Response to Linda Kelly / Windsor

 

After years of keeping residents in the dark about their negotiations with the Lytton, yesterday, after learning that residents planned to speak against the project at today’s Town Council meeting, the Town Manager issued a write-up supposedly in response to information that is being circulated by opponents.  However, the Town Manager’s letter is full of omissions and misleading statements.

After you read the Town Manager’s explanation of past events and our responses, we hope you will understand that far from this project being inevitable, there is no current authorization for the federal government to take the Lytton land into trust.  The Huffman legislation would not protect the Town but would do just the opposite, provide the government with the authorization to take the Lytton land into trust which does not currently exist.  Further, the Huffman legislation would fail to protect Windsor.  It fails to ensure that State and County land use controls will continue to apply to this land, and fails to ensure that the Lytton will be governed by the same law that would govern anyone else who were to buy this land.  Rather, the bill would allow the Lytton to develop the land as they want, destroy the rural character of the area, and destroy the unique ecosystem.  As will be explained below, to date, the Town has worked with the Lyttons, kept the voters in the dark and tried to force them to approve providing water and sewer services to the Lytton lands.

The Town Manager’s write up is in black below.  Our comments are in red.

Mark,

Regarding the fee-to-trust process being undertaken by the Lytton Tribe, and the Town of Windsor’s involvement, I understand that a lot of information is being circulated in the community and that community members have questions regarding the Tribe’s development plans.

Regarding the proposed Windsor residential development, a trust application to take land into federal trust for the development was filed with the Bureau of Indian Affairs (BIA) back in 2009.  The Town, along with the County and others, submitted detailed written comments in 2009, and regarding the Final Environmental Assessment, in 2011.  The Tribe’s trust application has been pending since that time, but at any moment could have been activated by the BIA.  Although there are certain legal constraints, trust applications before the BIA can be and have been litigated on environmental and other grounds once formally approved.  It is important to note that the Tribe has a right to file such application and that the Town does not have veto power over any tribe’s application to the BIA.

What is meant by the statement “the trust application … at any moment could have been activated by the BIA”?  If the Town Manager is trying to imply that the application could have been approved at any moment, that is incorrect.  As Governor Schwarzeneggar’s legal affairs secretary wrote to the BIA on October 8, 2009, “the Secretary of the Interior lacks the authority to take any land in trust for Lytton under the provisions of 25 USC §465.”  The BIA can take land into trust only for tribes in existence in 1934, and the Lytton did not form until 1937 at the earliest.  Neither the BIA nor the Lytton have ever denied those facts, and the BIA’s long inaction on the application presumably results from that limitation.

Once the implications of the Carcieri decision became clear, there was no chance this land would be taken into trust for the Lytton, and the environmental objections of the Town became superfluous and legally irrelevant.

The Town Council has met in closed session from time to time, as permitted by California’s Brown Act or open meeting law, to consider and receive legal advice related to the possible initiation of litigation in light of the Tribe’s trust application and its plans.  The Town Council has been concerned all along that the Tribe’s development plans and their impact to the Town are mitigated to the greatest extent possible, and thus the Town Council has sought all remedies and options for ensuring this, for the protection of the community and in the best interests of the community.  One remedy could be initiation of litigation, and the Council has a right to receive legal advice on this in closed session.

The Town Council’s closed session meetings to discuss the Lytton project were neither permitted under the Brown Act nor well-advised.  The basic requirement of the Brown Act is that the Town Council meet and conduct the people’s business in public and not in a back room in secret.  It is true that as an exception to the basic rule, the Brown Act allows a council to discuss whether to initiate litigation.  However, as discussed above, once the Carcieri decision was issued, the BIA no longer had the authority to approve the Lytton’s application, and the possibility of litigation on the Town’s objections to the Environmental Assessment went away.  Those objections became superfluous.  Certainly, the Town’s legal counsel would have known this, and known that the Brown Act no longer allowed meetings in closed session on this.  However, the Town continued meeting, using the irrelevant environmental objections as a pretense to discuss a different subject, the legislation that might be introduced by Congressman Huffman and a deal with the Lytton.  These closed session meetings and the use of a pretense to justify them were an egregious abuse of the law.

