Ventura County Reporter – January 30, 2003
Lee Quaintance walks through a fertile field off of Victoria Avenue in Oxnard on an unseasonably warm January day. The rich brown dirt, used to grow lima beans, celery and a cornucopia agricultural products, gives off a pleasant smell in the heat. This 135 acre field is now slated to become Seabridge, a water-oriented, mixed use development of 708 dwellings, 169,000 square feet of commercial space, 32.5 acres of new canals and 16.5 acres of parks, beaches and recreational paths. But while the developer, Oly-Mandalay General Partnership, envisions greenbacks in this verdant swath of brown soil, Quaintance sees only red. “The developer plans to construct two beaches that will could make Kiddie Beach seem pristine in comparison and they pushed this scheme through the development process without any public participation in the project’s lay out. It’s a potential disaster that will come back to haunt the City and County if this enterprise is built the way it is currently designed.”
Kiddie Beach is the notoriously polluted beach close to the mouth of Channel Islands Harbor and will undergo a $1.5 million cleanup (see related article). The Seabridge plan calls for dredging canals to accommodate a new marina with nearly 500 boat slips. Quaintance, a 63 year old native of Oxnard and member of the environmental watchdog non-profit group the Beacon Foundation, is most troubled by the development’s plan to construct two beaches at the end of what will be called Shallow Bay. “With all the problems we’ve had with pollution at Kiddie Beach, you would think these folks would know better than to build two beaches up at the north end of the harbor.
Oddly, the Ventura County Star reported on Monday that the developer’s spokesman, Bill Wynne, stated that there are no plans to add any kiddie beaches at Seabridge. This doesn’t jive with the Supplemental Environmental Impact Report for the project which states that “A shallow bay will be created in the northeast portion of the project site for activities such as wading, swimming, wind surfing, or paddleboats.” And his comment to the paper contradicts the November 21, 2002 staff report to Oxnard’s Planning Commission by the city’s Planning and Environmental Service Department. The report states “Recreational areas also include several park sites throughout the development, two public beaches on either side of the bay…” Indeed, in a mailer Wynne sent out June 21, 2002, he writes that “The ‘Little Fin’ shallow bay for small sailboats and kayaks, the sandy wading pool, as well as open channels and parks provide ample opportunities to participate in social waterfront activities.”
John Flynn, the Chair of the Ventura County Board of Supervisors thinks the beaches are ill-conceived. “That’s a big mistake and they ought to drop that,” Flynn told the Reporter. “That just doesn’t make any sense to me. I think we said in closed session ‘don’t they realize that is not going to work?’ They ought to be smart enough to figure that out for themselves. It’s just obvious to anyone following Kiddie Beach, beaches in marinas don’t work. You just don’t put a beach in a harbor. There are too many things that go on that you have a hard time controlling. There are live-aboards and I’m not saying that live-aboards aren’t careful but that could be a source (of pollution). And then you have feral cats, wild cats and people feed them. You have rats. There are too many sources for contaminating the water. It’s a relatively small area. It’s not huge. Even Channel Islands Harbor is not huge. You get into circulation problems. And you especially get into circulation problems where this project will go.”
Supervisor Steve Bennett, whose district includes the land being developed for the Seabridge development, concurs with Flynn. “Kiddie Beach has demonstrated to us the problem of locating beaches with poor circulation,” Bennett told the Reporter. “Circulation will be even worse back there than at Kiddie Beach. They are just creating a long term problem there.”
Bennett has objected to the project’s beach plans and has tried to get Oxnard to reconsider this part of the development. The Supervisor pointed out that the adjacent Westport development is currently being built and it too will have newly created canals. “I have concerns about the (Seabridge) project. I’ve tried to encourage the Oxnard City Council to slow the project down. I think we ought to see what the impacts are of the (Westport) project that is already under construction that is going to expand the canal system. We need to see what the impacts of that will be on the water quality before we do any additional expansion. Now we as the Board, if I remember, we didn’t actually vote yes or no on the project. Our question was what do we do as a result of the fact that Oxnard is going forward. Do we sue them? Do we do this or do we do that? We have actually not had a presentation of this project where we said ‘we approve of this project.’ That would be a very inaccurate portrayal of where the County is at. In fact, I met with Oxnard city trying to get them to dramatically slow this down so we can find out what the impacts are on the water quality are. They have chose not to do that and instead decided to move forward.”
