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HomeMy WebLinkAboutMINUTES - 02041992 - IO.3 TO: BOARD OF SUPERVISORS Contra FROM: 'i.i;• � .. \•. INTERNAL OPERATIONS COMMITTEE Costa `T County DATE: January 27, 1992 SUBJECT: STATUS REPORT ON PROPOSED CHANGES TO ONE OF THE CONDITIONS OF APPROVAL FOR THE MARSH CANYON LANDFILL SPECIFIC REOUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATIONS: 1 . Request the Community Development Director to forward to our Committee on March 9, 1992 the appraisal report from the appraiser selected by Waste Management and approved by the County regarding a fair value for the purchase and other mitigation of the property of the four property owners living across from the entrance to the proposed Marsh Canyon Landfill site. 2 . Request the County Counsel 's Office to: A. review the testimony provided on this issue at the Board' s hearing March 20, 1990 on Land Use Permit 2010-90, and B. provide its advice to the Board of Supervisors on the potential risks which are outlined in Chuck Zahn' s memorandum dated January 22, 1992 relating to the adoption of the revised Condition of Approval # 35 . 1a as attached to the Board Order on this subject dated December 17, 1991 . 3 . Provide an opportunity for the members of the Internal Operations Committee to consult with Supervisor Torlakson and share with Supervisor Torlakson the Committee ' s concerns and reservations about adopting the language which Supervisor Torlakson forwarded to the Board on December 17 , 1991 . CONTINUED ON ATTACHMENT: X YES SIGNATURE: RECOMMENDATION OF COUNTY ASD 1 O RECOMMENDATION OF BOARD COMMITTEE APPROVE OT,1'iE _11A4 / SIGNATURE(S): ODER SUNNE WRIGHT MC PEAK ACTION OF BOARD ON FAbrualry 1992 APPROVED AS RECOMMENDED X OTHER X The following persons appeared to speak on the above issue: Will Cossel, Chair, Marsh Canyon Local Advisory Committee, presented a written recommendation with respect to LUP Condition 35.1.a for the Board's consideration. Ric Schiff, P.O. Box 744, Clayton, commented on issues including eminent domain, a fair price for their property, and relocation expenses. Supervisor Torlakson requested that the recommendation from the Marsh Canyon Local Advisory Committee be referred to the Internal Operations Committee for consideration with the item in March. IT IS BY THE BOARD ORDERED that recommendations 1, 2, and 3 are APPROVED; and the letter from the Marsh Canyon Local Advisory Committee on issues relative to Land Use Permit Condition No. 35.1.a is REFERRED to the Internal Operations Committee for their consideration at their March 9, 1992 meeting. VOTE OF SUPERVISORS X I HEREBY CERTIFY THAT THIS IS A TRUE UNANIMOUS(ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. CC: please see Page 3 . ATTESTED February 4, 1992 PHIL BATCHELOR,CLERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR M382 (10/88) BY DEPUTY I0-3 -2- BACKGROUND: On December 17, 1991, Supervisor Torlakson asked the Board to refer to our Committee proposed language for an amendment to Condition # 35 . 1a of the Conditions of Approval for the Land Use Permit for the Marsh Canyon Landfill . On January 27, 1992 our Committee met with Sanford Skaggs and Mary Lou Lucas, representing Waste Management; with Lillian Fujii, representing the County Counsel ' s Office; Chuck Zahn, representing the Community Development Department; and the owners of three of the properties in question: Mr. and Mrs . Schiff, Mr. and Mrs . Vieville and Mr. Schehrer, representing KYMCO, Inc. Mr. Zahn presented the attached staff report dated January 22, 1992 which recommends that no action be taken to attempt to change the Condition of Approval and which recommends that the Department report back to our Committee after receipt of the appraiser' s report on the value which should be attached to each of the parcels of property. Mr. Zahn outlined his reasons for these recommendations, which include the fact that the Board of Supervisors has already adopted the Conditions of Approval, including the current wording of Condition 35 . 1a. In addition, it was noted that the permittee is now vested with certain rights which would require that the permittee concur with any change in wording of the Conditions of Approval . Mr. Schiff noted that he has owned the property since 1989 . He expects that if he is going to be required to sell his property that he will be compensated for relocation costs and the fact that his property taxes will be higher somewhere else because of the passage of time. Mr. Schehrer noted that his firm purchased the property in 1985 with the intent to develop it. He noted that the two appraisals which have been done to date are 225% apart and that he is, therefore, concerned about the validity of being required to accept the word of any one appraiser. Mr. Vieville commented that he and his family have lived on their property for ten years, long before there was any thought of a landfill across the street from them. The appraisal which has been done does not take into account relocation costs, nor the fact that his property is almost paid off, whereas somewhere else he may have to take out a 30 year mortgage at much higher cost, compared to the purchase price of his current property. Ms . Fujii noted that the Land Use Permit is already subject to a lawsuit which, if successful, would make the proposed purchase of the four properties moot, because there would not be a landfill on this site. Mr. Zahn added that November of 1987 was the first official public indication by Waste Management that they were interested in developing a landfill