Links within this web page:
December 15,1997 PRA request to County Executive
December 19,1997 letter to Planning Director
re MacKay & Somps report
January 2, 1998 PRA followup
request to County Executive
January 9, 1998 letter to
Planning Director re guidance package
January 12, 1998 letter to Board of Supervisors
January 14, 1998 testimony to Board of
Supervisors
January 15, 1998 letter from County Counsel
expressing "regret"
January 15, 1998 follow-up letter to Board
of Supervisors
January 17, 1998 letter responding to
Counsel's letter of January 15
January 21, 1998 letter from County Counsel
January 23, 1998 letter from County Counsel
February 12,1998 letter to Board of Supervisors
March 3, 1998 Sacramento
Union "Bribery's destructive toll"
March 5, 1998 Rio Linda
Elverta News "County Community Plan Debacle"
March 9, 1998 letter
to Board of Supervisors
In 1997, during the contentious Rio Linda Elverta Community plan process, the County agreed to accept funding from the developers who wished to develop the location now known as the Elverta Specific Plan area. Ultimately, I proved that the developers didn't pay their bills as agreed, and that Planning was not above suspicion. However, my research and complaints were ignored.
Having no luck in obtaining financial information informally from Planning, I filed a Public Records Act demand on the County Executive on December 15, 1997. I personally delivered the letter, and was furnished a copy "stamped in" by the County Executive Office. Copies were sent to all members of the Board of Supervisors and to the District Attorney.
I sent a letter to the County Planning Director on December 19, 1997. The letter discussed a report presented to the Board of Supervisors on December 10, 1997, during the Planning staff presentation, that I found to be riddled with errors. This letter is included here to provide the reader with some background on the issues at hand.
As I received no response to my Public Records Act request within the prescribed 10 days, I filed a follow-up with the County Executive on January 2, 1998, again with copies to the Board of Supervisors and the District Attorney.
I received "off the record" personal advice that Planning's position was to ignore me and "let him sue".
On January 9, 1998, I sent a letter to the Planning Director asking for a document called the "Guidance Package" that I wished to review prior to the next Board of Supervisors meeting. This was the "Guidance Package" for the Community Plan.
With no response to my PRA request, I delivered a letter on January 12, 1998, to the Board of Supervisors recapping the issue and including copies of my Public Records Act request and followup. Including attachments, the letter was 17 pages long.
On January 14, 1998, I testified at a Board of Supervisors meeting. I referred to my letters and to my unfulfilled Public Records Act request. Deputy County Counsel Karin Schwab advised the Board that they must comply with my Public Records Act demand.
County Counsel sent me a letter on January 15, 1998, regretting the lack of response to my requests. Counsel's letter included copies of my December 15 and January 2 requests.
On January 15, 1998, I sent a follow-up letter to the Board of Supervisors, with a copy to County Counsel. Counsel responded on January 21, 1998. Counsel's letter included a copy of my January 15 letter. Counsel detailed the information that would be made available to me, referenced as "at least three full file drawers, three file boxes, two binders and five file folders" (no mention was made of any partridge in a pear tree) and the process to be followed to obtain the information.
I responded to Counsel on January 17, 1998. Counsel's January 23, 1998, letter included a copy of my January 17 letter.
Public testimony was closed on the Community Plan, and I was not allowed to testify further. My letters to the Board on February 12, 1998 and March 9, 1998, outline my inability to give testimony and include my conclusion that the Board violated the law.
In retrospect, I should have taken both the PRA and the Community Plan finance issues to a Grand Jury in 1998. However, I was just "burned out" by the County. It seems as if they have no intention of following the law. Any law.
Jay O'Brien
December 19, 1997
Mr. Thomas W. Hutchings
Director, Planning and Community Development Department
827 Seventh Street, Room 230
Sacramento, CA 95814
Re: MacKay & Somps report presented December 10, 1997
Dear Mr. Hutchings,
Mr. John Hodgson and Mr. Les Clark distributed and presented a multi-colored report to the Board of Supervisors during the December 10th hearing on the Rio Linda and Elverta Community Plan Update. Their presentation followed a staff presentation from the Water Resources Division and preceded a staff presentation from the Planning and Community Development Department. Public Testimony then followed.
The report was presented to respond to Board concerns, especially that expressed by Supervisor Collin at the last hearing October 29th, to wit "I question that, over just six or seven thousand units, what it'll buy. Maybe I'm just skeptical, but I don't think it's going to buy anywhere near what the community thinks it's going to buy. There's my skepticism". The report was prepared and presented by the applicant, at no cost to the County other than the staff time expended in meetings with the applicant. MacKay and Somps clients in this matter are the developers, not the County, as confirmed by Mr. Les Clark of MacKay and Somps.
It was your plan, as you expressed it to the Board, to close public testimony on December 10th. The Board, however, in response to requests from Mrs. Chris Quackenbush and Dr. Paula Parker, agreed to allow additional public comments at the next hearing on January 14th, with those comments limited to the new material presented on December 10th by the applicant and in other testimony. I wish to comment at the next meeting on the applicant's report, and I am attempting to understand what is presented in the report. I cannot realistically comment on the conclusions of the report until I understand what data, assumptions and calculations are contained in the report itself.
The report was prepared and presented by the applicant at no cost to the County. As it was included during your staff portion of the hearing, your staff certainly has verified the accuracy and competency of the report, since it was not prepared in house. I ask for your help in sharing the results of your staff analysis with me so that I may proceed with my review and continue to prepare my comments for the next Board of Supervisors hearing.
As I understand the report, figure 1 states the number of residential dwelling units and floor space area of non-residential uses for three levels of buildout for each of five land use alternatives. In addition, the same information for the applicant's 1593 acre Specific Plan known as "Elverta Villages" was added to the report at your staff's request during the week before the presentation to the Board. The engineering process used to create the report, a "spread sheet" was used to multiply the usage figures in figure 1 by the fee rates shown in figure 3.b, with the summations of those calculations producing figures 4, 5, 6, and thus the colored bar charts and figure 2. A "stealth" or "unstated" factor was also used for some of the calculations.
There are three basic assumptions which are not stated in the report but are critical to the calculations. As figure 1 does not include actual land area values for the non-residential uses, "stealth" conversion factors were applied to the applicant's report by MacKay and Somps to obtain the acreage values used in the computations. I have determined through analysis that the applicant assumed that new commercial land use would average floor space equal to 25% of the land area, each new Business/Professional land use would average 30% of the land area, and each new Industrial use would average 40% of the land area. These stealth factors seem to be used by the applicant in those calculations that I can verify, but as the applicant's assumptions are not delineated, I am not sure that the applicant applied them uniformly to those calculations I feel are in error.
The stealth conversion factors described above agree with the "FAR Assumptions" in the 23 page "Revisions to the February 10, 1997, Rio Linda-Elverta Financing Analysis; EPS #4139" document prepared by Economic & Planning Systems (EPS) dated November 26, 1997, received by your department December 3, 1997. The revised EPS report has not been distributed to the CPAC or to other non-applicants. It appears to me, however, based on the exact values used, that the applicant had access to these "FAR Assumptions".
The first three fee categories shown in figures 4,5,and 6 are Sewer, Water and Drainage. I cannot make the subtotals for all of the permutations of these three categories agree with what I understand to be the raw data used to produce them from figures 1 and 3.b and the stealth factor. At first I thought there was a simple typographical error, then I thought there was a lack of understanding of the spread sheet process. I now conclude that it is much worse than that. The basic financial logic appears to be flawed. I conclude that either MacKay and Somps is inexperienced in the use of their spread sheet program, has input incorrect data, or I am incorrectly applying the data contained in the report.
As this report was produced by a Civil Engineering firm,
the internal calculations should be exact, as calculations are applied
to data to produce results. The results of the calculations detailed
in figures 2, 4, 5 and 6 of the applicant's report are shown to a precision
of one dollar, thus a like computation accuracy is expected. This does
not appear to be the case in this example, however, and I cannot trust
ANY of the calculated data in the applicant's report until I can be shown
my errors in analysis. The actual number of dollars involved is not
important as the errors are indicative of the accuracy of the hundreds
of computations not reviewed.
An example of an apparent engineering logic error is
the reversed relationship of the drainage fees shown in figure 4 for Alt.
