D. Wendin stated the public would have an oppor-
tunity to comment on this item after the other items had
been discussed by the Board and public.
N. Hanko said she would be in favor of inserting the
optional language regarding institutional and commercial
entities into paragraphs 3 and 4.
In response to a question from H. Turner concerning the
optional language, D. Wendin said that the Committee used
this as a method of encouraging private open space, and that,
as long as major properties were not threatened by develop-
ment, they would not be subject to eminent domain. He
noted the exception for institutional and commercial
entities was suggested by the Committee because these
entities frequently hold property for development.
T. Henshaw thanked the Committee for its work during the
past year, and said she would not vote for the use of
eminent domain to secure land for trail completion.
Discussion centered around the distinction between industrial
and commercial ownership and family ownership holding land
for open space. D. Wendin stated that the Committee felt
the Board might wish to retain the right of eminent domain
without defining clear threat of development in these
particular situations.
D. Wendin stated that he supported having the policy
address trails and trail connections as a needed safeguard,
but did not support including the optional language in
paragraphs 3 and 4.
K. Duffy said that she supported dropping the optional
language as long as additional wording was included in
definition f relating to partnerships or institutions
involved in land speculation.
2 , Public Comment
D. Wendin opened the meeting to public discussion.
J. Fiddes read a letter from Hans Moravitz, President of
Committee for Green Foothills, supporting the District' s
efforts to clarify its eminent domain policies, encouraging
the District to retain the policies necessary to protect
larger parcels from development, and urging the District to
maintain the flexibility necessary to complete trail systems.
Janet Schwind, representing South Skyline Association,
distributed a chart clarifying the Board' s eminent domain
policies, and said the outcome of a year of dialogue on
eminent domain has resulted in an improved relationship
between the District and public. She said the Association
could not endorse the Board' s eminent domain policy be-
cause of the proposed policy relating to trails.
Meeting 86-02 Page four
Ed Vallerga, 950 Purissima Road, Woodside, urged that a
mailing list be created for those indicating interest in
the eminent domain policy so that they could be notified
of any changes to the policy.
Dick Carter, 22400 Skyline Boulevard, La Honda, said the
District should clarify its relationship with other organi-
zations and zonings, such as the Timber Protection Zone,
and suggested a coordination of trail plans with the
California Recreational Trail Committee. He asked what
legal powers the District has in its Sphere of Influence.
Patrick Chambers, La Honda, questioned item 3 in the policy
and said he felt a subdivision under process should be
exempt from eminent domain. He stated he felt the wording
of item g under Definitions was imprecise and should be
clarified. He said that the use of eminent domain was
unconstitutional and anti-American.
W. J. Sorich, La Honda, said that he felt the proposed
policy was a joke, and individuals had been given nothing
from the policy.
William Obermayer, La Honda, recommended that the issue of
the use of eminent domain be put before the voters,
questioned the measurements relating to degradation of
natural resources, asked what research had been done to
determine how much open space was needed to support the Bay
Area, and questioned the District' s right to buy land
outside its boundary.
David Sutton, Half Moon Bay, thanked the District for its
timeliness in saving open space and for recognizing the
need to maintain all its options.
Dyer Stickney, Los Gatos, stated he feels the District
has abused its rights as a public agency and said he would
like to meet informally with District representatives.
Dick Bullis, La Honda, said he felt the District should
drop the whole matter of new eminent domain policies.
Larry Hassett, La Honda, said he did not think the District
needs the power to condemn land for trails, noting that
major access trails have a major impact on private property
and often change its character. He said that properties
adjoining trails have no buffer zones.
Dick Schwind, Los Gatos, urged that the table submitted by
J. Schwind be included in the final policy to help clarify
it. He also suggested that in item g under Definitions,
the five cords of wood mentioned be changed to 7% of live
timber and that the diameter of heritage trees be doubled.
Mary Childress, Palo Alto, said it was important that the
District protect and preserve open space in any way suitable.
M. Pratt, Palo Alto, asked what constituted the District' s
definition of development.
M. Steers, Los Altos Hills, said she was strongly opposed
to eminent domain.
Meeting 86-02 Page five
Beez Jones , Cupertino, said that she was opposed to eminent
domain, asked when a decision regarding the use of eminent
domain for trails would be made, advocated a designated
trail planning map, and asked how the trails would be
signed and patrolled to keep the public off private property.
D. Wendin closed public comment on this part of the
policy discussion.
3. Board Discussion and Probable Tentative Adoption of Policies
D. Wendin reviewed comments by the public and stated that
the Committee had been unable to define a standard to be
used for unimproved property that is not subdividable. He
said the Board had agreed that some standard of size for
unimproved property is important.
D. Wendin stated, in response to a question concerning the
District' s rights to acquire land in its Sphere of Influence,
that the District has the authority to acquire land anywhere.
He said subsequent policy discussion will occur concerning
land outside the Sphere of Influence, but it was a clear
consensus of the Board that the policy will apply within
the Sphere of Influence.
