ALIGNMENT B NOT FEASIBLE
Part of the 11/1 BOS 5-0 vote approving the Modoc Road MUP (Multi-Use Path) FMND (Faulty MND) was a send off present for Gregg Hart…which is why there wasn’t a single question asked of the dozens of legally backed CEQA challenges…from our attorneys, LTSB, and LCMWC…plus, CDFW…the box was checked on the FMND that allows the next tranche of “free money” from the $5.35MM ATP grant to be released…he was also allowed to skip off to Sacramento, if he wins today, without having the palm tree destruction on his hands…political suicide…
The County has been trying to obtain an Easement to construct an asphalt and concrete bike road through through the Modoc Preserve using back channels for over 2 years…but, no amount of wanting and wishing for it…drumming up public opinion and false marketing…etc…is going to change things…LTSB and LCMWC have the “obligation” and “enforcement” parts of the Easement Agreement worked out…and, the County has been legally notified since they were also mistaken on “chain of command”…and, unfortunately their lack of understanding has misled a number of other folks in the community…the County has been trying to market and sell them something that they don’t own…like the air you breathe…;-)
This isn’t just an open and abandoned field owned by the County to do with whatever they want…as so many people are led to believe…it is owned by La Cumbre Mutual Water Company (LCMWC) since 1925…the LCMWC customers are shareholders in the land…
In a nutshell…this is pretty much all you need to understand…
“La Cumbre Mutual Water Company as Landowner under the Conservation has the duty to comply with its terms and it may not allow others, including the County, to engage in any use or activity that violates the terms, restrictions, or conditions of the Conservation Easement. “
Now for a bit of history…
Harold S. Chase, brother of Pearl Chase, SB’s revered civic leader and First Lady…was it’s first president…he spearheaded the purchase of 2000 acres in and around Hope Ranch…and, had a hand in the forestation of the Canary Island palm trees along Modoc Road…
In 1999 a Deed of Conservation Easement was signed between LCMWC and Land Trust for Santa Barbara County…who is now driving the boat on this issue…they ultimately hold the cards for the Modoc Preserve…not the other way around…the Easement is attached to this property until the end of time…
Why don’t we just let the attorneys for LTSB set the “record straight” in their own legally backed words…in this letter to the County and LCMWC…
“The Modoc Preserve, which is a portion of the above-referenced Property, is subject to the terms, conditions, and restrictions of the Conservation Easement, which is held by the Land Trust.
La Cumbre Mutual Water Company as Landowner under the Conservation has the duty to comply with its terms and it may not allow others, including the County, to engage in any use or activity that violates the terms, restrictions, or conditions of the Conservation Easement. We are specifically including the County as an addressee of this letter to ensure the County is apprised of the Landowner’s obligation to comply with the Conservation Easement and the Land Trust’s legal obligation to enforce the Conservation Easement.
Plans and other documents related to this Project appear to have been developed without due consideration for the provisions of the Conservation Easement or the terms in it that empower and obligate the Land Trust to ensure perpetual conservation.”
Furthermore, LTSB is legally required and has an obligation to enforce the provisions of the Conservation Easement as explained below in their attorney letter:
“The Land Trust Is Required to Enforce the Conservation Easement in Accordance with its Terms
As the grantee of this Conservation Easement, the Land Trust is charged with enforcing its terms, conditions, and restrictions. This enforcement obligation is codified at Civil Code sections 815–816, which created conservation easements. In addition, the Corporations Code applicable to California nonprofit public benefit corporations requires the Land Trust to prevent loss of or injury to its charitable assets. The Land Trust’s interests in real property, including conservation easements, are assets of the Land Trust. The Land Trust’s obligation to appropriately steward its charitable assets is enforced by the California Attorney General through its Charitable Trusts Section. Failure of the Land Trust to competently manage its charitable assets could result in penalties or even loss of its state status as a nonprofit charitable corporation.
This obligation is also a requirement of being a land trust accredited by the Land Trust Accreditation Commission, and the Land Trust is required to enforce each of its conservation easements in accordance with each of their terms. The Land Trust has adopted a written policy and developed written procedures for documenting and responding to potential conservation easement violations, is obligated to investigate potential violations in a timely manner and promptly document all actions taken, and must involve legal counsel as appropriate to the severity of the violation and the nature of the proposed resolution (Land Trust Alliance Standards and Practices, Standard 11.C) Section 8 of the Conservation Easement states that if there is a threatened violation, the Land Trust may resort to a lawsuit, including an injunction to stop the violation. The Land Trust will be entitled to damages and recovery of its attorneys’ fees and costs both under the Conservation Easement Section 8 and under California Civil Code section 815.7. Section 815.7 also permits the Land Trust to not only recover the costs to restore any harm to the Easement Area and other damages, but also the loss of scenic, aesthetic, and environmental values.”
Still following along?
Take a breather because there are some very important points here…
“Overview of Conservation Easement Provisions
The Recitals section of the Conservation Easement states that the Easement Area shall be preserved and maintained by permitting only those land uses in the Easement Area that do not significantly impair or interfere with identified Conservation Values. Conservation Values are defined as the natural, open space, scenic, wetlands, ecological and wildlife habitat values, which include, but are not limited to, “vernal marsh, southern willow scrub, annual grassland and oak woodland habitat” (“Conservation Values”).”