A and Alt. D; Alt. D is $7071 more than Alt. A. Figure 1, however,
shows the only difference between them to be the 10000 square feet of Business/Professional
use that is present in Alt.A and not present in Alt D. I feel that
Alt A should be $8081 more than Alt. D, not $7071 less as shown in the
applicant's report. The same problem exists in the Sewer CSD1 calculations
but is not present in other calculations which show Alt A fees higher,
as expected.
An example of an apparent calculation error is in the "Probable" and "Probable (High)" calculations for Alt. C and Alt. G. The CSD1 trunk, SRCSD, and drainage fees seem to be overstated. The apparent overstatements seem to be the same in Alt. C as in Alt. G. Note that the "Maximum" calculations for these seem to not be in error and exactly follow the process described below. To calculate SRCSD, forexample, the following products are summed:
In conclusion, my examples cite apparent errors by the applicant's engineering agent, MacKay and Somps, in logic, algorithms and calculations. If my conclusions are accurate, it also shows the failure of MacKay and Somps to perform a "sanity check review" on their finished product.
A "sanity check" would certainly have also found the "Region" error in Figure 5 that should have said "Master Plan Dev",and the "Busines [sic] Park" in figure 3.b that should have said "Business and Professional Office". Certainly these errors are technicalities, but in my opinion they are indicative of MacKay and Somps' attention to technical details.
Further, the applicant's report was incomplete as it did not disclose the stealth assumptions used to convert floor space to land area. Mr. Clark told me that they are very proud of their work, and perhaps you can validate his pride and help me to see how it is me that is in error, not MacKay and Somps.
It is indeed fortunate that the report was furnished by the applicant at no cost to the County, because if my conclusions turn out to be correct, I would be pressing you to obtain a refund from MacKay and Somps.
It is my observation and conclusion that the applicant rushed the subject report to the Board of Supervisors hearing under the assumption that it would be presented without the opportunity for the public to review and comment. Fortunately the Supervisors recognized the need for the public to be able to comment on the applicant's report, thus affording me the opportunity to review it with them in detail. I appreciate their consideration.
Your prompt assistance in resolving this issue will be appreciated. I expect a timely response that will allow me time after its receipt to prepare testimony for the January 14th hearing.
Thank you,
/s/
Jay O'Brien
cc: Supervisors Collin, Cox, Dickinson, Johnson, Nottoli
Mrs. Chris Quackenbush, Dr.
Paula Parker
Mr. Robert P. Thomas
County Executive, Sacramento County
700 H Street
Sacramento, CA 95814
Re: Requests for information dated December 15, 1997
Dear Mr. Thomas,
On December 15, 1997, your office received a letter from me containing two requests filed in accordance with the California Public Records Act, Government Code Sections 6250-6270.
My requests are for information about the financing of the Rio Linda - Elverta Community Plan. A copy of the subject December 15, 1997 letter of request is attached.
My understanding of the California Public Records Act is that you must determine within 10 days after the receipt of my request whether or not to comply with my request and that you must then immediately notify me of your determination and the reasons for your determination.
I have received no response of any kind to my letter of request that you received on December 15, 1997.
In accordance with the California Public Records Act, please respond to my December 15, 1997 letter of request.
Thank you,
/s/
Jay O'Brien
Rio Linda Elverta Community Protection Task
Force
attached: Correspondence Dec.15, 1997, O'Brien to Thomas
cc: Supervisors Collin, Cox, Dickinson,
Johnson, Nottoli
Jan
Scully
Chris
Quackenbush
Dr.
Paula Parker
Mr. Thomas W. Hutchings
Director, Planning and Community Development Department
827 Seventh Street, Room 230
Sacramento, CA 95814
Also sent via fax to 874-6400
Re: Guidance Package for Rio Linda and Elverta Community
Plan Update
Dear Mr. Hutchings,
At the December 22, 1993 meeting of the Board of Supervisors, you made the following statement to the Supervisors with reference to the proposed "restart" of the Rio Linda and Elverta Community Plan Update: "There is included in our proposal a new concept the board probably has not seen. And that is the development of a guidance package. It's something that we are proposing for all of the new specific plans as well, and that is basically a document that identifies roles and responsibilities of the various parties involved including property owners, CPAC members, staff, public. I think in response to one of the comments about having the negotiations be open to public scrutiny, I think that's the appropriate vehicle to resolve those issues. Clearly, any of the documents that are prepared would be available for public review and comment before the board adopts them. But I do want to at least alert the board that we do anticipate putting together this guidance package so it's clear to all of the parties involved what the various roles and responsibilities are in this effort." The item passed, and you were to bring back completed documents and the guidance package on January 26, 1994, for approval.
Thomas Truszkowski, Senior Planner, sent a letter to the CPAC Chairperson on December 28, 1993, which transmitted a four-page memorandum from The Planning Center describing guidance packages "so that you may become familiar with this unique and useful project management tool".
On January 26, 1994, your Staff Report to the Board on the subject item stated "Planning staff, and the CPAC, will report back to the Board in mid to late February with a guidance package for Board review and endorsement". Resolution 94-0089, accepting $378,757.00 from developers to fund the Community Plan Update, passed on that date, with 3 yes votes from the 4 sitting supervisors (district 1 seat vacant, Supervisor Collin absent).
Several CPAC meeting minutes over the first half of 1994 mention the guidance package, including mention of a presentation to CPAC by consultant Julie Nauman from The Planning Center on April 7th. The last reference anyone can find is a 19 page document titled "GUIDANCE PACKAGE FOR PREPARATION OF THE RIO LINDA/ELVERTA COMMUNITY PLAN" which carries the date June 13, 1994 on the cover and 15 pages, and carries the date June 16, 1994 on two pages. The last two pages, the estimated budget and the estimated schedule, are not dated. One source of this document had noted on the cover "will be considered for final adoption on 6/30".
You said that the guidance package is "a document that identifies roles and responsibilities of the various parties involved". There are many such items identified in the copy of the guidance package that I have obtained, including commitments by staff to disseminate public information, to monitor the expenditure of funds with a "budget subcommittee" and others. I have been unable to find evidence of completion of many of these staff commitments to the Board, CPAC, and the public.
I have asked Cathy Pata and Karen Ziebron at the Board of Supervisors for a copy of the approved guidance package, and they have not been able to find it for me. Cathy Pata suggested I talk to the CPAC secretary who referred me to Dave Pevny. Dave was not aware of the Guidance Package and agreed to ask Leighann Moffitt on January fifth. Dave reported that Leighann was now on jury duty, but she agreed to "check her computer".
As the last opportunity for public comment is January 14th, and as I still do not have access to the "official" guidance package, I call upon you to assist me in obtaining a copy of this public document in adequate time so that I may review it before offering testimony Wednesday.
Please call me at 991-2010 when a copy is available for pickup and/or fax it to me at 991-1000. Alternatively, please confirm that the 19 page version I have is current.
Thank you,
/s/
Jay O'Brien
cc: Supervisors Collin, Cox, Dickinson, Johnson, Nottoli;
Dr. Paula Parker
Hon. Illa Collin, Chairman, and
MEMBERS OF THE BOARD IN SESSION
Board of Supervisors
Sacramento County, California
Dear Chairman Collin and Members of the Board,
This letter covers newly discovered problems with the Rio Linda Elverta Community Plan Update. I deem the problems extremely serious and request your attention. I have placed many details into attachments to make my main letter as brief as possible.
At your last hearing on the Rio Linda Elverta Community Plan Update, held December 10, 1997, Planning Director Tom Hutchings introduced a portion of his staff report to you as "a presentation by the applicants on infrastructure". That 31 minute presentation, given by Mr. John Hodgson and Mr. Les Clark, was followed by additional staff reports and then by public testimony. As a result of requests during that public testimony, you agreed to allow additional public testimony at your next hearing, scheduled for January 14, 1998, limited to that material presented on December 10. See Attachment A: "MacKay and Somps Report" for more details and for quotations related to the presentation of the report. The quotations are from both the October 29 and December 10, 1997, Board of Supervisors hearings.
I immediately set out to determine how the process had allowed an "applicant" for a Community Plan. Director Hutchings confirmed the relationship of the "applicant" with his staff by including the presentation during the staff portion of the hearing. Unfortunately I have not followed the process closely, and as time was of the essence, I pursued several avenues to obtain information.
My first avenue of research was to review the MacKay and Somps report. I found it to reach inaccurate conclusions. The assumptions for required infrastructure for those alternatives that do not include Elverta Villages are preposterous, for instance suggesting a $22 Million cost to serve 600 homes with water. The alternative which includes Elverta Villages appears to include "phantom" dwelling and non-residential units that inflate the estimated fee revenues. I also find it difficult to believe that Elverta Villages will actually fund transportation improvements in the City of Sacramento. Others will testify in more detail on the erroneous conclusions of the report.
