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disposal of land for the flood control dam, etcFrom:Steve Pomerance To:OSBT-Web Cc:Rivera-Vandermyde, Nuria; Tate, Teresa; Adams, Taishya; Benjamin, Matthew; Brockett, Aaron; Folkerts, Lauren; Marquis, Tina; Schuchard, Ryan; Speer, Nicole; Wallach, Mark; Winer, Tara Subject:disposal of land for the flood control dam, etc Date:Monday, March 11, 2024 11:27:23 AM External Sender Notice This email was sent by an external sender. To the OSBT, I’ve been told that the City Attorney’s Office has taken the position that the disposal of OS land for the ill-considered flood control dam cannot be conditional. If that is what the CAO said, that is simply wrong. It is NOT what the Charter says. (I tried reading the agenda packet to see what the CAO actually said, but it was so long and so poorly formatted as to be more or less inaccessible.) Here is what the Charter says regarding disposals; it’s Sec. 177. I have broken the Charter section up in to paragraphs so it would be easier to read. I have also included Sec. 170, because it points out that OS land is actually City land. That clarifies what “otherwise conveying" land from OS to Utilities is — an internal action, not a sale to an external entity. Although, there could be money involved, since the citizens paid to buy OS land with their taxes, and not to buy land for Utilities. An interesting issue to consider…what is the responsibility of the OSBT in this? Sec. 177. - Disposal of open space land. No open space land owned by the city may be sold, leased, traded, or otherwise conveyed, nor may any exclusive license or permit on such open space land be given, until approval of such disposal by the city council. Such approval may be given only after approval of such disposal by the affirmative vote of at least three members of the open space board of trustees after a public hearing held with notice published at least ten days in advance in a newspaper of general circulation in the city, giving the location of the land in question and the intended disposal thereof. No open space land owned by the city shall be disposed of until sixty days following the date of city council approval of such disposal. If, within such sixty-day period, a petition meeting the requirements of Section 45 above and signed by registered electors of the city to be at least ten percent of the average of the number of registered electors of the city who voted in the previous two municipal candidate elections as of the day the petition is filed with the city clerk, requesting that such disposal be submitted to a vote of the electors, such disposal shall not become effective until the steps indicated in Sections 46 and 47 above have been followed. This section shall not apply to agricultural leases for crop or grazing purposes for a term of five years or less. This section is to be construed liberally in favor of providing opportunities for the citizens of the city to refer measures proposing the disposal of any open space land. (Added by Ord. No. 4996 (1986), § 1, adopted by electorate on November 4, 1986. Further amended by Ord. No. 8272 (2018), § 3, adopted by electorate on November 6, 2018.) Sec. 170. - Creation of a department of open space. There shall be a department of open space, which shall be responsible for all open space land and other property associated therewith. As used in this charter, "open space land" shall mean any interest in real property purchased or leased with the sales and use tax pledged to the open space fund pursuant to the vote of the electorate on November 7, 1967, or proceeds thereof, any interest in real property dedicated to the city for open space purposes, and any interest in real property that is ever placed under the direction, supervision, or control of the open space department, unless disposed of as expressly provided in section 177 below. (Added by Ord. No. 4996 (1986), § 1, adopted by electorate on November 4, 1986.) Here are some important points: 1) A “disposal” is not something that can be done with OS land. The word “disposal “ is not a stand-alone term in the Charter. It refers to a specific list of possible actions. What can happen is that the Council, with OSBT approval, can “sell, lease, trade, or otherwise convey” Open Space land. The Charter’s language shortcut is to use “disposal” to include those terms. See the first sentence in Sec. 177. 2) There is NOTHING that says that an “otherwise conveyance” of land cannot be e.g a shift of management responsibilities with conditions attached. So, for example, the Council and the OSBT could concur on shifting the management of the land to the Utilities Department under conditions. For example, this shift would only take place if the City gains approval of the flood control dam from the Feds and State, and that the land would immediately return to OSBT management (and Charter restrictions) if the flood project is not approved, and that Utilities will make maximum effort to preserve endangered species while the land is under its management, and that Utilities will return land to its original condition if available for temporary use, and that Utilities will financially compensate OS for irreversible done to endangered species habitat, etc., etc. 3) The Charter procedure (as in effect laid out in the second paragraph) is that the Council “approves” of the action, as in the first paragraph. But the OSBT must first “give approval” of such action, and then the Council can act. So, obviously there could be a negotiation, or whatever, between the two entities, so this all happens in a short time period. But, again, there is NOTHING that prevents the OSBT from demanding that the Council impose CONDITIONS on the "sale, lease, trade, or otherwise conveyance", in exchange for being willing to approve that Council action. As to the substance of the “sale, lease, trade, or otherwise conveyed”, the OSBT can certainly tell the Council what it is likely to ”approve” or what it is likely to “not approve”, so that the Council doesn’t waste its time. Regards, Steve Pomerance P.S. With regard to the overriding issue — is this dam worth doing? — I finally got to look that the map of the “design storm" that this dam is supposed to address. If the storm were centered a bit to the north, then the water will mostly bypass the dam and flood the same folks that the dam was supposed to protect. Just thought you’d like to know...