It’s kind of hard to figure a path forward…no pun intended…;-) for an ADA compliant road/path/trail in the Preserve…using the County’s preferred road building materials and methods of construction (destruction)…
Back to LTSB attorney’s letter to the County and LCMWC…
“Please provide trail design, construction, and management plans of adequate detail to allow the Land Trust to evaluate consistency with the relevant terms of the Conservation Easement. Please also include specific information on how, and by whom, the Project will manage the kinds of bicycles allowed to use the path, speeds, traffic intensity, and lighting, all of which may be incompatible with the protection of the Conservation Values.
In addition, please provide information to show that the construction of and use of the bike path:
• Will not result in soil degradation of erosion (Section 3, preamble);
• Will not result in pollution or degradation of surface waters that significantly impact the existing wetlands, uplands, or wildlife habitat in the Easement Area (Section 3, preamble);
• Will not result in the impairment of open space vistas (Section 3, preamble);
• Will be consistent with the purpose of the Conservation Easement to “assure that the Easement Area within the Property will be retained in perpetuity in its natural, open space, scenic, wetlands,
ecological and wildlife habitat condition, use and utility, and to prevent any use of the Easement Area that would significantly impair or interfere with the Conservation Values” (Section 3, preamble; Section 1); • Will prevent use of the path by motorized vehicles, such as electric bikes, which are a concern of the Land Trust (Section 4(d));
• Will prevent dumping and garbage (Section 4(e));
• Does not cause significant degradation of topsoil quality, significant pollution, or a significant increase in the risk of erosion (Section 4(f));
• Will not alter the general topography or natural drainage of the Easement Area, including the excavation or removal of soil, sand, gravel, or rock (Section 4(g));
• Will not result in the alteration or manipulation of watercourses located in the Easement Area or the creation of new water impoundments or watercourses (Section 4(h));
• Does not generate signification noise, traffic, dust, artificial lighting, or crowds or which may impair the natural open space, scenic, wetlands, ecological, and wildlife habitat values (Section 4(i)); and
• How public access to the Easement Area will be managed and restricted to protect public safety and the Conservation Values (Section 3(h)).”
Again, for only a couple of hundred yards…the County could just simply put this issue to bed and get on with the bidding process and construction by extending the Obern Trail with a vehicle barrier…the remaining distance up to Via Senda…Greenbelt Alignment…win…win…win…
Cyclists get their MUP away from cars…equestrians and horses keep their natural trail away from bikes and cars…and, pedestrian walkers…dog walkers…birders…nature lovers get to keep the trees and hiking trails away from bikes and cars…
We all get to save a bunch of time and money spent on potential litigation…
The SB County Public Works application for the $5.35MM ATP grant explicitly stated “The project will reduce barriers along the corridor by REPLACING SECTIONS OF CLASS II BIKE LANES WITH A MORE SAFE AND ATTRACTIVE SEPARATED PATH, suitable for people of all ages and abilities.”
Key words: REPLACING THE CLASS II BIKE LANES…
Which is exactly what we have been asking for…Greenbelt Alignment…or, the Obern Trail extension… Building the MUP, up on Modoc Road, which is what the County asked for in the first place and is currently designed for the western half of the MUP. So, just like the 4.5 mile Obern Trail from Modoc Road out to Goleta Beach does not have Class II bike lanes running on either side of it…the Modoc Road MUP was never intended to also have Class II bike lanes…this is right up on the top of the application and was used to sell the $5.35MM ATP grant to CalTrans in Sacramento…
The County did not meet with Land Trust on this MUP issue until 2 weeks after receiving an impactful legal letter mid-August…parts of which were shared above…the Water Company and the County did have a couple of interactions discussing conceptual elements of a potential project…but, nothing concrete…please pardon the pun…;-)
The most important thing to know is that currently LTSB and LCMWC are both on the same side of this issue and have very good law firms behind them…quite impressive, really…definitely up to the task of not being bullied into violating the terms and provisions in the 1999 Deed of Conservation Easement Agreement that both parties signed with the intent protecting the Preserve in it’s natural state for this generation and generations to come…they both take this obligation and responsibility very seriously…because, without trust…there is no Land Trust…
They depend on and are entrusted with material donations of real property and money…it goes without saying that those donors need a solid assurance that their wishes be upheld and count on Land Trust to that end…
So, I predict that the County…and, then the public, will soon get a lesson on private property rights and open space Easement Agreements…hard to see a path forward for the feasibility of building an asphalt and concrete ADA compliant road in the Preserve…Alignment B…when the County has been told several times now that what could possibly be allowed is an unpaved path without retaining walls…
ASPHALT ROAD WITH CONCRETE RETAINING WALLS NOT ALLOWED
Building the $8MM MUP in the existing asphalt infrastructure, Greenbelt Alignment…out of the Preserve north of the tree line, like they have already designed the western half of the MUP…makes the most sense…and, also saves the most cents…;-)
The application for the $5.35MM ATP grant also explicitly says “The project will reduce barriers along the corridor by REPLACING SECTIONS OF CLASS II BIKE LANES WITH A MORE SAFE AND ATTRACTIVE SEPARATED PATH, suitable for people of all ages and abilities.
So, just like the 4.5 mile Obern Trail from Modoc Road out to Goleta Beach does not have Class II bike lanes running on either side of it…the Modoc Road MUP was never intended to also have Class II bike lanes…this is right up on the top of the application and was used to sell the $5.35MM ATP grant to CalTrans in Sacramento… Page 4 General Project Information Modoc Road Multimodal Path Gap Closure SUMMARY OF PROJECT SCOPETherefore, like we have been saying…there is plenty of room on Modoc Road to build the MUP with a vehicle barrier without cutting any trees down (Alignment A) or going into the Modoc Preserve (Alignment B)…by replacing the existing wide Class II bike lanes with the vehicle separated Class I MUP.