I called Mr. Les Clark of MacKay and Somps. He stated that the report was provided at no cost to the County by the Elverta Villages developers, other than the cost of planning staff time during the meetings when staff provided consultation. He confirmed that Planning Staff requested that the "Specific Plan" data for Elverta Villages be added during one of the meetings. Mr. Clark confirmed that his firm's bill was to the developers, not to the County.
During our conversation, Mr. Clark made a suspicious statement to me which alerted me to perform a more thorough review of his report than I had originally planned. He said "...as much as you would like to find out, there's no sinister motive here...". My more detailed review of the report then found that pertinent factors were assumed for calculations that were not disclosed. I found apparent calculation and logic errors across the various alternatives examined by the report, and concluded that either I was in error in my analysis or that the report was seriously flawed and that all of its calculations and conclusions were suspect.
On December 22, 1997, your Planning Department received my letter of December 19, copy attached, which requests clarification on the MacKay and Somps report. My letter also includes Supervisor Collin's October 29, 1997 statement during a previous hearing which prompted the MacKay and Somps report to be prepared. My letter provides references to many suspected errors in the report. My letter asks for a "timely response" so that I may prepare testimony for your January 14, 1998, hearing. I have received no response to date.
Second, after discussing the situation with a Rio Linda attorney who suggested the California equivalent of the Freedom of Information Act, I filed an official request for information pursuant to the California Public Records Act. My request was received at the County Executive Office on December 15, 1997. The Public Records Act requires a response to me within ten days. I followed up with a reminder request on January 2, 1998. My requests ask for public documents including contracts, "arms-length" agreements, payment statements and the like which concern the $378,757.00 committed by the developers to fund the Community Plan Update. Copies of my requests are attached. I have received no response to date.
Third, I learned that the resolution enabling the "restart" of the then stopped Community Plan Update and the negotiation of the provision of $378,757.00 by developers to fund that update was passed on December 22, 1993 by the four then seated Supervisors. Your staff arranged for me to review your archive audio tape of that meeting. I heard Supervisors and the public express concern that the arrangement with the developers be at "arms-length" and open to public scrutiny. Planning Director Hutchings described a "guidance package" which was to be used "to resolve those issues". See Attachment B: A transcript of pertinent quotations from the December 22, 1993 meeting for more details. A December 23, 1993 Sacramento Bee article is attached which reports on the concern about conflict of interest and the "arms-length" arrangement.
The funding agreement was passed on January 22, 1994 by Supervisors M. Johnson, T. Johnson and Cox. Supervisor Collin was absent and there was no Supervisor seated to represent Rio Linda and Elverta. Planning Director Hutchings' January 22 staff report stated that the guidance package would come to the board in February for review and endorsement. I have determined that the guidance package, if it ever was brought to the Board for approval, was brought to you after June 16, 1994.
I have obtained a copy of a guidance package dated June 13 and June 16, 1994 that was provided to CPAC members. It includes a budget which does not track with the budget which was approved on January 22, 1994, and includes a work package similar to that approved January 22, 1994, except it is missing six pages of specifically delineated technical studies. It includes commitments from Planning Staff about a "budget committee", provision of documents and information for public access at the Community Center and to send notices of meetings to the Rio Linda News.
Mr. Truszkowski, on December 22, 1993, responding to Supervisor T. Johnson's query about community participation, said "the newspaper out in this community is very good at getting information to the broader community. We're hoping to use that vehicle to bring many people into our meetings to have those discussions". The guidance package includes a staff responsibility which implements Truszkowski's statement. I have been unable to find any evidence of completion of any of these commitments made by the Planning Department. I queried CPAC members at their most recent meeting and queried ex-CPAC members on these issues with no results.
I have been unable to obtain a copy of the approved guidance package from your staff or from the Planning department. A copy of my letter of January 9, 1998, to Planning Director Hutchings, requesting the "official" guidance package is attached. My letter was received by Mr. Hutchings on January 9, 1998. See Attachment C: "Guidance Package Review" for more details.
The fourth issue I investigated was the timing of the December 22, 1993 resolution to "restart" the Community Plan Update. After hearing Supervisor Collin ask repeatedly why the issue was before the Board and why it could not be delayed for a Supervisor to be elected and seated representing Rio Linda Elverta, I looked for an answer. The answer is found in the letter to you from Dr. Paula Parker, CPAC Chair, dated March 12, 1997. The Specific Plan Ordinance as approved contained a December 31, 1993 timeout clause which would have affected the developers ability to request a Specific Plan for Elverta Villages. That fact was not divulged at the December 22, 1993 meeting, even though the question was asked clearly. See Attachment D: "Specific Plan Ordinance Snare Language" for more details.
Supervisors, I feel like I am just scratching the surface in this matter. I suspect that if I am able to obtain the material I have requested that it will go far beyond confirming my contention that Planning has violated commitments to you and to the public that the interface with the donor will be at arms-length. Merely referring to the donor as "the applicant" and providing a 31 minute forum to you without making a similar opportunity to CPAC or to others shows clear misuse of the process and the lack of an "arms-length" relationship between the applicant and Planning.
Planning made commitments to involve the public that were not followed, not the least of which was the Director's statement on December 22, 1993 that "Clearly, any of the documents that are prepared would be available for public review and comment before the Board adopts them", certainly including the guidance package itself that was the subject of his statement. The guidance package has never been made available to the public at large for review or comment. Planning has missed its commitments to you, to CPAC, to the public and even to the developer.
I suggest that the only choice you have is to reaffirm the existing Community Plan.
I will offer testimony at the January 14, 1998, hearing
which will refer to this letter. Thank you for your attention to
my concerns.
Sincerely,
/s/
Jay O'Brien
Attachments:
LETTERS: [SEE ABOVE IN THIS WEB PAGE]
12/15/97 Letter to R. P. Thomas requesting public documents
12/19/97 Letter to T. W. Hutchings re MacKay & Somps
Report
1/2/98 Letter to R. P. Thomas re public document request
1/9/98 Letter to T. W. Hutchings re "Guidance Package"
NEWSPAPER CLIPPING: [BELOW]
12/23/93 Sacramento Bee
MEMORANDUMS: [BELOW]
Attachment A: MACKAY AND SOMPS REPORT
Attachment B: BOS HEARING 12/22/93 TRANSCRIPTS
AND EXCERPTS
Attachment C: GUIDANCE PACKAGE REVIEW
Attachment D: SPECIFIC PLAN ORDINANCE SNARE LANGUAGE
SACRAMENTO BEE 12/23/93:
__________________________________________
Stir over who pays for plan
Developers will fund Rio Linda-Elverta effort
By Bob Burns
Sacramento Bee Staff Writer
Published December 23, 1993
Thanks to an infusion of developer dollars, residents of Rio Linda and Elverta can get back to work on their long-delayed community plan.
Or no thanks, according to critics who think this new source of funding creates an obvious conflict of interest.
The Sacramento County Board of Supervisors took an unprecedented step Wednesday in agreeing to let developers and land owners pay for the community planning process in Rio Linda and Elverta that was halted 14 months ago due to county budgetary constraints.
County Planning Director Thomas Hutchings said the cost of completing the Rio Linda/Elverta community plan could exceed $300,000. Developers have previously footed the costs of specific plans, which pertain to undeveloped tracts of land, but not community plans, which address broader issues such as infrastructure, county services and water supply.
"You are setting a precedent here," said Dr. Paula Parker, chairwoman of the Rio Linda/Elverta Community Plan Advisory Council. "Once you open the door to this type of funding, every developer will come forward with money."
Each of Sacramento County's 17 community plans needs updating, but the supervisors accepted assurances from the county's Planning Department that the development community would be kept at "arm's length" during the planning process. The board has final say on whether a community plan is adopted or not.
"All last year, we heard about how Rio Linda and Elverta had been slighted in the planning process,' Supervisor Muriel Johnson said. "This is the only way we have of funding a community plan.
"If it turns out to be a bad plan, I'll vote against it. If it's a good one, I'll vote for it."
Some of the region's biggest developers - Kaufman and Broad, Granite-Power and US Homes - own property in the Rio Linda/Elverta area and are unable to build on it as long as the community plan is unfinished.
