MEMORANDUM
To: Theo Kracke
From: Travis C. Logue, Esq.
Date: February 27, 2009
Re: Elings Park South Development
The purpose of this Memorandum is to provide background and to analyze the legality of the proposed Elings Park Phase III development plan on Elings Park South (APN 047-010-049) which is comprised of 130 acres.
Background
The Jesuits granted Elings Park South to the Los Positas Park Foundation(the “Foundation”) via a Grant Deed dated December 28, 1993. Notably, it contained a deed restriction specifying that, “The Property shall be used exclusively as a park for public recreation purposes and any use which is reasonably incidental thereto. ”
The Covenant Restricting Use (the “Covenant”) was made and entered into between the County of Santa Barbara and the Foundation and was recorded on March 3, 1999. The Foundation made the Covenant as an expressed condition to its receipt of funds from the County’s Coastal Resource Enhancement Fund (“CREF”) grant of $525,000.00.
Pursuant to the Covenant, the Foundation agrees that all the uses of the Property shall be restricted for thirty (30) years commencing on January 1, 1999to “passive recreation and the preservation of wildlife habitat. ” Elings Park South may “not be used for active recreation without the prior written approval of the County Board of Supervisors. ” Passive recreation shall include:
“such activities as hiking trails, horseback riding, jogging, hand-gliding, operation of radio-operated airplanes, picnic grounds, park benches, restroom, open public gathering in meadows, a road, and no more than 60 parking spaces cumulatively. Passive recreation shall not include activities such as ball fields, tennis courts, outdoor auditoriums, and other activities that require alteration of the natural land. ”
The Covenant also contains statements that it “shall supersede all rights recorded subsequent to this covenant, whether legal or equitable, whether voluntary or involuntary, to the Property in the next 30 years”; and “Upon any violation of the provisions of the Covenant, the County may apply to a court of competent jurisdiction for an injunction prohibiting any use of the Property in violation of this Covenant or for any such other relief as may be appropriate. ”
On January 19, 2006, a document was recorded which amended the Covenant to allow “telecommunication facilities” (i. e. cell towers).
On or about November 8, 2007, the City and the Foundation entered into a Pre-Annexation Memorandum of Understanding (the “MOU”). The MOU acknowledges that the specified existing uses on Elings South within the proposed P-R designation of “Undeveloped Parkland” will be allowed to continue pending a possible future PR Zone re-designation of Elings Park by the City as a “Regional Park” pursuant to Municipal Code 28.37. The existing allowed uses include weddings, hang gliding and paragliding, mountain biking, remote control and model airplanes, hiking, horseback riding, off-leash dogs, light agriculture, cellular telephone equipment, picnic tables, and parking for Elings North and South. The MOU also allows such “similar uses”, pending a re-categorization, as other low impact uses such as memorials and overlooks, low rock walls, benches, individual picnic tables, and Frisbee golf.
Most notably, Paragraph 5 of the MOU states that within thirty days of the date of the MOU, the Foundation shall submit to the County Board of Supervisors a request that the Covenant be extinguished on the effective date of annexation of the Elings Park South to the City. The City shall also submit such a letter. The MOU also states that “nothing in this MOU shall be deemed to compel the Board of Supervisors to extinguish the County Covenant. ”
On March 6, 2008, Santa Barbara Local Agency Formation Commission approved the City’s annexation of Elings Park South.
The Las Positas Park Foundation via a Quitclaim Deed for the purposes of a name change dated October 31, 2008 granted all of its interest to the Elings Park Foundation.
The City of Santa Barbara initiated an Initial Study/Environmental Checklist in 2006 for Elings Park Phase III. The improvements to Elings Park South include relocation of the existing BMX track facilities currently located on the lower plateau of Elings Park North to Elings Park South, a 1,350 square foot park office building, disc golf course area, and individual picnic areas.
The BMX track will consist of a 1.57 acre lighted dirt track of approximately 55,000 square feet, four spectator benches, starting gate, and public address system.
CREF Information
Santa Barbara County has awarded 258 grants for a total of just over $17.4 million from its Coastal Resource Enhancement Fund (CREF). The County established CREF in 1987 to help mitigate significant impacts of offshore oil and gas development to coastal aesthetics, coastal recreation, coastal tourism, and environmentally sensitive coastal resources. In effect, the County awards grants from CREF to enhance these specific coastal resources pursuant to the Board-approved CREF Guidelines. A description of these and other grants can be found in the annual CREF Status Report.
