OP-ED Greenhorn Creek Wetlands protest of Angels Camp City Council

   A resident of Greenhorn Creek and former City Councilman Craig Turco presented a memo to the Angels Camp City Council at their July 15, 2014 meeting.

    The letter and memo state:

     "This memo shall serve as a formal protest in opposition to the adopting
"RESOLUTION NO. 14-16, A RESOLUTION APPROVING ENGINEER'S REPORT, CONFIRMING DIAGRAM AND ASSESSMENT AND DIRECTING AUDITOR OF CALAVERAS COUNTY TO CONTINUE TO COLLECT ASSESSMENTS FOR FY  2014-2015 FOR THE LANDSCAPING & LIGHTING DISTRICT NO. 1 -- GREENHORN CREEK."

   Aside from the pending legal action relating to the above mentioned items, the public needs to be made aware of certain facts regarding the proposed LLD expenditures, facts which the City has failed to disclose for several years.

   The public also needs to be made aware of comments and lack of action on the part of the City Administrator which has exacerbated the matter to such a point that legal action had to be initiated.

   I will highlight some of the issues which this Council has failed to realize, choosing to ignore the facts, logic and reason regarding the appropriate expenditures for the special LLD District #1:

   Let's Address Responsibility:

   1.  In developing the golf course, the developer was required to obtain a permit from the Corp of Engineers (COE) to modify the wetlands in the project area.

   The permit, referred to as the 404 Permit, has only one name listed as the permitee. The permit holder is the Golf Course / Grupe.

      2.  "The pond(s) management is the responsibility of the golf course maintenance." Res. NO. 92-16.

      3.  One of the issues contributing to the loss of wetlands is lack of water flow.  During a public workshop, the City Administrator claimed that a COE mandate to flow 3.5 GPM to the main pond was an "urban myth".

     Not only was the City Administrator incorrect, but he compounded the issue giving the golf course a false sense of lessened responsibility.

    Barden Stevenot (GCG&CC) accepting responsibility of water flow to lakes/ponds-Ref:  Bardon Stevenot letter to COE 10/12/93.

     4.  "...The maintenance of the lakes and ponds within the master Greenhorn Creek (aka GCG&CC) project are the responsibility of the Golf Course maintenance staff...GHC CC&R's.

    5.  The document titled "Mitigation Modification Request for Greenhorn Creek" establishes GHC as the permittee requesting to deepen the large pond/lake.

    This request would modify cattails growth.  Ref:  Mitigation Modification Request for Greenhorn Creek Formerly Gold Cliff Golf and Country Club (9/3/1999).

    6.  "It was determined that the Greenhorn Creek Golf Course, formerly the Gold Cliff Golf Course was not in compliance with the following condition: ...." The Corps of engineers is willing to work with Grupe Company and Greenhorn Creek Resort and Golf Course throughout the remediation process.

    You may contact our office at any time if you have questions." Ref: COE letter to William Murphy (Greenhorn Creek/Grupe Manager) 11/3/2003.

   Obviously the COE recognizes the Golf Course/Grupe as the responsible party for maintaining compliance of the 404 Permit.

    7.  Daniel Reidy, the original LLD attorney, in a memo to Richard Matranga, states that ..."The lakes and ponds in question have not been identified as areas of work for the District..."

    Mr. Reidy further states, "In order for the District to include the lakes and ponds within the landscaping maintenance areas of the District, the Engineer of Work would have to demonstrate in the Engineers Report that the desired maintenance work will confer special benefits to all the lot owners in the District over and above the public at large and would not be primarily of special benefit to the golf course by providing a broader source of funding for maintenance of water features of the golf course."

    This is a key point since many who enjoy the water features of the golf course are members, but do not live in Greenhorn Creek. Ref:  Reidy to Matranga memo 9/17/2004.

   8.  In a memo from Matranga to the LLD1 Ad HOC Committee, he supports the memo from Daniel Reidy dated 9/17/2004 echoing Reidy's comment from above, "In order for the District to include the lakes and ponds within the landscaping maintenance areas of the District, the Engineer of work would have to demonstrate in the Engineer's Report that the desired maintenance work will confer special benefits to all the lot owners in the District OVER AND ABOVE THE PUBLIC AT LARGE and would not be primarily of special benefit to the golf course by providing a broader source of funding for maintenance of water features of the golf course." Ref:   Matranga to LLD 1 AD HOC memo 10/7/2004

    9.  LLD Engineer Ghio to City Administrator Shearer supports the belief that LLD responsibility is limited to the MONITORING of the wetlands.