"The arm's-length transaction is the best the county can do," said Bob Bell, a Sacramento attorney representing several development interests in Elverta. "We're not particularly excited about paying for it, but that's the only we can get this going again,
Elverta resident Billie Helms agreed.
We need to get on with this program," she said. "If you don't get started, you can't get finished."
Several residents asked for a delay until District 1 elects a supervisor to fill Grantland Johnon's vacant seat on the board. If none of the six candidates in Tuesday's special election receives a majority, a runoff between the top two vote-getters will be held Jan. 25.
As a result, the board adopted the Planning Department's resolution but directed Hutchings to report back with the final documents on Jan. 26 - the day after a supervisorial runoff. But community activist Nan Pheatt still expressed disappointment with the board's decision.
"This process deserved a great deal of scrutiny, and they decided it three days before Christmas, when we don't have a supervisor," she said. "This is the kind of attitude they've had through the whole process."
Hutchings said the acceptance of money from developers will not influence the final outcome concerning land-use designations in the Rio Linda/Elverta community.
"You're' dealing with a perception issue as much as anything else,"
Hutchings said. "The perception is that if someone is paying for it, they'll
get something out of it. But the developers are taking a risk as well.
They hope it's favorable to their interests, but they don't have any guarantees."
ATTACHMENT A: MACKAY AND SOMPS REPORT
__________________________________________________
Memorandum by Jay O'Brien
A 19 page document was presented to the Sacramento County Board of Supervisors on December 10, 1997, between 5:08pm and 5:39pm By John Hodgson, a land use attorney. Les Clark, from MacKay & Somps, assisted with the presentation and handed copies to the board, to selected members of the audience, and begrudgingly gave me his "last two" copies which I gave to the Water District Manager Mike Phelan) and to the Rio Linda Elverta Community Protection Task Force President (Chris Quackenbush).
The report was included in the staff portion of the Rio Linda/Elverta Community Plan hearing. The Agenda prepared by the Planning and Community Development Department dated December 8, 1997, as distributed December 10, 1997, shows the following Agenda:
1. Discussion of Drainage Issues Raised Previously (Water Resources Division, Pete Ghelfi)
2. Any Further Board Questions on Water Supply Issues/Water Forum (Water Resources Division, Jon Goetz)
3. Infrastructure Presentation (material prepared by Les Clark, MacKay & Somps Civil Engineering)
4. Brief Presentation on Policy Plan (Planning Staff)
5. Completion of Public Testimony
6. Goal: Continue to January 14, 1998,
for Board deliberations and decision
Tom Hutchings' opening comments to the Board of Supervisors 12/10/97, on the Rio Linda Elverta Community Plan:
"Members of the board you should have
a staff report with a December eight date on it for this item.
"And let me just briefly go over the
agenda at the bottom of the first page there.
"We anticipate spending a few minutes
with a report back from Water Resources on drainage issues previously raised
related to the NMDEC.
"I don't know if there any further
questions on the water supply issues or water forum issues, but we've asked
water resources staff to be prepared to respond to those if there are further
questions from the Board.
"We're anticipating a presentation
by the applicants on infrastructure to try to clarify some of the expectations
for infrastructure financing.
"We want to make a few very brief
comments about the policy plan so that you can understand some additional
work that needs to be done on the policy plan once you have addressed the
land use issues.
"We're hoping to complete the public
testimony today and if we get through all of that our goal would be to
continue the item to the fourteenth of January."
[End of transcription from Hutchings]
Note that there was a staff presentation both before and after the 31minute presentation of the subject report. Public testimony then followed the final staff presentation.
John Hodgson at 5:10pm said: "This is in response to the last meeting, in particular Supervisor Collin but others were asking about what were the costs, what were the realistic revenues that could be generated, are there differences in terms of the needs as well as the revenues."
Hodgson was referring to the statement made at the last hearing, October 29th, at 10:06pm, by Supervisor Collin, who said:
"That's why it's crucial, I think, to know, at least from my perspective, is if the main reason that we're pushing a change in the Community Plan, and such a big change in the Specific Plan area part of that, many people that are supporting it are supporting it because they think that it is going provide a LOT of infrastructure to the community. I question that, over just six or seven thousand units, what it'll buy. Maybe I'm just skeptical but I don't think its going to buy anywhere near what the community thinks it's going to buy. There's my skepticism."
Further, just before the October 29th meeting closed, Planning Director Tom Hutchings made the following statement: "We will plan on a report on the drainage issues on December tenth and we will also try to fold in the questions and comments that were raised at tonight's hearing."
John Hodgson at 5:31pm December 10th said, in response to Supervisor Nottoli's question on figure 12 (sewer): "The black line applies to the need for the entire area, which is much larger than the Rio Linda/Elverta Community plan. The red line, sewer, applies for the trunk facility, the backbone infrastructure within the Rio Linda/Elverta Community Plan."
Conclusion: The two cost figures in figure 12 refer to different areas and are not related.
John Hodgson made no reference of any kind to the "Specific Plan" Alternatives on Figures 1, 2, 4, 5, and 6 of the report. There is no explanation of these "Specific Plan" Alternatives anywhere in the report itself.
I called Dave Pevny of the County Planning Department on December 12th. I asked Dave what the "Specific Plan" items referred to. Dave confirmed that they were the Elverta Villages developer's details that are planned to be included in a Specific Plan for that development. Dave said "They were showing us (the report) earlier in the week (and that) we asked them to add (the Elverta Villages Specific Plan) to the charts (in the report)". I asked Dave if there is an "applicant" in the Community Plan process, and he confirmed that there is no "applicant" when discussing a Community Plan rewrite.
Conclusion: Planning Staff confirmed that they met with MacKay and Somps to review the report before it was presented, and confirmed that the report was changed at the request of Planning Staff.
On Thursday, December 11th, I met Les Clark at the MacKay & Somps office on Tribute Road. I asked for a copy of the report. He provided me one black-and-white copy and said that additional color copies would be available later that day. He said that their client was the developers of Elverta Villages, not the County of Sacramento. I came the next day to pick up the three color copies promised: I was given one copy, and advised that additional copies would cost me twenty dollars each.
On Monday, December 15th, I talked to Les Clark on the telephone. I again brought up the issue of who was funding the report and whether it was at no cost to the County. He said that his client is the developers, but said "making the statement it's no cost to them is not appropriate because they were involved in the project and in the report and they provided information and consultation during its preparation". I asked Clark about the "Specific Plan" items in the report. He said "That's what would be generated in Elverta Villages". I asked him if he was referring to "the 1593 acres that's identified in one blob?" and he said "That's correct".
Clark on December 15th closed our conversation with the comment "Believe me, as much as you would like to find out -- there's no sinister motive here, we provided a service and we were very proud of the work that we did and it was very clear and concise and it was simply a summary report of data that had already been presented in the technical studies for the project".
My wife overheard both sides of my telephone conversation with Clark and assisted me in preparing a transcription of the conversation.
THE REPORT ITSELF:
Executive Summary page 1: Assumptions, Alternative G, says that it "assumes that most of the Elverta Villages Specific Plan is built out at an average of 4 units per acre (gross)." 1593 acres at 4 per acre would be 6372 dwelling units. Figure 1, Specific Plan, shows 5700 single-family residential and 240 multi-family apartments to be probable, a total of 5940 dwelling units. Figure 1 thus does not agree with the executive summary.
Executive Summary Page 2: In all cases the statement is made that "Alternatives A and B do not provide sufficient revenue to pay for the (needed infrastructure)". No attempt is made to identify what infrastructure would be realistically required by alternatives A and B., so these statements are suspect.
The Alternative G "probable" figures selected are Elverta Villages plus an unidentified additional amount of development. Elverta Villages alone is shown in the report as "Specific Plan". Comparing "probable" Alternative A to "probable" Alternative G as shown in figure 1, the difference is 6650 dwelling units. However, Elverta Villages only accounts for 5940 of these. The 710 unidentified units are more than the 600 units identified for plan A. Where are these phantom units?
Figures 9,10,11 show new and improved roads in the City of Sacramento. Have this work been approved by the City, and is the County really going to pay to do this work? Also, Elverta Road is not four-laned between the East Levee and Highway 99 as expected by Elverta residents who are proponents of Elverta Villages.
Figure 11 shows 16th St (Raley Blvd.) being combined with Dry Creek Road and four-laning of Dry Creek Road in front of Rio Linda High School and Dry Creek Elementary School. Have the Highway Patrol and the School Districts agreed to this rerouting, and is the land available for the reroutes?