Environmental impact reports for five oil projects concluded that Santa Barbara County's coastal resources will be adversely affected by the impacts of offshore oil and gas development along or near the County's coast. The purpose of the CREF is to provide the required mitigation for these residual and cumulative impacts that cannot be fully mitigated by other project-specific mitigation measures. The CREF is designed specifically to mitigate, to the maximum extent feasible, impacts to coastal recreation, aesthetics, tourism, and/or sensitive environmental resources. The CREF achieves mitigation by providing enhancement projects, which will compensate for the residual impacts to the County caused by these oil and gas projects that are not fully mitigated by other project-specific mitigation measures. Any future offshore oil and gas projects permitted by Santa Barbara County would be expected to participate in the CREF program consistent with the adopted guidelines.
CREF monies are to be used for a variety of coastal resource protection or improvement projects. Enhancement projects, or programs eligible to receive CREF monies, are limited to those that are offsite from and not specific to any one development project. That is, the projects eligible for funding must be above and beyond the scope of other mitigation measures required of an individual permit holder. As the purpose of the CREF is to mitigate coastal impacts, it is the County's intent to actively seek and provide financial assistance to appropriate enhancement projects. The County Board of Supervisors will ultimately determine how CREF monies are awarded.
Legal Analysis
The Elings Park Phase III improvements appear to violate the Covenant. Question to be researched: Can the City approve Elings Park Phase III as currently designed?
The City may not approve Elings Park Phase III as currently designed unless the County extinguishes the Covenant.
The deed restriction in the original grant from the Jesuits to the Las Positas Park Foundation specifies that the land shall be used for “public recreation purposes and any use which is reasonably incidental thereto. ” It is not limited to either passive or active recreation. No other document has been located which indicates any specific intent of the Jesuits to limit the use to passive recreation.
The use restriction contained in the Covenant which was made in connection with a CREF grant specifically limits the use to “passive recreation” and provides a definition of such qualifying and non-qualifying uses. No active use is allowed without the prior consent of the County Board of Supervisors. It specifically states that passive recreation does not include any alteration of the natural land. The provisions contained in the covenant were specifically included to satisfy the goals and purposes of CREF.
As of today, the Board of Supervisors has not taken any action to extinguish the Covenant. To do so would appear to be a clear misappropriation of County funds. The County granted $525,000.00 to the Foundation using monies from CREF. In order to qualify for the CREF monies, the program needed to meet certain criteria. The program met these criteria because the Foundation agreed to enter into the Covenant that restricted specific active uses.
It appears the County could not simply extinguish the Covenant without coming to terms with the fact that it appropriated monies for a specific purpose with certain conditions attached. It is also clear that the County’s reason for extinguishing the Covenant is to allow the approval of active uses by the City which conflict with the CREF goals and purposes, namely, to improve coastal land preservation, habitat protection, coastal restoration, and coastal quality of life.
If the Board of Supervisors extinguishes the Covenant, the County could be in breach of the express condition of the $525,000.00 CREF grant. CREF personnel should be contacted to understand whether they are aware or approve of these Elings Park Phase III improvements.
Given the County’s current poor fiscal condition, one would think it cannot afford to recoup the CREF monies.
Allison DeBusk is the City Planner assigned to the project and indicated in a conversation that she expects a draft Environmental Impact Report (“EIR”) to come out within a couple of weeks and anticipates a public hearing on the EIR in mid-April.
The City must undertake the approval process pursuant to strict guidelines set forth in the California Environmental Quality Act (CEQA). We can provide legal advice as to the CEQA process in general, whether or not they are in compliance with CEQA, and help guide our supporters as to how they should conduct themselves and as to what testimony or evidence should be offered during the public meetings.
Action Points
- A community group should immediately be formed to oppose Elings Park Phase III (i. e. Friends of Los Positas Valley).
- It is advised that all the names and contact information (including email addresses) be obtained of potential opponents of the Elings Park Phase III.
- Leaders should be identified and roles should be defined.
- A meeting should be scheduled as soon as possible.
- Everyone opposed to Elings Park Phase III should contact Supervisor Janet Wolf via telephone and write a letter addressing their concerns about the project. This needs to occur prior to the April meeting.
- Need to ensure a mass turnout of those who oppose Elings Park Phase III at the April meeting; those who attend need to strongly speak up and voice their opinions in a rational manner opposing the project.
If you have any questions, please contact my office at 963-4700 to discuss.
Very Truly Yours,
Travis C. Logue, Esq.
|