    Section C #7  of Ghio's memo states..."Wetlands- includes annual monitoring of preserved and compensation wetlands required by the Wetlands Preservation and Conversation Plan and the US Army Corp of Engineers 404 Permit."

      Ghio's memo further states in Section 7, "Personal conversation - Gene Deaver, previous LLD engineer, "The LLD was never intended to perform any work in the Wetlands areas.

    There was no work projected to be required based upon the Army corps requirement.  Should maintenance have been required, it was the understanding that it would be the responsibility of the developer of the golf course. " Ref: Memorandum from Ghio to Shearer 2/18/2005

    10.   The public should also be made aware the LLD has NO easement rights to any of the wetlands within the Golf Course.  So, how could the LLD be held responsible for performing maintenance?

   11.  After discussions with Michael McHateen and then City Attorney Richard Matranga, the City agreed to hire special counsel Michael Shanahan to address the wetlands issues.

   This is part of what Mr. Shanahan concluded,  "the City is not legally responsible to restore and enhance the mitigation wetland areas in the Project as proposed by the 2012 Horizon Water and Environment, LLC report.

    Whether to assume responsibility for the restoration mitigation and enhancement work recommended in the 2012 Horizon plan is a business and policy decision for the City."  Ref:  Memo to Michael Mchatten from Richard P. Shanahan 4/2/2014

  If the City wants to engage in a business partnership with the Golf Course, then so be it.  The City will then have to budget general funds to participate.   

   The above are just some of the highlights regarding this matter of responsibility for the Golf Course wetlands.

   Over the years we have provided volumes of documentation to the Council /City in order to make the appropriate conclusions.

    As a majority they choose not to listen.  It would be interesting to hear their individual thoughts on why they choose to defy the facts.

   Now to Address Engineer's Report for LLD District #1 2014/2015:

   1.  On page 8 of the proposed 2014/2015 proposed Engineer's Report, Mr. Bliss notes, "In 2013-2014 the District invested $307,000 in direct ONE-TIME improvements and mitigation."

   On page 9 of the proposed 2014/2015 LLD budget he states, "As previously stated, significant mitigation improvements will be made to the wetlands ($307,000) beginning 2013."

   The $307,000 is a surplus of monies the City inappropriately collected for road maintenance, which should have been repaid to the residents of the District.

   Mr. Bliss does not describe how these "significant mitigation improvements" will be made.

   If there is a plan for the improvements, they have not been identified in the proposed 2014/2015 LLD Engineer's Report.

   Mr. Bliss must not be aware that the City's wetlands expert Kevin Fisher (Horizon Water and Environment) addressed the CC on the very nature of wetlands mitigation at the Council meeting of 5/6/2014.

   Mr. Fisher recommended to the Council the most cost effective way to satisfy the non-compliance of the Golf Course's 404 Permit was to pay an in-lieu fee.

    In his report Mr. Fisher states "The original mitigation plan utilized the best available mitigation sites and therefore the expansion of existing wetland features is not recommended.

    Contribution to an in-lieu fee program is proposed to offset the shortfall in wetland acreage."

     Mr. Bliss does not address this anywhere in the Engineer's Report.  In fact, the total loss of acreage is less the 1.0 acres.
 
    If you use a high end $200,000/acre in-lieu fee, this leaves (using Bliss' numbers) $107,000 unaccounted for.

   2.  Coincidentally on page 9 of the proposed Engineer's Report we find a new category titled "Replacements".

    This category did not exist until the 2013/2014 budget year when the City Administrator determined that we were going to use the roadway surplus to pay for the gold course non-compliance of their 404 Permit.

   Mr. Bliss defines this new category as follows:  "Beginning in 2013/2014 explicit replacement costs are included in the Engineer's Report, existing dedicated funding, often referred to as "reserves" will be used to augment for replacement costs as needed."

   What specifically is this for?  If it has to do with the landscape contract, we were told it was an all-inclusive contract.

   Where did these reserves come from?  Are these the roadway surplus funds which should be paid back to the LLD residents?

   Who instructed Mr. Bliss to create a catch-all fund of monies not spent for their intended uses?