On December 24th, I spoke to Steve Hetland, County Traffic Engineer, about the roads shown in the report. He agrees that it would be better (but much more expensive) to extend 16th St north to Elverta Road, but he feels it isn't possible now without serious community support as it would cut through the Dry Creek Parkway. The reroute via Dry Creek Road is a viable alternative. He says he will attend the January 14th meeting and support a suggestion that any further planning at least consider a bridge on 16th Street, as originally planned years ago.
Steve says that the roads shown are
for the entire plan and not specific to Elverta Villages. He says
when that gets to the specific plan stage that the exact improvements will
be determined then. Agrees it unlikely that it can be identified
that Elverta Villages will pay for improvements IN THE CITY OF SACRAMENTO
as shown. He agrees that Elverta should be 4 lanes from East Main
Drain to Hwy99, but without
adding in Placer County development
traffic he can't justify 4 lanes.
Figure 1 (Probable values) show
the following:
Alt.G 7000 SF d.u.. Specific
Plan is 5700, where are remaining 1300? Alt A is 600.
Alt.G 250 MF d.u. Specific Plan
is 240, where are remaining 10? Alt A is zero.
Alt.G 150,000 Sq.ft Commercial, Specific
Plan is 131,000, where are remaining 19,000? Alt A is 15,000.
Alt.G 25,000 Sq.Ft. Bus/Professional,
Specific Plan is 0, where are the 25,000? Alt A is 10,000.
Alt.G 100,000 Sq.Ft. Industrial, Specific
Plan is 0, where are the 100,000? Alt A is 75,000.
ATTACHMENT B : BOS HEARING 12/22/93 TRANSCRIPTS
AND EXCERPTS
____________________________________________________________
Memorandum by Jay O'Brien
12/22/97: Listened to BOS meeting tape from 12/22/93, Item 4. Made copy of the session.
Speakers other than Board members were Tom Truszkowski and Tom Hutchings from County Planning, Mark Pheatt, Mel Griffin, Robert Templeton Jr (Ladawi Development), Paula Parker (CPAC), Robert Bell (Elverta landowners), Billie Helms, Charlie Moore, Nan Pheatt, Jerry Wickham.
Some excerpts and direct quotes are as follows:
Truszkowski: "If the Board acts to adopt the resolution that is attached to the staff report you would actually be acting to restart a Community Plan effort that was suspended in October of 1992 due to County Budgetary Constraints".
Truszkowski: "Have this be a very public process offering a broad perspective of participation from members of the community and the other interests that might be involved"
Truszkowski reference to "Project objectivity" with consultants supervised by County staff. Payment is really a "donation".
Truszkowski re commitments made previously to CPAC: "Any consultants that the County used to provide technical information would also be supervised by county staff" (not by the developers)
Toby Johnson to Truszkowski: "Staff maintains control, developers simply supply funding?" Truszkowski: Yes.
Toby Johnson: "In addition to CPAC, the community has open opportunity to make comments and offer recommendations all through the process as I remember?"
Truszkowski, responding: "That's correct, Mr. Johnson, in fact the newspaper out in this community is very good at getting information to the broader community. We're hoping to use that vehicle to bring many people into our meetings to have those discussions".
Dave Cox to Truszkowski, answered by reference to guidance package and public scrutiny: "How do we assure that this is an arms-length transaction?"
Hutchings: "There is included in our proposal a new concept the board probably has not seen. And that is the development of a guidance package. It's something that we are proposing for all of the new specific plans as well, and that is basically a document that identifies roles and responsibilities of the various parties involved including property owners, CPAC members, staff, public. I think in response to one of the comments about having the negotiations be open to public scrutiny, I think that's the appropriate vehicle to resolve those issues. Clearly, any of the documents that are prepared would be available for public review and comment before the board adopts them. But I do want to at least alert the board that we do anticipate putting together this guidance package so it's clear to all of the parties involved what the various roles and responsibilities are in this effort."
Item was passed by 4 yes votes from the 4 sitting supervisors (district 1 seat vacant). Staff to bring back completed documents and guidance package on 1/26/94. Resolution 93-1620 executed to "Initiate a planning program to revise the Rio Linda - Elverta Community Plan".
The Action Summary says "Approved Recommendations
of the Planning Department to proceed and report back on January 26, 1994,
with the funding agreement, work program and budget".
ATTACHMENT C: GUIDANCE PACKAGE REVIEW
by Jay O'Brien
_____________________________________________________________________
Memorandum by Jay O'Brien
BOS Hearing 12/22/93:
=====================
Tom Hutchings to Board of Sups, after
public testimony closed: "There is included in our proposal a new concept,
the Board probably has not seen, and that is development of a 'guidance
package'. It is something that we are proposing for all of the new
specific plans as well and that is basically a document that identifies
roles and responsibilities of the various parties involved including property
owners, CPAC members, staff, public. I think in response to one of
the comments about having the negotiations be open to public scrutiny,
I think that's the appropriate vehicle to resolve those issues. Clearly
any of the documents that are prepared would be available for public review
and comment before the Board adopts them but I did want to at least alert
the board that we do anticipate putting together this 'guidance package'
so it's clear to all the parties involved what the various roles and responsibilities
are in this effort."
Resolution 93-1620 was then adopted to "Initiate a planning program to revise the Rio Linda - Elverta Community Plan".
The Action Summary also says "Approved
recommendations of the Planning Department to proceed and report back on
January 26, 1994, with the funding agreement, work program and budget."
BOS Hearing 1/26/94:
====================
Tom Hutchings' Staff report to BOS
includes the following:
" On (12/22/93), ... The Board also
directed Planning Staff to meet with the local Community Planning Advisory
Council, and other interested members of the community, to inform them
of the planning process, and to prepare a project guidance package that
defines the roles and responsibilities of all persons, and/or groups that
are involved in the Plan revision."
"Planning staff has not yet begun the process of preparing the project guidance package. The preparation of the guidance package requires coordination with, and meetings with, the local Community Planning Advisory Council. . . . A meeting with the CPAC ... is tentatively scheduled for February 3, 1994. Planning staff, and the CPAC, will report back to the board in mid to late February with a guidance package for Board Review and endorsement."
PLANNING LETTER TO CPAC ON GUIDANCE
PACKAGE:
============================================
Tom Truszkowski 12/28/93 Letter to
CPAC Chair which defines "Guidance Package". It is a substitute for
a contract between the involved parties. "Unlike a contract, which
is an adversarial document designed to protect each party against what
the other party may do or not do, a guidance package provides the framework
for a collaborative effort between the County and the applicant."
CPAC 4/7/94:
============
Presentation by consultant Julie Nauman
from 'The Planning Center" about guidance package.
GUIDANCE PACKAGE 6/13/94:
=========================
The first "Guidance Package" any CPAC
member can find is dated June 13, 1994, and the CPAC member (at that time)
who provided it to me had noted on the first page "will be considered for
final adoption on 6/30".
I have not yet been able to obtain
a current copy of the "Guidance Package" and I have not been able to determine
when, if at all, it was endorsed by the BOS. Cathy Pata referred
me to Linda Schotsal, the planning staff person who is the CPAC secretary.
Schotsal does not know anything about a Guidance package and referred me
to Dave Pevny. Dave asked Leighann Moffitt on January 5, 1998, and
reported that she will "check her computer".
BUDGET SUBCOMMITTEE:
====================
The Guidance package includes references
to a "budget subcommittee" to monitor the expenditure of funds' with a
CPAC member as part of the committee. CPAC minutes identify that
Norajean Wells was initially appointed as representative. There was
no mention in CPAC minutes of any report back to CPAC from that committee
either by Mrs. Wells or staff, nor was there any appointment to replace
her after Mrs. Wells resigned from CPAC. I can find no evidence of
any "budget subcommittee" meeting.
SPECIAL INTEREST GROUPS:
========================
The Guidance package identifies the
developers, Chamber of Commerce, QRL, Liddawi and "Area residents" together
under one heading. It says that the groups should comment formally
to the Board of Supervisors "during public hearings". It appears
that all groups are to be treated equally without preference, and that
all groups would testify during "public testimony", not during staff presentations
to the Board.
PUBLIC INFORMATION:
===================
The Guidance Package, page 7, says
"Staff will send copies of all draft documents and other pertinent information
to the Community Center for review by any member of the public." Bill Katen,
Recreation and Parks District Administrator, showed me the ONLY documents
EVER received for public review, the Draft EIR. This commitment was
not followed. Note that staff was also to prepare minutes, which
certainly should have been "pertinent" and made available for review by
the public. Such was not the case.