Despite the mounting concerns over Seabridge, the Oxnard City Council decided Tuesday night to endorse the project.
“The recourse is anybody could appeal their decision to the Coastal Commission,” said Supervisor Bennett. “Those are the kind of options that anybody has. The County of Ventura doesn’t get to approve or not approve. It’s a funny thing – it’s the County’s harbor and (the developers) want to get extra real estate value by expanding our harbor but we don’t get to decide whether they get to do that or not. It’s a very bizarre setup in my mind. The question I asked was ‘so people can just keep expanding our harbor?’ So we have the whole issue of maintenance of our harbor so the only thing we could do is enter into contracts to try to protect us in terms of maintenance costs. But in terms of if the project goes or doesn’t go we don’t even get to say that even though we have to maintain the expansion of the harbor and that kind of stuff.”
Quaintance is bothered by Bennett’s position and points out that he along with Supervisors Kathie Long and Judy Mikels voted to approve a Memorandum of Understanding (MOU) with the developers at a closed door meeting September 10, 2002 negotiated by the Channel Islands Harbor Director Lyn Krieger. “I’m looking for an explanation from Steve Bennett of how he could approve this MOU. This project has many environmental short-fallings and its in his district. In approving the MOU was tantamount of taking the County out of the loop in terms of any remedy to those problems.”
The MOU provides a $134,150 grab bag of goodies for the County including a Boston Whaler 19 foot harbor patrol boat with a 150 XL OptiMax Mercury engine, two boat trailers, three Ford Ranger XL light pick-up trucks with tow packages. Also thrown in is office furniture, fixtures and equipment including emergency medical supplies and computers as well as a range of dock equipment. The developer has also pledged to the Harbor Department $400,000 “to mitigate environmental impacts” and, after up to a four year delay, an additional $100,000 per year. By signing the MOU, the document states that “the parties shall thereby be deemed to have settled all issues between them that are raised Seabridge project and the (Final Supplemental Environmental Impact Report).”
“Note that the lion’s share of this money will not fall on the developer but on the future homeowners in the Seabridge project,” Quaintance said. “It’s no skin off the developer’s nose – he will be cashed out and long gone when the ongoing and increasing burden is realized by the homeowners.”
“”What really really bothers me, in addition, is this whole thing of this Krieger package of goodies,” Quaintance continued. “What we’ve got here is economics shaping policies that ought to be based on environmental and health considerations. She got a package of goodies for the County – everything from Band-Aids to boats. That was part of the process by which the County let go of all these other responsibilities to public health and to the environment. Why did the County enter into the MOU? It seems to me that they entered it to get all these goodies. No way do the goodies outweigh other issues. You just can’t place procuring supplies for a department above fundamental considerations of whether this project going to endanger public health because of these children’s beaches. No amount of Ford Rangers makes up for the potential of sick children. When we protect children, we protect everyone. If we are not going to face that need here, where are we going to face it? At the same time that this project with two additional children’s beaches is being slipped through, the County is soaking up $1.5 million from the State to clean up the one we have already. It’s just incomprehensible. It’s mind-boggling.”
Despite these concerns, the developers maintain that the project’s beaches will be pristine despite concerns to the contrary. “At the end of the day, we believe the water quality is going to be better because you’re not going to have the agricultural runoff and what comes from that,” the developer’s spokesman, Bill Wynne, told the Reporter. “There’s a couple of dead end channels right now where the water doesn’t have a way to circulate and they don’t have water quality problems and our will have a way to circulate in and out.”
“We will build the project and then the water will be allowed in to flood those channels,” Wynne continued. “We are then funding a water quality monitoring program. In the event that that water monitoring program indicates that there is a problem, the computer models were in error or whatever, then it provided a mechanism that there won’t be any swimming or anything going on in there. We’re forming a water patrol and water quality program. There would be a sign. In addition there would be an officer assigned to that area to basically enforce the ban on body contact. Because it’s in a residential community like it would be, it would be much easier (to enforce) because we’ve got a homeowners association, a code enforcement person that we’re funding that would be a full time person. We’ve got staff around that can enforce a moratorium on bodily contact there needs to be. On top of that, we’ve got a state-of-the-art system that going to collect all the stuff that might get in there. It’s hard for me to understand (how) we would have a problem but if we do, that would be the procedure that would be in place. That certainly will be sufficient.”
