The opposition that rose abruptly from councilwomen Suzanne Tucker and Evelyn Tolbert to lawyer Steve Nicolaou seemed to take other council members by surprise.
Planning commission appointments usually are uncontroversial. A council subcommittee of councilmen Steve Abercrombie and Mike Maciel interviewed 11 applicants for two seats. They recommended that incumbent commissioner Charles Mann be reappointed and that Nicolaou take the place of Marc Shishido, who resigned amid a conflict-of-interest dispute earlier this year.
But as soon as Abercrombie made a motion to appoint Nicolaou, Tucker suggested that the council talk about him first. Tucker said she had read in the Tracy Press that Nicolaou was a real estate attorney.
“I have a real problem with that,” she said.
Tucker, and later Tolbert, said they worried about conflicts of interest dealing with former clients of Nicolaou’s, if he were to sit on the commission.
Nicolaou, on behalf of a client, wrote a letter opposing the Ellis subdivision, a 2,250-home development slated for the northwest corner of Linne and Corral Hollow roads. The council approved The Surland Co.’s subdivision in 2008, and Surland owner Les Serpa will give the city $10 million for a water park at the site that’s now in the planning stages.
“The potential for conflict is there,” Tucker said. “A big red flag goes up here.”
Tolbert said her “ears perked up” when she heard he’d taken a public stance on the Ellis subdivision, because land use is a huge issue for the commission, and it’s a powerful post because of it.
Tolbert said she wants no commissioner who would have to “constantly” recuse himself from votes. As a lawyer herself who once dealt with land use as an employee of San Jose, Tolbert was leery of potential conflicts.
Neither does she, in the aftermath of Shishido’s resignation, want to worry about whether a commissioner seeks the seat for ulterior, unethical motives. Shishido quit after he was accused of abusing his power on the commission by offering to work for a fee on behalf of a nonprofit to set up a marijuana dispensary in Tracy.
“This one’s not ringing right, guys,” Tolbert said.
Abercrombie and Maciel learned of Nicolaou’s letter from someone in the planning department, and they interviewed him a second time afterward, just to make sure he could do the job fairly.
The councilmen said Nicolaou explained he’d step aside as a commissioner if he encountered a project from a past client, and the two councilmen were satisfied with his answers.
“He was the best of the 10 vying for the position,” Abercrombie said.
Mayor Brent Ives said the council should not send the message that it will bar lawyers or people in real estate from the commission, or people opposed to projects the council has voted in favor of.
Maciel said the objections failed to change his opinion of the man, but he thought it would be “a disservice to all concerned” if Nicolaou slipped into the post on a split vote.
Consequently, the council voted — with almost no discussion — to appoint Alfred Johnson to the commission instead of Nicolau. Maciel and Abercrombie had chosen him as the alternate commission candidate.
Johnson, in his application, said he is a surveyor who worked on the 500-home Delta Coves subdivision on Bethel Island; the
13-year Gale Ranch subdivision in San Ramon; and the 850-home Ruby Hill development surrounding a golf course in Pleasanton; as well as on water lines and rebuilding East Street in Tracy.
It’s unclear whether any of the council members absent from the interviews were aware of those facts.
“The most important thing is for the council to be comfortable with the appointment,” Maciel said.
13.1 CEQA requires an EIR to analyze potential environmental impacts to the degree of
specificity that corresponds to the degree of specificity known about a proposed project.
As the proposed Project does not identify a specific location for the potential RGAs
beyond those allocated to the ESP, it would not be appropriate to investigate specific
locations for the allocation of the RGAs in the body of the environmental analysis.
However, Chapter 3A.14, Program Alternatives, includes the analysis of one additional
development scenario that considers how impacts might be different if the RGAs are
distributed in a manner other than the growth envisioned by the General Plan.
At this point in the process, arguably, no environmental review of the Project
Proponent’s potential future eligibility for RGAs is necessary because the RGAs have not
been issued and no specific development is proposed in connection with the additional
RGAs. The Development Agreement could be argued to be subject to the general rule
that it can be seen with certainty that this Agreement cannot and will not lead to any
adverse impact on the environment. (See, CEQA Guidelines Section 15031(b)(3).) CEQA
applies to a governmental action only if it is an essential step in the physical
environment.
Nonetheless, in the interest of full disclosure, the City decided to address under CEQA
as early as possible the potential future projects that could become a subject to the
Development Agreement, and hence could become eligible for all or a portion of the
remaining RGAs (after the Ellis Project) allowed by the Agreement, even though
currently no specific development proposals have been proposed. As a result of this City
decision, the EIR was drafted to provide the environmental review and analysis of the
potential development of the potential non‐Ellis RGAs at the “program‐level”. A
program EIR is appropriate under these circumstances because the Development
Agreement sets forth a program by which the future properties and projects will be
subject to future development approvals and future public and environmental review.
Program EIRs under CEQA are intended for such paradigms that, like the Development
Agreement, set forth “rules, regulations, plans, or other general criteria to govern the
conduct of a continuing program.” (See, CEQA Guidelines Section 15168(a)(3).)
As to the level of specificity required for the environmental review of the non‐Ellis
RGAs, the potential environmental impacts of those RGAs would be no different than
those previously analyzed in the General Plan EIR because the eventual allocation of the
non‐ Ellis RGAs would be within the framework and parameters of the General Plan. Therefore, the General Plan EIR was used as the basis for the programmatic analysis in
the Draft EIR.