Further and aside from the Brown Act, the failure of the Town Council to bring this before the public reveals a disturbing disrespect of the voters and abuse of the trust placed in these elected officials.  One would have hoped that the council would have risen to the occasion and required a public hearing on the proposal, both to keep the voters informed and to gain public reaction.  The failure to do so, makes it look like the council was not acting in the public good.  That remains the impression today.

The Town understands that the Lytton Tribe is considering a possible initiative ballot measure to determine whether the Windsor voters approve amending the Town’s current Urban Growth Boundary to permit Windsor’s delivery of water and sewer service to that portion of the proposed residential development that is outside Town limits or the current Urban Growth Boundary.  If the voters approved such a measure, an agreement could set forth the Tribe’s obligations with respect to those services.  The environmental assessment that was performed in connection with the trust application evaluated that possibility and found connection to Town services environmentally superior to the Tribe’s possible construction of its own water and wastewater treatment facilities on tribal property. If and when the Tribe decides to pursue an initiative, the matter will be agendized for an open Council meeting at which time public comment will be received.  Until then, there is no action item pending before the Council.  The water and sewer connection studies are public, were provided to the newspapers two years ago, and are available if anyone wishes a copy.

The Lytton want to obtain water and sewer services from the Town in order to facilitate development of their 500 acres in a number of ways that are all inconsistent with current land use limits in the County and in the Town.  The Lytton want to construct a 147 unit residential development on 124 acres that is currently zoned for at most 24 units.  The Lytton also want to develop 214 residential units on 71 acres that have not been annexed to the Town or rezoned.  The Lyttons also want to develop a 200,000 case winery and a luxury resort on the remaining 316 acres.    The Lyttons want to cut down 1500 oak trees, and destroy important wildlife habitat.  And all of these developments require heavy water use.  These developments would destroy the rural and agricultural character of the area and bring in suburban sprawl.

The Environmental Assessment that was performed by the Lytton was not done under strict California law (known as CEQA), which is renowned for protecting the environment, but under lax federal law.   California law starts from the premise that a project must comply with the existing General Plan and existing zoning laws.  Federal law ignores state and local law and does not require compliance with those.  Further state law requires that significant effects must be mitigated.  Federal law does not.  Thus, California law is stricter in judging whether development causes significant effects on the environment and imposes stricter mitigation measures.

Further, the Environmental Assessment only studied the 147 unit housing project, not the additional 214 unit project and not the winery and resort. But Huffman’s bill allows all 500 acres to be taken into federal trust.

The federal finding that connection to the Town’s water and sewer lines was “environmental superior” did not consider the possibility of the Lytton not getting the land taken into trust.  The Town’s reliance on the federal Environmental Assessment should be troubling to all voters.

The Town Council should preserve the voters’ voice in this process.  The voters should be allowed to vote on whether Congress should grant new authorization to the federal government to take this land into trust before Congress acts.  If the voters turn down the proposal, the Town Council should accept the voters’ decision and work against any such legislation.  Instead, the Town Council is working behind the scenes to pass the Huffman legislation before the Town holds a vote.  At that point, the project would be a foregone conclusion and the vote would decide only whether residents get the new development with or without the 400 foot wide cesspool.  This is an attempt to limit the voter’s choice and to force their hand.

Regarding the County’s agreement with the Tribe, the agreement primarily addresses a proposed winery and/or resort within County jurisdiction, and includes an agreement not to engage in any gaming or gaming activities during the 22-year term of the Agreement.  It also sets forth the process for environmental review of the winery/resort and any additional residential development and includes mitigation costs payable to the County.  A copy of the agreement may be obtained from the County of Sonoma. Note that the County did not need consent of the Town to enter into such an agreement.

The claim that the County’s agreement with the Tribe primarily addresses a proposed winery and/or resort is not true.  That is just one of many provisions.  While the County agreement sets forth a process for environmental review of the winery/resort, it again settles for weak review under federal law rather than requiring strong review under California law which the County could have required.  Windsor should not be satisfied with that approach.  Note that during the County’s hearing, the Supervisors relied heavily on the Town Council’s expected agreement to provide water and sewer services to the Tribe.

As for the restriction on gaming, as stated, it is just for 22 years.  After that, the Lytton would be free to turn the resort into a casino/resort.  (Congressman Huffman’s bill contains a “no gaming” clause that has no expiration, but at least some legal experts have questioned whether that is legally enforceable.)