The Guidance Package, page 7, says "Planning Staff will send a notice of meetings to the Rio Linda News (meet Tuesday pm deadline). This commitment was not followed, according to Don Flesch, owner of the Rio Linda Elverta News.
CONFLICT OF INTEREST:
=====================
The Guidance Package, page 8, states
that CPAC members must choose to abstain from voting if their property
is within 2500 feet of an area proposed for additional urban uses if the
change might result in a $10000 change in property value. CPAC members
do not recall any enforcement of this clause and recall votes cast which
could have met the criteria for abstaining.
WORK PROGRAM:
=============
The Guidance package includes much
verbiage directly copied from Exhibit "B", "Work Program", which was part
of resolution 94-0089 adopted 1/26/94. However, certain passages
are missing, such as "The guidance package will be reviewed and endorsed
by the Board of Supervisors". Six pages of details on technical studies
are not included.
ESTIMATED BUDGET:
=================
A "estimated budget" is included in
the Guidance Package, totalling $378,706, as compared to the Exhibit "D",
estimated budget, part of the 1/26/94 resolution which totaled $378,757.
I cannot make any of the "phases" or accounts compare between the budget
approved by the BOS and the budget in the Guidance Package.
ATTACHMENT D: SPECIFIC PLAN ORDINANCE SNARE
LANGUAGE
____________________________________________________
Memorandum by Jay O'Brien
The Specific Plan Ordinance has a clause inserted in it that timed out on December 31, 1993, which would have prevented the Elverta Villages Developers from initiating a Specific Plan should our Community Plan Update not be in process. This was pertinent because the process was stopped in October 1992 when the County ran out of money to continue with the update.
The following is quoted from a March 12, 1997 letter from Dr. Paula Parker, CPAC Chair, to Policy Planning Commission, Board of Supervisors, Planning Director:
"...in...1992 the Board of Supervisors deleted the 'Urban Growth Area' designation (for the "Elverta Villages" area).
"...in December of 1992, the Specific Plan Ordinance.....was amended with wording which created the opportunity needed by the developers to advance a Specific Plan in an areas which had been deleted from the list of new 'Urban Growth Areas' (outside the Urban Policy Area but inside the Urban Services Boundary):
"A.Criteria for Specific Plan Initiation
"(1) Specific Plans may be initiated either (a) within the Urban Policy Area as identified in the adopted General Plan; or (b) within any area inside the Urban Services Boundary where a formal Community Plan update has been initiated by the Board of Supervisors.
"(2) A 'Request to Prepare a Specific Plan' may be submitted either (a) within the Urban Policy Area as delineated on the revised draft General Plan, dated December 9, 1992,; or (b) within any area inside the Urban Services Boundary as delineated on the revised draft General Plan, dated December 9, 1992, where a formal Community Plan update has been initiated by the Board. The Board may choose to condition initiation upon consistency with the updated General Plan. This paragraph shall expire on December 31, 1993."
Had the Community Plan Update process not been "restarted" before December 31, 1993, the opportunity to prepare a Specific Plan for Elverta Villages would have expired with the snare language in paragraph (2) above.
In is interesting to note that Senior Planner Tom Truszkowsi, presenting the resolution to the Board of Supervisors on December 23, 1993, which would accept developer money for the Community Plan Update to continue, said:
"If the Board acts to adopt the resolution that is attached to the staff report you would actually be acting to restart a Community Plan effort that was suspended in October of 1992 due to County Budgetary Constraints".
Note that there was no first district County Supervisor seated in December 1993, due to the resignation of Grantland Johnson, who was on record (February 3, 1993) as stating "I do not believe Specific Plans should be permitted outside of the urban policy area".
Following Truszkowski's staff presentation, developer representative Robert Bell spoke, prompting the following statement from Supervisor Illa Collin:
"Let me ask a question Bob. In trying to sort this through I have no idea why the item is before us today before the December 28th election. I don't know pro or con, I don't understand the people who are asking to have their own elected supervisor first before we take this step, I don't know what's wrong with that. I don't know what's wrong with moving ahead either. I haven't heard yet a strong argument on either side.
"I can understand if I were a citizen out there and I were disenfranchised and I thought this was an irrevocable step that I might be very upset if I thought there were other options. What I haven't heard from the other side is what they think their options are. If they really want a community plan accomplished out there we're going to have to do it with arms-length funding from the private sector.
"I don't know whether it makes any difference or not whether there is a Supervisor from that district sitting here unless they think that Supervisor is just going to say we don't want to do any community planning in Rio Linda. And yet I think the whole community wants some planning out there. They want some certainty as to what the future is going to hold for them over the period of the next twenty years.
"I can't really understand why the issue is before us today, why it didn't wait. It can't start anyway. I wish in the remaining people that are left (to testify), both sides would really try to make some compelling arguments that why we should make the decision today."
Supervisor Collin was not told about the December 31, 1993, timeout clause, although it appears she asked the right question.
Jay O'Brien, Rio Linda.
This testimony is supported by my 17 page letter which I delivered to you and your Clerk on Monday. [See above, dated January 12, 1998]
Following up on new information presented at the last hearing, I reviewed the history of your acceptance of a "donation" of $378,757.00 to fund our Community Plan.
Developer private funding for infrastructure is appropriate.
However, developer private funding of Community planning functions is DEAD WRONG and should be illegal. You have decided to have the fox guard the henhouse. When a developer pays a planner's salary, the planner is well aware of where the money comes from. That taints the process.
This may have started out with good intentions, with Mr. Hutchings' guidance package guaranteeing objectivity, an arms-length arrangement with the donor, and passing public scrutiny, but that didn't happen. It is now just business as usual.
It is now just another applicant with a plan who pays his fees and Mr. Hutchings helps him to implement his project.
That's DEAD WRONG when its a community at stake. When the community should be the applicant, not a deep-pocket developer from LA.
Mr. Clark of MacKay and Somps set the stage for me. He told me "as much as you would like to find out, there's no sinister motive here". I wasn't looking for anything sinister at that time, but thanks to Mr. Clark's tipoff, I looked. I found it. I haven't found anything yet that is criminal, but I'm not finished.
After the last hearing, I filed formal requests with you for data under the Public Records Act. After you missed the 10 day response requirement of the law, I formally reminded you. It's now 20 days and counting. Nothing. I expected to have that data in time to use it to prepare this testimony, the same as I expected a timely response from Mr. Hutchings to answer what looks to me like errors in engineering, logic and math in the MacKay and Somps report.
I have to suspect that since you have not been forthright in responding to my timely and legal requests for public information, that you have something to hide.
The example of the MacKay & Somps report at the last hearing is enough to prove the process is tainted. Mr. Hutchings identified it as a "presentation by the applicants" without so much as a quiver in his voice. His identification alone of a developer as an "applicant" for a Community Plan was a first. His statement alone proves the process is tainted, even if nothing else is considered. He should be embarrassed about what he said. But, he told the truth, and I commend him for his honesty.
CPAC asked about objectivity. How objective is a staff relationship with the applicants where staff reviews their presentation, directs the addition of the Specific Plan values, gives the applicant 31 minutes of staff time in your meeting and doesn't bother to review the report for accuracy?
Not objective at all.
Mr. Hutchings "arms-length" between he and the donors is a very short arm.
Had Mr. Hutchings followed his own guidance package, he would have placed ALL of what I have asked for at the Community Center for access by the public. I wouldn't have had to ask for it at all. Mr. Hutchings made committments to you which you accepted as criteria to proceed with the arrangement to accept private money to fund the Community Plan Update. He abrogated those committments to you, and you aren't forcing him to do what he said he would do. You approved the funding agreement based on his committments. Those are still committments made to me by the County, and now you have to answer to me.
What happened to the guidance package? I learned today from Planning staff that it was never brought back to you. Was that just a facade to get you to approve the funding? Or just another committment ignored by Mr. Hutchings?
What happened to the budget committee? It met several times, then it died.
Why aren't there public documents at the Community Center as committed in the guidance package?
Why are you ignoring my Public Records Act requests? Must I sue you to get public records covering payment by the applicant to fund your socalled Community Plan?
Why won't you respond to my request for clarification of the MacKay and Somps report? Are you embarassed because I've proved it wrong and you endorsed it?
What are you hiding? What is it that you don't want the public to know?