H. Grench responded to the question concerning the District's
relationship with the California Recreational Trail Committee,
stating that the State takes the role of coordinator, where
possible, where State lands are involved.
D. Wendin stated questions would be taken from the Board,
and suggested that the document submitted by J. Schwind
be considered to be on the table.
E. Shelley suggested that S. Norton address the questions
from the public concerning the District' s Sphere of
Influence and its possible expansion, and also the public' s
recourse to eminent domain.
S. Norton explained that Spheres of Influence were overseen
by the Local Agency Formation Commission (LAFCO) , and
the procedure for changing the boundaries of a Sphere of
Influence is usually initiated by the local agency
petitioning LAFCO. He reviewed the legal rights of land-
owners in an eminent domain proceeding.
R. Bishop noted that the burden was on the District to prove
necessity for the use of eminent domain in the context of
open space objectives, and that the property owner has the
right to contest that issue of necessity.
K. Duffy said she felt the issue of trails could be the
most delicate and troublesome, but said she did not feel the
District could give up its right of eminent domain concerning
trails.
N. Hanko thanked the members of the public and said their
ideas contributed to the District' s eminent domain policies,
and noted that part of the Master Plan revision will be
recognition of communities of existing development, and
said she expected the District would consider exempting
these properties from acquisition. She stated that an
updated Trails Master Plan would be very helpful.
Meeting 86-02 Page six
R. Bishop said that the Board has always felt that eminent
domain should be used sparingly, and that the policy has
two primary objectives: 1) to protect homeowners and 2) to
encourage private open space. He urged the Board to adopt
a change in the policy stating that the right of eminent
domain for trails would not be allowed on single family
residences on lots of 40 acres or less.
E. Shelley expressed his opposition to R. Bishop' s suggestion,
stating that it might be necessary to acquire a trail ease-
ment across an area with a large number of contiguous
developed 40 acre parcels, and stated he favored the
policy as proposed.
Motion: R. Bishop moved that the Board modify paragraph 5
of the policy to place a 40 acre limit on parcels
subject to eminent domain for trails . T. Henshaw
seconded the motion.
Discussion: E. Shelley stated his understanding of
R. Bishop' s suggestion was a modification of para-
graph 1 and that Section five be further refined
to state that all minimum-sized lots that are
improved and are less than 40 acres be exempt.
D. Wendin clarified that the motion was to modify
paragraph 1 so that the cross reference to
Section 5 only applies to properties over 40 acres.
N. Hanko spoke against the proposed amendment,
stating that a trails plan should be prepared in
order to allay most individuals' fears.
Ayes : T. Henshaw, R. Bishop, and H. Turner.
Noes: N. Hanko, E. Shelley, K. Duffy, and D. Wendin.
The motion failed to pass by a vote of 3 to 4.
Motion: E. Shelley moved the adoption of the optional
language of paragraphs 2, 3 and 4. N. Hanko
seconded the motion.
Discussion: D. Wendin stated that in paragraph 4
there was the issue of whether or not the extra
standard of clearly threatened by development or
degradation of natural resources should apply,
and in paragraph 2 , there was an additional question
as to whether or not commercially owned property
would be exempt at all. He stated he felt these
two items should be merged in paragraph 3, since
the carve-outs were addressed, but not the
application of the standard.
T. Henshaw said she thought the optional language
made the policies more confusing.
D. Wendin stated he would prefer to vote on the
paragraphs separately, since he could support
the optional language in paragraph 4, but felt its
addition to paragraphs 2 and 3 could be creating
mischief.
Meeting 86-02 Page seven
E. Shelley withdrew his motion with N. Hanko' s
consent.
Motion: E. Shelley moved that the optional language in
paragraph 2 be adopted. N. Hanko seconded the
motion.
Ayes: R. Bishop, E. Shelley, and N. Hanko.
Noes: T. Henshaw, H. Turner, D. Wendin, and
K. Duffy.
The motion failed to pass on a vote of 3 to 4.
Motion: E. Shelley moved that the same effective language
as is presented as an option in paragraph 4 be
included in paragraph 3, that is, not requiring
finding of a clear threat of development. H.
Turner seconded the motion.
Ayes: N. Hanko, E. Shelley, R. Bishop, and D. Wendin.
Noes: K. Duffy, H. Turner, and T. Henshaw.
The motion passed 4 to 3.
Motion: E. Shelley moved that paragraph 4 be amended to read:
"Eminent domain may be used to acquire all or any
part of an unimproved property which is susceptible
to futher subdivision. " H. Turner seconded the motion.
Discussion: D. Wendin said he opposed the motion,
as he felt it was important that the Board be
clearly on record as supporting private open space.
R. Bishop, N. Hanko, and H. Turner supported D.
Wendin' s statement.
E. Shelley said he felt the District 's right of
eminent domain was not a threat to individual
homeowners and cited the Hosking grant application
situation as an example.
Ayes: E. Shelley.