Oxnard’s separate Development Agreement provides for a one time payoff off $250,000 to the City from the developer for any remediation obligations regarding water quality at the new beaches. By way of comparison – some $900,000 is budgeted out of the $1.5 million State lean up grant for the existing Kiddie Beach for possible circulation devices. “Here, at an area far larger and with far less circulation, a one time payment of $250,000 will do the trick?” asked Quaintance. “I think not. By the way, that $250,000 is not earmarked by the City – it just goes into the general fund. Try finding it if and when the pollution problem is recognized.”
Equally troubling to Quaintance as the potential polluted beaches that Seabridge would construct is the secretive way the development process took place. He claimed that the September 10 meeting closed-door meeting violated the Brown Act which is designed to make sure public policy is open to the public. The intent section of the Act states “The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants their right to decide what is good for the people to know and what is not good for the people to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”
Quaintance maintained that the meeting was not properly noticed and word of the decision to enter into the MOU was first made available to the public as an attachment to a November 21, 2002 Oxnard Planning Commission Staff Report – nearly six weeks after the fact. The closed-door session was listed as “Item No. 7(C) Conference with real property negotiators” with the property in question being described as “Channel Islands Marine Lease, Parcels D and E, 3850 South Harbor Boulevard, Oxnard, CA.”
“All that the 7-C notice imparted was that Ms. Krieger was in the room as the negotiator,” said Quaintance. “The subject matter, as described on the agenda, had nothing to do with Seabridge and you cannot bring up additional subject matters on the agenda. This is plainly a violation of the Brown Act.”
The summary of this closed session states that “no action taken on Items 7(B), 7(C) and 7(D).” Frank Sieh, Ventura County’s County Counsel, advised Quaintance that it was reported in this matter because finalizing the MOU was contingent on the Oxnard City Counsel and the developer approving it. “A decision had to be made on that date about whether to commence California Environmental Quality Act (CEQA) litigation (by the County against the developer),” Sieh told the Reporter. “We would have had to have authorization that CEQA litigation, in that closed session, on that day. The Brown Act requires a report to be made when final is to be taken. It is not required to make that report if authorization was taken. No final action was taken because the agreement, or proposed agreement, was conditional upon the City at a later time.”
“The way the Brown Act is constructed, ordinarily the notices of closed sessions do give the public some indication of what particular subject matter is being discussed in closed session,” Sieh continued. “The exception to that, and perhaps the legislature might want to address this at some point in time, is the decision to initiate litigation. The reason that the subject matter is not disclosed in connection with the ‘safe harbor language’ in the Brown Act, meaning if you do something in the prescribed manner it is declared to be lawful. So with respect to closed sessions, the Brown Act itself sets forth certain language for each of the closed sessions authorizations. For example, if the issue deals with instructions deals with real property negotiations, if you follow the language set forth in the statutes, identifies the negotiator and the parties, then that will be deemed, as a matter of law, to be adequate notice under the Brown Act.”
Quaintance could hardly disagree more. “What happened here is that the County didn’t agendize (the MOU) at all. They just went ahead and acted on it. I don’t think there is any question, really. You don’t need any new legislation for that. I guess I wouldn’t expect Mr. Sieh to say to you ‘oh jeez, we screwed up,’ but the idea that some kind of additional legislation is needed is not the case. Existing law says that you have to agendize the items you are going to have to discuss in closed session. And they didn’t do so. It’s not on agenda and yet it was acted on this is flagrant fashion.”
“Assuming that Agenda Item 7(c) for the Board’s September 10, 2002 agenda is the sole basis for the closed session consideration of the MOU, I see no conceivable argument that the County provided proper notice,” John T. Buse, staff attorney for the Ventura-based Environmental Defense Center, told the Reporter. “The Brown Act requires sufficient notice to inform interested members of the public about the subject matter under consideration so that they can determine whether to monitor or comment on the matter. The notice here falls well short of this standard. It does not refer to the Seabridge project at all, much less to the negotiation of a potential settlement of the dispute between the County and Oxnard. Accordingly, I believe that the County violated the letter, as well as the spirit, of the Brown Act.
Making his way back to his Camry on Victoria Avenue, Quaintance pauses to kick the mud off of his Timberland topsiders, a stiff wind gusting through his light brown hair. “This kind of secret backroom dealing with developers could become the ruin of Ventura County,” he said, blue eyes burning brightly. “We’re going to end up like Los Angeles or Orange County if we continue to allow this kind of thing.”