Are your dealings with the donor, the developer, the applicant, all "above board" and at "arms length"? Can you prove it? Or is that why I can't get anything from you even with formal, written requests?
You should answer these questions before you adopt any
of the alternatives proposed by the developer-funded "application" which
you try to
pass off as a Community Plan Update.
What you have done is DEAD WRONG and should be illegal.
Only the original plan, Alternative D, is a reasonable selection.
Thank you.
Hon. Illa Collin, Chairman, and
MEMBERS OF THE BOARD IN SESSION
Board of Supervisors
Sacramento County, California
Dear Chairman Collin and Members of the Board,
This is a follow-up letter to my testimony which you heard at yesterday's hearing on the Rio Linda Elverta Community Plan Update. You were provided a copy of my testimony at the hearing.
You directed counsel to follow through on my request for information under the California Public Records Act. That request, received by the County on December 15, 1997, is now 11 days deliquent. I appreciate your action, as I feel that the information will show other examples of malfeasance. Examples beyond Mr. Hutchings' failure to follow his commitments to you and the public to implement a guidance package to assure his objectivity in his dealings with the developers. Please instruct whomever provides the information I seek to not charge me for preparing the copies, as I will place them in the Community Center for public reference after I read them, fulfilling Mr. Hutchings commitment made to us in his so-called guidance package.
The community and CPAC input to the guidance package and the commitments detailed in the guidance package were just another waste of time. When Mr. Hutchings provides you copies of the 19 page document, you will be able to review the three repeated pages in the "Work Program" section that prove the package was never reviewed by anyone who took the time to understand the guidance package, and prove it was only a sham. A sham contrived to placate you and the public while he accepted nearly $400,000 from developers to fund his Community Plan Update which would facilitate the developers interest, not the community interest.
I expect a written response to my letter of December 19, 1997 to Mr. Hutchings (see my letter to you dated January 12, 1998, for a copy of that letter) and I expect "on-the-record" responses to the following issues I posed during public testimony to you yesterday:
What happened to the budget committee? Established in the guidance package, It met several times, then it died. Mr. Hutchings responded yesterday to you that CPAC didn't find it useful and it was stopped, implying mutual consent. That is not the story I get from CPAC. How many times did the committee meet? Please produce copies of the minutes of the committee and copies of the material discussed. Exactly who attended the meetings? Exactly when were the meetings? Exactly who made the decision to discontinue the committee, and when?
Mr. Hutchings acknowledged that he was delinquent in following his committment to produce a guidance package. Is that supposed to be the County answer to my question about what happened to the guidance package? He abrogated a committment to you and to the public. Will the Board take action to correct this malfeasance? You owe it to the public to do so.
My Public Records Act request for copies of correspondence and documentation of the County's relationship with the owners/developers who funded the Community Plan Update will provide part of the answer to my question about this relationship. You must provide the rest of the answer. My questions, posed to you yesterday, that should be answered by the County before you adopt any Alternative proposed by the developer funded "Community Plan" is "Are your dealings with the developer, the applicant, all above-board and at arms-length"? Can you prove it?
Sincerely,
/s/
Jay O'Brien
cc: R.A. Ryan, Jr; Dr. Paula Parker
attached: copy of January 14, 1998 testimony
[The above letter was attached to the County
Counsel Letter of January 21, 1998]
Robert A Ryan, Jr
County Counsel, County of Sacramento
700 H Street, Suite 2650
Sacramento, CA 95814
Attention: Ms. Karin E. Schwab
Re: Public Records Act Request
Dear Ms. Schwab,
Thank you for your letter of January 15, 1998. It is reassuring to see that at least Counsel acts immediately when there is a reason to act.
I filed the PRA request as a result of the staff testimony at the Board of Supervisors meeting on December 10, 1997. At that meeting, the "arms-length" "donor" who underwrote the Planning Department's expenses to update our Community Plan was introduced by Mr. Hutchings as "the applicant". Further, public testimony was closed at that meeting for all items not introduced on December 10.
As the introduction by Mr. Hutchings appeared to be a Freudian slip, confirming what I have suspected for some time, I wanted to review the financial arrangements so that I could prepare testimony for the January 14th hearing. I wanted to be armed with more factual data proving Planning's relationship was not "arms-length" with the developers, as promised to the Board on December 22, 1993, by Mr. Hutchings. That is why I filed my request as soon as possible and hoped for compliance with the 10 day requirement of the PRA. Unfortunately the January 14th hearing has now taken place and public testimony is closed. Anything I learn now as a result of my PRA request cannot be offered in testimony to the Board.
Should the Board decide to select Alternative D, the original Community Plan, and throw out all of the alternatives of the tainted Community Plan Update funded by the applicant, then further investigation on my part would be moot.
It appears to me that all of the "arms-length assurance" commitments made to the Board, to CPAC and to the community by Planning have been allowed to die. The action of Planning in providing consultation to the "applicant" in assisting the applicant to prepare the report presented during staff time was especially egregious, given that Planning made no effort to provide similar help to CPAC or others who favor alternatives not supported by the applicant.
I am pleased to learn that you intend to comply with my request. Given Planning's lack of response to my letter of December 19, 1997, with questions I specifically wanted responses to about the MacKay & Somps report, also so I could prepare testimony for January 14, coupled with the lack of response to my PRA request, I concluded that the County was really withholding information from me, and therefore must have something to hide. That was troubling, and I am pleased that you are now involved.
As you are now involved, and as you enjoy an opportunity to proffer advice to the Board, I am attaching a copy of both my testimony given at the January 14 Board meeting and the 17 page letter to which I referred during that testimony. To complete the package I have also attached a copy of my January 15, 1998 letter to the Board, a copy of which was sent to your office. I would appreciate your review of this information, and I would be pleased to discuss any of it with you.
Sincerely,
/s/
Jay O'Brien
991-2010 (after 9am please)
Attachments:
Testimony, Jay O'Brien, 1/14/98
Letter to Board of Sups, 1/12/98, 17 pages
Letter to Board of Sups, 1/15/98
Hon. Illa Collin, Chairman, and
MEMBERS OF THE BOARD IN SESSION
Board of Supervisors
Sacramento County, California
Dear Chairman Collin and Members of the Board,
Thank you for your mention of my request that public testimony be re-opened so that I may testify to you about facts discovered as a result of my Public Records Act Request. Facts that were not available to me until after public testimony was closed, even though my request was timely. Chairman Collin asked if my request could be taken up next Wednesday at 6pm, and I confirmed that would be satisfactory. Now, however, I find that I may not be able to attend that meeting, and thus I have prepared this letter. I will, however, attempt to attend, and would appreciate your consideration of my request to testify should I be able to be present.
Had I been allowed to testify yesterday, I would have handed you what is attached to this letter. I have attached a copy of what I intended to say, plus what I was prepared to hand to you at that time. I was prepared to project three pages during my testimony, and I have placed colored tabs on the attachment to facilitate your reference to those pages.
My prepared testimony would have been modified somewhat, however, to explain that some of the attachments were prepared before my conversation yesterday morning with Karen Ziebron. It was during that conversation that I learned that Supervisor Dickinson was fully informed by Planning of the gross fiscal shortage I discovered during 1995, constituting a contract breach.
My presentation highlights the curious hiatus of six months during which time Supervisor Dickinson was not sent copies of the letters which Planning sent to the Developers. Letters which threatened the developers about overdue payments. I wrongly concluded that Supervisor Dickinson was being kept in the dark by Planning, and I wanted to highlight the lack of such copies. It now appears that Supervisor Dickinson's office was working with the developers "like we would any applicant", to quote Ms. Ziebron. There's that "applicant" word again which triggered me to review the finances of this project which should not have an "applicant". I have not seen any revisions to the contract or any "paper trail" to confirm what Ms. Ziebron stated to me in our conversation.
I have received still more documents yesterday as a result of my PRA request. At this time I do not know if those documents will provide additional information to share with you.
I request your review of the attached information, and I request your review of my previously supplied information and testimony, especially my letter dated January 12, 1998.
As my attached testimony concludes, I request a full independent audit. The process is flawed, and there are no "tracks" on the verbal modifications made to duly enacted Sacramento County Resolutions. At the very least this is extremely bad business, showing acute fiscal irresponsibility.