at the Marsh Canyon site. The application process was undertaken in late 1988 . Mr. Skaggs commented that the negotiations which Waste Management had entered into with the property owners were just that - negotiations . No promises were made nor were any conditions intended to be carried out unless a settlement was reached with the property owners . This entire process was outside the scope of the Condition of Approval and exceeded anything Waste Management was required to do - a point also noted in the staff report. Mr. Skaggs contended that if Waste Management had complied strictly with the Condition of Approval they would, to date, have had to do nothing. Mr. Skaggs also noted that Mr. Schiff had bought the property in 1989 knowing that this was one of the five sites that was being looked at as a possible landfill site. Mr. Skaggs noted that it was his understanding that the Schiffs had purchased their property for $375, 000 and that their last demand of Waste Management was for $900,000, with an escalation clause that would have increased the price to $1 . 1 million. I0-3 -3- Mr. Schiff agreed that they had known that this was one of five sites but had no way to know that this might be the final site. Mrs . Vieville commented that she had testified before the Board of Supervisors on March 20, 1990, asking for more protection in the Conditions of Approval and that the current language of Condition 35 . 1a was all they were able to obtain from the Board of Supervisors when the Board approved the Land Use Permit on March 20, 1990 . Mr. Vieville contended that there had been a motion introduced at the hearing on March 20, 1990 dealing with property value impacts, which called for the payment of relocation costs, and that the motion was approved on a 3 : 1 vote with one abstention. He asked why this motion was never reflected in the Conditions of Approval . Mr. Zahn replied that he believed that the subject matter of this motion was reflected in the Conditions of Approval through the requirement for a broad scale property value study, which is currently underway. Mr. Zahn said that this motion did not apply to the four specific properties now in question which are covered in Condition 35 . 1a. In reply to a comment that the Community Development Department in late 1989 doubted that the Marsh Canyon site would be chosen, Mr. Zahn noted that in 1989 , a caller to the Community Development Department would have been told, in regard to the Marsh Canyon site, that it was one of five sites which were being included in the Solid Waste Management Plan and the General Plan. Supervisor Schroder indicated that he would be unable to reach any decision in this matter until three things had occurred: 1 . The Internal Operations Committee had received and had an opportunity to study the appraiser' s reports on the properties in question. 2 . He had had an opportunity to discuss the matter in more detail with County Counsel . 3 . He had had an opportunity to discuss the issue in more detail with Supervisor Torlakson. Supervisor McPeak noted that she does not agree with Supervisor Torlakson' s proposed language. She also noted that it is her belief that the Board of Supervisors is perfectly capable of and willing to interpret the Conditions of Approval . She also indicated that County Counsel should be asked to review the tape of the March 20, 1990 hearing on the Land Use Permit to determine what, if any, commitments were made by the Board of Supervisors . Supervisor McPeak further indicated that the residents deserve a process and timetable by which this issue should be disposed of, but only when it is clear that there is, in fact, going to be a landfill located on the Marsh Canyon site. Our Committee has tentatively set March 9 , 1992 as the date for our next consideration of this issue. By that date, our Committee expects to receive a copy of the appraiser' s report from Waste Management and will have discussed the situation in more detail with County Counsel and Supervisor Torlakson. cc : County Administrator Sanford Skaggs, Waste Management c/o McCutchen, Doyle, Brown & Enersen P.O. Box V Walnut Creek, CA 94596 Mary Lou Lucas, Waste Management 1801 Oakland Boulevard, Suite 250 Walnut Creek, CA 94596 County Counsel Community Development Director Chuck Zahn, Assistant Director, CDD Mr. & Mrs . Vieville Mr. & Mrs . Schiff Mr. Schehrer ( for KYMCO, Inc. ) CONTRA COSTA COUNTY COMMUNITY DEVELOPMENT DEPARTMENT TO: Internal Operations Committee Supervisor Robert I. Schroder, Chair Supervisor Sunne Wright McPeak FROM: Harvey E. Bragdon, Director of Community Development By: Charles A. Zahn, Assistant Director (;t-1- DATE: January 22, 1992 SUBJECT: DEADLINE FOR COMPLYING WITH CONDITION OF APPROVAL 35.1a, LAND USE PERMIT 2010-90, MARSH CANYON SANITARY LANDFILL RECOMMENDATIONS 1 . Retain the existing requirements of Condition 35.1a. 2. Request the Community Development Department to report back to the Internal Operations Committee approximately 30 days following the issuance of the appraiser's report to the permittee. FISCAL IMPACT None to the County's General Fund. BACKGROUND/REASONS FOR RECOMMENDATIONS Four properties--four land holdings with three homes--occupy a sensitive location opposite the northern boundary of the Marsh Canyon Sanitary Landfill site (see accompanying map). The properties and the landfill site are separated by Marsh Creek Road. The properties' location . was found to be sensitive by the landfill's Environmental Impact Report because the building sites are perched at elevations of about 50 to 80 feet above Marsh