Noes: R. Bishop, D. Wendin, H. Turner, K. Duffy,
T. Henshaw, and N. Hanko.
The motion failed to pass 1 to 6.
Motion: D. Wendin moved that the optional additional
language be included in paragraph 4. E. Shelley
seconded the motion.
Discussion: H. Turner spoke against the motion,
citing the Djerassi Foundation property as an
example.
Ayes: N. Hanko, E. Shelley, D. Wendin, and R. Bishop.
Noes: K. Duffy, T. Henshaw, and H. Turner.
The motion passed 4 to 3.
D. Wendin said he felt the eminent domain exemption contract
no longer served the purpose for which it was intended,
since the District retained its right of eminent domain
for trails. He noted that the legality of the contract
had also been questioned.
Meeting 86-02 Page eight
Motion: D. Wendin moved the deletion of paragraph 9 from
the policy. R. Bishop seconded the motion. The
motion passed 7 to 0.
H. Turner noted the reference to eminent domain exemption
contracts in the third paragraph of the preamble. D. Wendin
stated the Board' s consensus that the reference be eliminated
in the preamble.
Discussion centered on private open space preservation and
the possible elimination of eminent domain proceedings
when open space easements assure open space. N. Hanko
suggested including the concept of private open space in
the Good Neighbor Policy.
D. Wendin stated some follow-up work on the subject was
necessary for the Committee and staff, including the
adequacy of the five cords of wood standard and the
definition of heritage trees.
Discussion centered on the language of definition g
concerning degradation of natural resources. E. Shelley,
R. Bishop, and H. Turner noted that the attempted precision
of the definition may be too restrictive and should be more
general, noting that, at some point, a judgement call is
required. D. Wendin stated the Board' s consensus that its
goal is to give a clear standard that is less specific, but
still a clear statement of what constitutes a threat.
D. Wendin summarized the Board' s instructions to the Eminent
Domain Committee. He stated the Committee was to return with
the third (final) sentence in paragraph 2 deleted from the
document; incorporate into paragraph 3 the language that
appears in paragraph 4 as an optional addition, as well as
incorporate the optional language at the bottom of paragraph 3;
delete paragraph 9 and make the necessary change in the
third paragraph of the preamble; refine definition g; and
receive suggestions to more clearly define "private party"
in definition e. H. Turner was to suggest wording for the
latter item that he felt would be appropriate.
D. Wendin stated he felt a multi-part publicity plan was
needed. He proposed the word "all" be struck from the
end of the second line in paragraph 8 and recommended the
Committee be directed to come up with a statement that
would give specific notice to members of the public who
have asked to be notified, to owners of property greater
than some size, to homeowners associations, to cities,
to other organizations having a continuing interest in the
District, and to the Open Space newsletter mailing list,
and via an appropriate press release.
D. Wendin opened the meeting to public comments concerning
publicity.
Charles Touchatt, Portola Heights, thanked the Board for its
efforts, noting that he disagreed with some portions of
the policy.
William Obermayer requested that all property owners
within the Sphere of Influence be notified.
Janet Schwind suggested that copies of the policy be given to
homeowners ' associations for distribution to their members.
Meeting 86-02 Page nine
Motion: D. Wendin moved that the word "all" be deleted
from the second line in paragraph 8 and that the
Committee be directed to establish some minimum
publicity plan for the eminent domain policy.
N. Hanko seconded the motion. The motion passed 7 to 0.
Motion: R. Bishop moved that the Board tentatively adopt
the policy, including the amendments, and refer it
to the Committee for revisions before the policy
is returned to the full Board for final adoption.
T. Henshaw seconded the motion.
Discussion: R. Bishop stated the intent of his
motion was for the Board to consider for final
adoption the policy after the Committee had com-
pleted the clarification requested and then have it
return for adoption in ordinance form.
E. Shelley spoke against the motion, recommending
adoption by motion now and later adoption by
ordinance, noting the latter would adequately
serve as a second reading.
Motion to Amend: D. Wendin moved to amend R. Bishop' s
motion to drop the word "tentatively" . E. Shelley
seconded the motion.
Discussion: H. Turner asked Legal Counsel for a
determination of the appropriateness of adopting
the substance of the policy, noting the agenda had
stated "probable tentative adoption" . S. Norton
stated that the statement on the agenda did not
preclude adoption of the substance of the policy
at this meeting.
T. Henshaw called the question.
Ayes : K. Duffy, D. Wendin, E. Shelley, H. Turner,
and N. Hanko.
Noes: T. Henshaw and R. Bishop.
The motion to amend passed 5 to 2.
The motion as amended to adopt the policy passed 7 to 0.
D. Wendin said the Board needed to give instructions to
the Committee on the balance of the policies, including
the Brown Act.
T. Henshaw suggested that staff be asked to check past
minutes for previous directions to the Committee and that
the matter be placed on the January 22 agenda for con-
sideration. D. Wendin stated concurrence of the Board.
III. ADJOURNMENT
The meeting was adjourned by E. Shelley at 10:48 P.M.
Joan Combs
Secretary