Sincerely,
/s/
Hon. Illa Collin, Chairman, and
MEMBERS OF THE BOARD IN SESSION
Sacramento County Board of Supervisors
700 H Street, Room 2450
Sacramento, CA 95814
Dear Chairman Collin and Members of the Board,
My letter to you dated February 12, 1998, identified the fact that I wished to offer public testimony at your meeting held on February 18, 1998. I wished to testify in accordance with your announcement at your December 10, 1997 hearing, at which time you announced that public testimony was closed in the matter of the Rio Linda Elverta Community Update with exception to what was presented during the staff portion of your December 10 hearing.
Sacramento County missed its legal requirement to respond to my Public Records Act request for details of the developer-Planning relationship identified during the staff portion of your December 10, 1997, hearing. The Planning department did not reply to my timely request for details on the report presented during the staff portion of that hearing. Thus, I was not able to present public testimony in accordance with your schedule. I was prepared to present testimony at your February 18, 1997 meeting, but you did not honor my request to present that testimony. All Board members received copies of my February 12, 1998 letter, and most stipulated that it was read. As my letter contained most of the details I wished to make public during public testimony, all Board members were aware of the issues I wished to articulate for the record.
As my testimony would relate possible improper influence of the Planning Department by the Developers who funded the “Community Plan Update”, it is curious to me that you would not allow my testimony. You , the County government, first withheld information long enough that there was no opportunity for me to testify about what my investigation uncovered, and then you refused to allow me to raise my concerns in a public forum. It seems to me that if everything were really “above board” you would prefer to allow me to voice my concerns and then allow Planning to place responses into the public record. However, based upon your considered decision to disallow me my right to offer public testimony, given that my Public Records Act request was ignored and that my letter to Planning was ignored, I suspect that there is something to hide and that you wish to silence my public testimony.
I regret your inaction to allow my testimony, which I believe, is a violation of Government code 54954.3. The agenda item was identified at your December meeting, and in accordance with your announcement I took timely and prudent action to obtain records and information pertinent to my preparation of such public testimony. The County denied me those records in a timely manner, a violation of Government Code Section 6256, and my request to the Planning Department for timely information was ignored. Even though you knew exactly what I wished to relate in public testimony, you denied me the “Opportunity for public to address legislative body” as provided to me by law. Your adoption of any version of the Rio Linda Elverta Community Plan other than the environmentally superior CPAC Alternative A, which is not supported by the funding developers, will be tainted by the County’s violations of these laws.
I am attaching a copy of a Sacramento Bee editorial about a similar situation in the Fresno area where the Urban Services Boundary was also moved improperly. In addition, I am attaching a copy of a letter I wrote which was published in the Rio Linda Elverta News, which substantiates the contention that Sacramento County is following the Fresno example.
I don’t see how you can proceed without first calling for a full and independent audit of this entire process, as I requested in my February 12, 1998 letter. Please commission such an open audit. Now.
Sincerely,
/s/
Attached:
"Bribery's destructive toll", Sacramento Bee March 3,
1998
"County Community Plan Debacle", Rio Linda Elverta News
March 5, 1998
Land-use decisions must be scrupulously fair
The federal indictment of one of the San Joaquin Valley's most powerful developers on bribery and charges relating to the corruption of local land use politics should sound an alarm up and down California in communities struggling to balance growth with the need to preserve farmland. In cities such as Fresno and Clovis - where the federal probe has already netted nine convictions of city council members, lobbyists and planning consultants - it is clear that the local political system has been manipulated for extraordinary personal gain at the cost of public trust.
These allegations against developer John Bonadelle, whose family has built 15,000 homes in the region since the 1950s, are presently just that: allegations. He deserves the presumption of innocence and the full opportunity to vigorously defend himself in court. Yet it is not too soon to merely read the details of the 30-page, 13-count indictment to learn of the kind of political system that any community should seek to avoid.
The probe was named "Operation Rezone" in reference to a Fresno-area planning consultant who - before he went to prison - drove a car with the license plate REZONE, Rezoning is the political decision made by cities and counties to convert land from one set of allowable uses to another. Such changes can create riches. If any coalition of private citizens and public officials manages to manipulate the political process so that zoning matters are predetermined, the result is the kind of corruption alleged by Operation Rezone.
Farmland on the edge of town is an enticing target for rezoning schemes because of the possible huge profits. So long as the land is zoned as farmland outside an urban service area, it has modest value, perhaps $3,000 to $5,000 an acre. The same land, rezoned for development inside an urban service area, suddenly becomes many times more valuable.
Developer Bill Tatham Jr. felt he was being asked for a bribe when the lobbyist with the REZONE license plate told him it would require a $10,000 "fee" for the Clovis City Council to rezone his land. Tatham complained to the FBI, which equipped him with a hidden microphone for his next meeting with the lobbyist and a city councilman. That lobbyist is now serving a 21-month prison term and cooperating with authorities. The majority of that City Council has since been convicted of various zoning-related crimes.
The judicial system will continue to help determine which allegations raised by Operation Rezone are true. One can't help but wonder how many Tathams somewhere in California are being shaken down for money in exchange for a predetermined vote, but are unwilling to come forward. They have reason to be fearful, given what has happened to Tatham. He has been ostracized from the local business community and suffered economic losses for doing the right thing by revealing to law enforcement what had been the secret world of political corruption.
For locally elected political leaders, making the right land-use decisions
in a scrupulously fair process is plenty tough. It is up to them, developers,
the government staff and concerned citizens to ensure that these decisions
are not determined by money, either above or beneath the table.
In 1992, Sacramento County ran out of money and stopped work on the Rio Linda Elverta Community Plan Update. Developers, needing the Update process running in order to build a new leapfrog residential high-density development on Elverta Road, offered to put up $400,000 at "arms length" to allow the Update process to be restarted. County Planning was to enact a "guidance package" to provide for "public scrutiny" to verify the "arms length" relationship between Planning and the Developers. A contract was enacted by Board of Supervisors Resolution in January 1993 which enabled the payment, over the objections of many concerned citizens.
The "guidance package" and "arms-length" assurances were never enacted. The contract was breached for over three years, with only one payment "on time". The developers were in arrears an average of $97,288 during 1995. Even though they were in arrears, the process they were funding continued. Not surprisingly, in February 1998 the Supervisors directed Planning to finalize the Community Plan with 4000-4500 dwelling units in "Elverta Villages" on Elverta Road. When this is finalized, the Supervisors will adopt an EIR that is based on woefully incorrect and out of date information.
Planning slipped at the December hearing and referred to the Developers as an "Applicant" and give them 31 minutes of time to present a flawed but glitzy report to the Supervisors, intending to sway the Board to the Developers position. Public Testimony was to be closed, but instead it was left open for the public to rebut the "Applicant's" report at the January hearing.
To uncover the financial arrangements between Planning and the Developers, I filed a Public Records Act request with the County in December 1997. After they missed the legal requirement to respond in ten days, I sent a follow-up which was also ignored. I did not receive the financial information which substantiates the contract breach described above until after the January hearing, and I received that only because County Counsel intervened. I sent copies of my findings to the Supervisors and asked that public testimony be reopened to allow me to testify about the details they withheld from me. Public testimony was not reopened, even though they knew exactly what I wanted to put on the record.
Also in December, I sent a request to Planning for an explanation of all of the calculation errors and misstatements contained in the 31 minute report given to the Supervisors during staff presentation time. I have not received an answer. As Planning has not explained the errors to the Supervisors, I conclude Planning is too embarrassed to admit the "applicant's" report was worthless and misleading.
The "guidance package" would have provided for public review of the process. The "guidance package" and its provisions were abandoned about the time the developers first fell behind in payments. Planning told the Supervisors in January 1998 that no one from the community was interested, but our Community Planning Advisory Council members say they asked repeatedly about finances but never received any answers from Planning.
I have requested the Supervisors to perform a full independent audit on this flawed process with built-in conflict of interest between Planning and the Developers. That, also, has been ignored.
This letter just scratches the surface of what appears at the very least to be fiscal mismanagement of funds, and could be much worse. The government should work for the people, not for the deep-pocket (but late paying) developers.
We need some REAL representation. We are just a very small part of the constituency of our County Supervisor, and it shows. If we could get our Recreation and Parks District to agree to join our Water District in a Community Services District, we could have some locally elected representatives who could effectively represent us "downtown". It's too bad that Parks District Directors Bob Bastian and Wilma Dyer, who both supported Incorporation, didn't vote to create the CSD. We need it. Now.
Jay O'Brien
Click here for the Public Records Act, Government Code sections 6250-6270
Click here for Government Code sections 6275-6276.48 (Public Record Act exemptions)