Creek Road overlooking the landfill entranceway (at approximately parcel 13 on the map) with direct views into the landfill valley. The landfill's Environmental Impact Report determined that the project's impact on the four properties would be both significant (adverse) and physically unmitigable, primarily for aesthetics but for a combination of reasons. From an aesthetics standpoint, the viewshed would be changed from a grazed valley to a part rural and Internal Operations Committee Date: January 22, 1992 Deadline for Complying with CoA, LUP, Marsh Cyn Sanitary Landfill -2- part landfill landscape. The landfill's layout and landscaping would be only partially effective in screening the landfill's facilities and operations from the particular properties because of their (the properties) elevation and orientation. Noise from entranceway traffic and landfill operations, landfill lighting, and other factors, also could be disturbing. Although the change in veiwshed land use would be substantial and there would be an increase in annoyances, the EIR did not find that the landfill would make the properties uninhabitable for residential use. Noise levels along Marsh Creek road, for example, already exceed residential levels. The EIR also did not recommend that the properties be added to the landfill site or that they be put to another land use. The EIR did recommend that the landfill sponsor make a good faith effort to acquire the properties from their present owners. Consequently, the Conditions of Approval adopted for Land Use Permit 2010-90 contained the following requirement (Condition 35-1 a): The applicant shall put forth a good faith effort to purchase the four existing properties directly across Marsh Creek Road from the project site. A good faith effort shall be deemed to mean a bona fide offer to purchase the properties for their fair market value, as such is determined in an appraisal prepared by a qualified real estate appraiser acceptable to the County. After the Land Use Permit was approved in March, 1990, the landfill sponsor and the owners of the properties engaged in negotiations without the involvement of the County and outside of the process specified by Condition 35.1 a. When the parties failed to agree, several of them in different ways asked Supervisor Torlakson and County staff, in late 1991, to arrange for the implementation of the Condition. County staff met with the parties and, as a result, the landfill sponsor hired an appraiser who is familiar with East County real estate, but has no ties to any of the parties, to value the properties. His report is now expected to be ready in late February. During the discussions with the parties, an attorney for some of the property owners proposed the amended language for Condition 35.1a which is proposed for consideration in the Board Order. At that time, staff pointed out the following issues: -The amendment was substantially different from the terms of Condition 35.1 a because it went beyond the making of a good faith effort to acquire the properties to requiring their acquisition without qualification. Internal Operations Committee Date: January 22, 1992 Deadline for Complying with CoA, LUP, Marsh Cyn Sanitary Landfill -3- - The proposed use of the County's eminent domain powers to acquire the properties is questionable because their acquisition is not for a public use nor a clearly-defined public purpose. - The substantial change to Condition 35.1a is beyond "clarification". It would require a formal amendment, concurred with by the permittee (because the project is vested), authorized by the Board, to be processed through the County Planning Commission and adopted by the Board. Another issue is that the amendment could allow any of the property owners to obstruct the landfill project by refusing a reasonable settlement. CAZ:se cz:35-1 WC.mem cc: County Counsel Waste Management, Inc. Property Owners Vieville Schiff Burks KYMCO, Inc. 23 24 2 4`., n. 32 33 x r rn13 /' Ert : z7. 38 `::':. 1� `�<'`• :. BI : 37 29 r y. 40- "9 t' •tet `<`: +•� r: 3 .. :::. APP..: ,ATE - tLAN1j F1. pR p ` PERTPu BY WttA). Oprjo , N:..:: ;:... PAR.-._` CE-L--. 1 , S�hztf :. 3. RZAGE 2. Burks 078 3. AOS`"' �ieville 07g-140_018 19. 972 4• Soh hr�r 078-140-020 140-019 019 4 0. 297 0 020 2 . 755 41 . 699 NORTH Joe No. CAL aes. fl, PRAWN 7008.S i0 SCgLe Ag NOTE: Peter to Tab! o ECKE ��•� PATE NOTED ow�ers and parcel numbers ChDAT �O 511/499 � U4vC r.p S Golder Assoc'aresPrflAerty Ownpership� r?C• ptron Map Mar"WIllent of t,1h 2 -1 CONTRA COSTA COUNTY COMMUNITY DEVELOPMENT DEPARTMENT DATE: February 4, 1992 TO: Supervisor Sunne McPeak, Chair Members, Board of Supervisors FROM: Marsh Canyon Local Advisory Committee Wil Cossel, Chair f�z� SUBJECT: CONDITION OF APPROVAL 35.1.A At the February 3, 1992 meeting of the Marsh Canyon Sanitary Landfill Local Advisory Committee, property owners raised several issues relative to Land Use Condition 35.1 .a including: *relocation expenses; *tax base differential; *loss of use of capital; *cost of living increases from time of property appraisal until close of escrow. In response to these concerns, the Committee moved to forward the following recommendation to the Board of Supervisors: The Marsh Canyon Sanitary Landfill Local Advisory Committee encourages the Board of Supervisors to interpret Land Use Condition 35.1.a in an equitable manner for all concerned. Further, that the issues that this-r-ond' ' ted-prior to any impact on the property owners by construction of the landfill, or within one year, whichever occurs first. VC:\ vc4: MRSLACCO.BOS