    3.  On page 11 Table #2 the 2014/2015 Engineers Report sets aside $20,000/year for wetlands maintenance.  Why?

    Mr. Bliss does not detail the nature of work to be performed.  All the Engineer's Reports from 1995-2003 allowed for $2800/year.

    The majority of these monies went to a consultant required to monitor the Elderberry habitat and cultural resource preservation areas.

    In 2005 and on, under the protest of the LLD Engineer it was raised to $5000-$6000/year.  From 2003-2010 the LLD budgets allowed for a total of $40,200 for wetlands maintenance.

   The total spent in the same time frame was $11,304, $1,704 of which was an unauthorized expenditure.

   So the true total for the period was $9,600!  Do the math and it tells you that $28,896 was left on the table.

   Keep in mind that the LLD Committee included the City Administrator, one or two Council members, the manager of the golf course and LLD residents, some of who reside adjacent to the main pond.

   Now you have to ask yourself, if the City's wetlands consultant Kevin Fisher informed the Council at their meeting of 5/6/2014, that little if any maintenance is to be performed on the wetlands, then why and what does Mr. Bliss have in mind for $20,000/year he is setting aside for wetlands maintenance?

    On page 12 Table #3 the 2014/2014 Engineers Report sets aside $39,000/year for water.  This is a $16,000-$17,000 increase over the past two years.

   Mr. Bliss does not justify this expense.  The LLD has no water source.  Over the last 18 years, the LLD only paid for metered water for landscaping, with only two known exceptions.

    How does Mr. Bliss justify a 42% increase in water expense?  The only explanation might circle back to the City Administrator.

   At the CC meeting of 5/6/14, the matter of water flow to the golf course wetlands came up.

   Kevin Fisher, the City's wetlands expert stated that it was critical that a consistent water flow be maintained to the main golf course pond/lake.

   When Councilman Lynch asked who was going to pay for the water, City Administrator Michael Mchatten stated, the City would monitor and provide the water.

   Did he mean the City (general fund) or the LLD? If the LLD what is the justification?

   Please note the above referenced documentation. "In addition to the 3.5 GPM, the developer was to provide a water source utilizing Angels Creek or on property wells.  Barden Stevenot (GCG&CC) accepting responsibility of water flow to lakes/ponds -Ref:  Bardon Stevenot letter to COE 10/12/93

    5.  On pages 15 & 16 of the 2014/2015 Engineers Report Mr. Bliss discusses special benefit, specifically improved views and park improvements.

   Regarding the improved views, views of what?  The majority of the homes in Greenhorn Creek can't see the golf course, let alone the water and wetlands features of the golf course.

    The only way the majority of the residents could view the attributes of the golf course would be if they paid a green fee or membership to play on the golf course, which is private property.

    With regard to park improvements, what park? Is Mr. Bliss intimating that the golf course is a park?

   It is private property with permission to enter only for those who have paid to golf through membership or a green fee.   Signs at the entrance to the golf course emphasize for golfers only.

   As mentioned prior, this City Council and this City Aministrator choose not to embark on the path of reason based on the facts.

   Instead they choose to make the rules as they go, ignoring the law and recommendations of "their" experts.

   The following is the recommendation from the City's wetlands expert Richard P. Shanahan:

   "You should send a letter to the Army Corps responding to its letters dated April 10, 2012 and January 8, 2004. The letter should refute any permittee obligation under the 404 Permit, decline to pay or accept liability for any in-lieu fees that the Army Corps may claim are due because of permit noncompliance, and invite the Corps, if it disagrees, to provide documents to demonstrate the transfer of the permittee responsibilities to the City and City acceptance of that transfer."

   The City failed to act, which may have prevented the current situation.

   Again, aside from the pending litigation against the City on this matter, for the reasons and unanswered questions listed above, I oppose the adoption of "RESOLUTION NO. 14-16.  A RESOLUTION APPROVING  ENGINEERS REPORT, CONFIRMING DIAGRAM AND ASSESSMENT AND DIRECTING AUDITOR  OF CALAVERAS COUNTY TO CONTINUE TO COLLECT ASSESSMENTS FOR FY 2014-2015 FOR THE LANDSCAPING & LIGHTING DISTRICT NO. 1 - GREENHORN CREEK."

   Written by Craig Turco of Greenhorn Creek.