For the Special Federal Legislation, the first time the Town learned of its introduction by Congressman Huffman was during a public, unrelated meeting of the Council on May 20, 2015, when Supervisor Gore stated that it had just been introduced. We obtained a copy of the bill once it was available and some general information on process from the Town’s special tribal counsel. The Town has not taken a position on the bill and had no role in drafting language for the bill or any hand in the Congressman’s decision. I’ve viewed a tape of the first Subcommittee hearing and have noted that Congressional Subcommittee members appeared to be very supportive of fee to trust applications and disregarded any opposition to a fee-to-trust bill.  Note that the Special Legislation specifically excludes a casino. The Subcommittee hearing may be accessed at this link: http://naturalresources.house.gov/calendar/eventsingle.aspx?EventID=398741 View the archived hearing webcast. Also, I have attached HR 2538.

The statements are very misleading.  While the Town might not have learned that Congressman introduced his bill until May 20, clearly they knew it was coming.  Back in March, when the County approved its agreement with the Lytton, the press made clear it was coming.  The Town Manager should say when she first learned of the possibility that such a bill would be introduced.  Given the Lytton’s political contributions to Congressman Denham (a co-sponsor of the bill from the Central Valley) in April 2014, it appears this was planned for a while.  The Town undoubtedly knew this and elected officials neither informed the voters nor provided them a forum to express their opinions.  The Town officials have worked with the Tribe to keep the voters in the dark, to provide the voters misleading information so the voters wouldn’t fight this, and to force the hand of the voters to approve water and sewer services to the Tribe.

In terms of what has been publicly stated regarding the Lytton Tribe proposal, please note the following:

  • Press Democrat article, 6/20/11, regarding Tribe’s plans, noted deadline for public comments on the environmental assessment that had been going on for more than two years.
  • Windsor Times article, 6/9-15/11, regarding Tribe’s plans to take land into trust.
  • Press Democrat article, 9/9/13, regarding Tribe seeking water and sewer connections from the Town
  • Press Democrat article, 12/2/13, regarding land purchases and development intentions of the Tribe
  • In 2012, the Tribe entered into an agreement with the Windsor Fire Protection District and in 2014, the Tribe entered into an agreement with the Windsor Unified School District. I believe these matters were agendized on each of the respective bodies’ public agendas. The School agreement was covered by the Press Democrat (7/19/14) here: http://www.pressdemocrat.com/home/2407422-181/tribe-donates-1-million-to
  • In 2014, the Town Council publicly adopted an amendment to the Code of the Windsor Water District to clarify the procedures for requests for water and sewer connections outside of the District’s boundaries and the Town’s Urban Growth Boundary, and referred to the Lytton Tribe’s intentions in the public staff report, which may be accessed here: http://windsor-ca.granicus.com/MetaViewer.php?view_id=2&clip_id=479&meta_id=33704
  • At the January 14, 2015 meeting of the Town’s Parks and Recreation Commission, the following agenda item was heard publicly: Introduction of the Lytton Tribe Pool Proposal. The staff report and video of the meeting may be accessed here: http://windsor-ca.granicus.com/GeneratedAgendaViewer.php?view_id=2&clip_id=493 This was covered by the Press Democrat 1/15/15: http://www.pressdemocrat.com/home/3386463-181/tribe-introduces-plan-to-build
  • A Press Democrat article dated February 12, 2009 reports that “[former Town Manager Matt] Mullan said Windsor is not interested in extending utilities to the tribe’s properties, which lie outside the town’s voter-approved urban growth boundary.”
  • A Press Democrat article, dated August 22, 2009, quoted Windsor Councilwoman Debora Fudge as saying, “It’s eight times the density [legally allowed], in the wrong location, without urban services. I am even more in opposition to this development than I was before.”
  • A Press Democrat article, dated June 20, 2011, quotes then County Supervisor Mike McGuire as calling the proposed effluent pond “the type of lakefront property any individual would want to avoid at all costs. It’s unacceptable.”

Since these statements were made, the project has grown from 147 acres to 500 acres (and now there are hints it will grow to 1,300 acres).   The new project is even more incompatible with the County General Plan and with the rural/agricultural nature of the area.  

Please let me know if you need further information or have any questions.

Linda

_____________________

Linda Kelly
Town Manager
Town of Windsor

 

9291 Old Redwood Highway
P.O. Box 100
Windsor, CA  95492-0100
Phone 707.838.5313
Fax 707.838.7349

www.townofwindsor.com

 

 

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