A Santa Clara County Civil Grand Jury report that investigated the failure of the Catholic Diocese to annex property to build a new high school in Morgan Hill is harshly critical of the local commission tasked with processing such approvals.
But some environmental groups who have followed the high school’s annexation effort closely in recent years think the report was home-cooked with a bias in favor of the City of Morgan Hill, because the 2016-17 grand jury foreperson is a city planning commissioner. These critics also claim there are some “factual inaccuracies” in the report.
The grand jury report titled “LAFCO Denials: A high school caught in the middle,” published June 5, took an in-depth look at the city’s effort in 2016 to annex about 230 acres of agricultural land from the 1,200-acre Southeast Quadrant into Morgan Hill’s Urban Service Area. As required by state law, the Morgan Hill City Council submitted an application requesting this annexation to the Santa Clara County Local Agency Formation Commission (LAFCO).
The seven-member LAFCO commission rejected the annexation proposal on a 5-2 vote March 11, 2016. A second motion for an alternative proposal—to annex only the 38 acres within the SEQ (at the intersection of Tennant and Murphy avenues) designated by the Diocese for a private high school—failed at the same LAFCO meeting.
The grand jury report took LAFCO to task for inconsistently and subjectively enforcing its guidelines and applying undefined terminology to their annexation criteria. It also criticized the City of Morgan Hill for not including enough public participation in the SEQ process and ineffective communication with LAFCO staff.
Both agencies are responsible for the “strained relationship” between them, the grand jury report suggests.
‘Inherent bias’?
A group of private, nonprofit environmental organizations that argued against the city’s SEQ annexation proposal sent a letter to the LAFCO board July 17 spelling out their “grave concerns” with the June 5 grand jury report. Topping their list is the “appearance of (grand jury) foreperson’s conflict of interest.”
The foreman, Wayne Tanda, has been a Morgan Hill planning commissioner for several years, and was chair of the city commission in 2016. He made a motion to recommend submitting the city’s SEQ plans to LAFCO at the June 23, 2015 planning commission meeting, according to the July 17 letter signed by representatives of the Committee For Green Foothills, Greenbelt Alliance, American Farmland Trust, Thrive! Morgan Hill, Sierra Club and others.
“Given Mr. Tanda’s status as a long-standing appointed member of the…Morgan Hill Planning Commission, his direct input in the SEQ and Agricultural Mitigation Program proposals, and his involvement in the SEQ decision-making process throughout the years, it is difficult not to perceive an inherent bias in the content and conclusions of this report,” the letter states.
The July 17 letter also lists “misleading statements” and “exclusion of pertinent information and factual errors” as other problems with the grand jury report.
For example, a vague mention of “a county official’s” support for the Catholic high school might suggest to a less informed reader that the county as an entity was supportive of the annexation plans, the letter argues. In fact, however, county staff urged the LAFCO board to reject the city’s SEQ proposal because it is inconsistent with existing land use guidelines, and it doesn’t do enough to preserve farmland.
Tanda said he couldn’t say much in response to these allegations because the grand jurors are sworn to secrecy about the body’s closed-door process. But he argued that the grand jury has built-in checks and balances that prevent excessive influence by a single juror.
“So what?” he said of the observation that he is a city planning commissioner who supported the plans to develop the new high school in the SEQ. “Everybody (on the grand jury) is a volunteer. The system is set up so that nobody—not even any officer—has any more authority than anybody else. It’s designed so that everything is collaborative, everything is double-checked.”
He added that the agencies investigated in the report—including LAFCO and Morgan Hill—got a chance to see it before it was published, in order to point out any potential inaccuracies.
The June 5 grand jury report lists 10 “findings” and associated recommendations on how to correct or address them.
Countywide representation
The current chair of LAFCO said one of the report’s factual errors lies in the grand jury’s argument that Morgan Hill—as one of only three cities in Santa Clara County subject to ag mitigation policies in the works—lacks adequate representation on the LAFCO board.
The state law regulating LAFCO is exhaustively specific on the required composition of the commission’s board: two county supervisors, one council member from the City of San Jose, one council member from any of the other cities in the county appointed by a Cities Selection Committee, two board members from independent special districts and one public member appointed by the other members of the LAFCO board.
But the state law also says the public member cannot hail from the same city as the council member appointed by the Cities Selection Committee. For the last 20 years, Morgan Hill resident and attorney Susan Vicklund Wilson has sat in the public member’s seat on the LAFCO board, preventing Morgan Hill from adding a council member from the cities’ seat during that time. Besides, state law also says LAFCO board members are not supposed to hone in on any single specific interest.
“As a LAFCO commissioner, you represent the whole county,” LAFCO Chair Sequoia Hall said. “That’s the state law mandate. You put down your hat from whatever jurisdiction you come from. They were trying to say we need more South County voices (on the LAFCO board), but LAFCO commissioners represent everybody.”
Also on the LAFCO board are County Supervisor Mike Wasserman (who represents South County on the board of supervisors), Santa Clara Valley Water District Director John Varela (a Morgan Hill resident and South County rep on the water board), County Supervisor Ken Yeager, Los Gatos Councilman Rob Rennie and San Jose Councilman Sergio Jimenez. LAFCO board members serve four-year terms.
Hall noted that LAFCO staff is preparing a formal response to the grand jury report, which will likely be presented to the public at the board’s August meeting.
LAFCO was created by the state to prevent urban sprawl and preserve agricultural lands in growing communities.
Council to respond
Morgan Hill Mayor Steve Tate said the City Council is working on its response to the grand jury report. He said they will likely present it for public discussion at the July 26 council meeting.
Tate said he agrees that “in hindsight,” the council should have included the 2016 SEQ proposal in its General Plan update process, which was going on at the same time. The grand jury report noted this as one of its findings.
The report also noted the city’s ag mitigation policy doesn’t seem to have an ongoing funding source.
“I think we just need to keep working on figuring out a good relationship with LAFCO, and figure out how we’re going to to fund the ag mitigation,” Tate said.
