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HomeMy WebLinkAbout08.a. (Handout) Letter from John Bowen, Jr. re El Toyonal CADE.g. May 16, 2012 Honorable James A. Nejedly, Board President Central Contra Costa Sanitary District 5019 Imhoff Place Martinez, CA 94553 Dear President Nejedly: The Central Contra Costa Sanitary District (District) heard a staff presentation regarding the extension of a sewer in the El Toyonal area of Orinda on April 5, 2012. This proposal has been made by approximately two vacant -lot owners who wish to develop their vacant lots in the El Toyonal area, but who are precluded from doing so due to a septic tank moratorium in the area. At the April 5, 2012 meeting, staff recommended that the District deny the request for the District to cover non - participant costs because of inconsistency with the District's current Contractual Assessment District (CAD) policy. Staff perhaps inadvertently -- failed to fully inform the Board about countervailing arguments to the proposal, and neglected to identify the many ways in which the proponents proposal is inconsistent with the CAD Policy Statement (Revised February 1, 2001). The proposal to approve the CAD is inconsistent with letter and spirit of the District's CAD policy in numerous ways, and the proponents of the CAD don't meet the basic policy requirements to form a CAD. Therefore, at the behest of a small group of real estate speculators, the District is wasting ratepayers' resources in considering an amendment to an otherwise beneficial policy in order to pay for a very high proportion of non - participants for no obvious public purpose. Moreover, there is no substantial evidence of any water quality problem associated with the lack of sewer on El Toyonal, and therefore there is no basis to find that the public interst and/or safety necessitate District payment of a high portion of the costs of the proposed sewer extension. I submit this information for your consideration, and urge you to deny the request that the District cover non - participant costs for the reasons outlined below. Inconsistency with the Clean Water Act and the Porter - Cologne Act The project proponents and staff have failed to provide any evidence, let alone substantial evidence, of the need for the proposed project from a water quality perspective. This is particularly significant because most of Mr. Cohn's "special case" arguments allege or imply that 12 this is a need driven by water quality concerns. We respectfully suggest that there is no substantial evidence to support these claims. Simply put, there are no reports of failing or inadequate septic tanks. There are no reports of water quality violations. In contrast, by personal communication, staff of the East Bay Municipal Water District reported the following: EBMUD has not received any reports of a sewage spill in at least 5 -7 years in this area, and EBMUD staff can remember none prior to that; • EBMUD tests the water quality of San Pablo reservoir regularly, and water quality remains some of the highest in the nation; There is no evidence of fecal coliforms or any other contaminants emanating from the El Toyonal area; • Sewer line extension to El Toyonal is not an EBMUD priority; C In the El Toyonal area, any alleged benefits from septic tank abatement must be carefully balanced against impacts in increased development; (Pers. Comm. EBMUD Watershed Manager, May, 2012) Nevertheless, EBMUD has strong concerns about the following, all of which would be exacerbated by approval of the CAD and extension of the sewer up El Toyonal: • Non -point source pollution from increased densificatibn and housing development in the watershed; o Fire prevention and firefighting inaccessibility to watershed lands in the El Toyonal area due to narrow roads, high fire load, and increased traffic; © Public encroachment onto watershed lands resulting from increased development; (East Bay Watershed Master Plan) Inconsistency with CAD Program Purposes As stated in Exhibit A to the Staff Recommendation, "(t)he intent of the CAD Program is to assist single family homeowners (emphasis added) with failing or inadequate septic tanks .... The CAD Program is intended for residential properties, primarily owner occupied (emphasis added)." The proponents of the sewer may be single family homeowners, but their homes are not located in the El Toyonal area. The Cohns live in Berkeley, and wish to develop vacant lots in the El Toyonal area. The Wandners and their attorney do not live in the El Toyonal area either. Whewer their mutual h tell! is spe<_ulativue development is unclear, but none meets. the iiatv°nt Of the CAD Program Purposes. 3 There is one empty property at 43 Dos Osos. The executor of the estate, who resides in Sonoma, has understandably expressed support for the sewer as he seeks to sell the property for the highest possible price. This proponent does not meet the spirit of the CAD Program Purposes. In contrast, virtually every home owner / resident in the El Toyonal area vigorously opposes extension of the sewer. Inconsistency with CAD Formation Process According to the District CAD Formation Policy process, "(s)mall groups of property owners may be eligible for a CAD if (1) they occupy houses served by septic tanks, and (2) they seek a sewer main extension to provide for connection to the District system." Neither the Cohns, nor the Wandners meet the standard set by the District in section 1, since none occupy houses served by septic tanks. Curiously, and perhaps inadvertently, staff did not correct the inaccuracy in Mr. Cohn's letter of November 17, 2011 stating "We, the pro -sewer homeowners in the area...." Only if one considers North Berkeley a part of Orinda could one accept his self - portrayal as a "homeowner in the area." Inconsistency with District's CAD Financing Policy In order to be eligible for the District's CAD financing policy, it is our understanding that 60% of properties adjacent to the CAD must have homes served by septic tank systems. Moreover, staff's financial analysis of the extension assumes participation rates ranging from 29 to 42- percent. We respectfully suggest that these numbers are highly inflated. After conducting a thorough discussion with neighbors, we determined that the level of support was as low as 10%, possibly lower, and that most of that support was from vacant lot owners described above who wished to develop their lots, not from single - family, owner - occupied residences. The likelihood of increased future participation and repayment to the District in any time frame is therefore a highly unlikely proposition. We respectfully suggest that this should be taken into consideration as you determine how best to allocate your ratepayers' limited funds. Conclusion Despite stafrs suggestion that modest changes to the CAD Policy will facilitate approval of the El Toyonal CAD, we point out that major revision of the CAD Policy would be necessary before the proposed El Toyonal CAD could be approved and that such revisions would completely undermine the spirit, intent, and public service value of the CAD Policy. Doing so would also set a dangerous precedent for future equally undesirable CAD expansions and additional financial liability for the District. But even if a CAD could be approved here, there is no basis for the District to pay the non- participants' share of extension costs: In order to fund the nonparticipants' share of extension costs the District must achieve consistency with Section 6.20.400 of the District Code by 14 demonstrating that "the public interest and public safety may require the District itself to design and construct public sewage facilities for an existing or proposed development." No substantial evidence has been introduced that any public interest will be served or that any public safety issue will be resolved by approving the CAD and extending the sewer up El Toyonal. In fact, the following results – contrary to public interest and safety —will likely result from approval of the CAD and extension of the sewer: a Construction of 20 additional homes in a high fire -risk, slide -prone area; o Construction of a sewer line in an area prone to slides and seismic instability, increasing the probability of high future maintenance costs to the District; • High financial cost to District and low probability of repayment due to non - participation; o increased non -point source pollution from at least 20 new construction sites, 20 new homes, and their associated cars, pets and other impacts; • increased traffic congestion to already overly narrow roads on the El Toyonal Hill and associated increased safety risk; o Increased fire risk due to densification of area; We urge you to uphold staff s recommendation to deny this request. In particular, we urge you to adhere to the value of respecting community relationships by working with those who would be most impacted by this decision to ensure that imprudent and growth- inducing development to enrich a few absentee vacant lot owners does not proceed under the guise of helping the District to achieve regulatory compliance. The District's mission, vision and values should not be sacrificed to allow a few developers to grow rich at your ratepayers' expense. Thank you for your consideration of this matter. Respectfully yours, John E. Bowen, Jr.