13.2 This comment does not pertain to the adequacy of the environmental analysis, but to
City policy and will be considered by the City’s decision makers. The Development
Agreement provides that the Applicant merely shall be eligible to apply for and
potentially receive RGAs. Only after an application for development is first properly and
publicly processed and reviewed in compliance with all controlling planning and
environmental (CEQA) laws, the CEQA compliance work is certified and adopted by
City, and then the development proposal and its required permits and entitlements are
adopted and approved by the City (which City adoption and approval shall remain with
in the full and exclusive discretion of the City and which adoption and approval is not
mandated by the Development Agreement), shall the Project Applicant be eligible to
then apply for RGAs under the Development Agreement. In other words, only upon the
successful conclusion of this fully discretionary planning/ environmental process would
the Applicant then be eligible to apply for a set number of RGAs, and those RGas would
only be used on such approved projects. Moreover, City’s issuance of RGAs to the
applicant must comply with the Growth Management Ordinance (“GMO”) maximums
and all other requirements of the City’s GMO and GMO Guidelines.
13.3 The Project Description is not vague, and the environmental review of the RGAs not
located in Ellis is not superficial. To the contrary, the Project Description accurately
describes the Development Agreement and the Development Agreement Program, and
the analysis of those potential future RGAs is prepared at a programmatic level. The
Draft EIR Project Description includes all detail that is currently available for the
proposed Project. Under the Development Agreement, the Applicant is not eligible to
apply for RGAs beyond the Ellis Specific Plan Project unless and until a particular
project and property within the General Plan’s planning area is known, and that project
undergoes full development‐level environmental and planning processing, review and
discretionary approval (which process, review and approval remain in the sole
discretion of the City). Please refer to Response 13.2, above. Further, the schedule of the
annual RGAs that the Project Applicant can then be eligible for cannot be exceeded.
What exact property and project within the General Plan’s planning area might, in the
future, secure all of those necessary prerequisites to RGA eligibility, is not currently known. But the Program by which such full future environmental review and
discretionary approval will take place is currently known, and that is what the Draft EIR describes. Further, project approvals that do not specify exact locations for the proposed
development and their project descriptions in an EIR are lawful under CEQA.
The Draft EIR analyzes potential impacts that might occur with development of the
RGAs that would be allocated to the Surland Companies and relies upon the rejections’
and conclusions of the General Plan EIR because it provides a comprehensive,
programmatic analysis of the potential environmental impacts that are expected with
the buildout of the City’s General Plan. The analysis in the General Plan EIR addresses
the 1994‐approved Sphere of Influence. As this was the SOI in effect when the Project
Notice of Preparation was distributed, this SOI is also the correct and legally appropriate
baseline for evaluating impacts in this EIR. Further, please note that, although the City
approved a smaller SOI than analyzed in the General Plan EIR, LAFCo has not yet
approved that SOI and is not expected to consider approving it until early 2009. Finally,
the environmental analysis within the General Plan EIR is a programmatic, City‐wide
analysis and, accordingly, not greatly affected by site‐specific considerations.
13.4 This comment does not pertain to the adequacy of the environmental analysis, but to
City policy and will be considered by the City’s decision makers. The Commentor is
correct in that the implementation of the ESP would result in the conversion of
agricultural lands to urban uses, as is discussed in Chapter 3B.7, page 3B.7‐9,
Agricultural Resources. The Commentor is incorrect in stating the ESP would result in
additional units beyond those planned for by the City. The ESP is represented in the
City’s General Plan as Urban Reserve 10 and the ESP would be developed in accordance
with the residential growth projections identified by the General Plan for that site.
13.5 The commentor has correctly cited CEQA Guidelines Section 15381. However, the lead
agency makes a determination of adequacy. In addition, please refer to Response 13.1.
13.6 Please refer to Response 13.2. As discussed in Chapter 2, Project Description, “the DAP
would not adjust the yearly allotment of RGAs allowable under the City’s Growth
Management Ordinance, nor would it provide any project approvals. It does not
supercede any City or State laws or regulations; rather, RGA eligibility would be
contingent upon legally‐compliant project processing under controlling City and State
laws and regulations, including CEQA. The DAP would not adjust the yearly allotment
of RGAs allowable under the City’s Growth Management Ordinance, nor would it
provide any project approvals. It does not supercede any City or State laws or
regulations; rather, RGA eligibility would be contingent upon legally‐compliant project
processing under controlling City and State laws and regulations, including CEQA.”
Therefore, as nothing in the scope of this Project approval would alter City policy or
application procedures, it is not anticipated that it would be at odds with LAFCO
annexation policies.
13.7 The City is confident that the Draft EIR Project Description contains an accurate and
appropriately detailed summary of the Development Agreement sufficient for the
consideration of the environmental analysis presented in the Draft EIR. In addition, the
City held a public Planning Commission hearing to discuss the Development Agreement
on June 11, 2008, which allowed for public input on the Draft Development Agreement
prior to the close of the public review period for the Draft EIR. In addition, the Draft
Development Agreement was presented to both the Planning Commission and City Council at a public workshop held on July 29, 2008.
Did you BBQ those burrowing owls around the campfire or did the trains run'em over?
Burrowing owls are a federal endangered species.
The Sierra Club picnic is at the Ellis site this year! Keep on baling Butch
My question was in regard to the content of the letter. This is all the information we both have. Without the letter it's all speculative as to their position and potential for success.
When you write a position paper against the only deal given to the city you ought to be expected to explain yourself.
If you have more information let's hear it.
So the squirrels and birds are in them fields now.
Houses took away most of those good fields.
vagueness and speculation is all you ever present on this blog....
Example - speculation in regards to what candidate?
When elections roll around is when the real people of Tracy will show there displeasure - Voters will have their day!
Reading the letter I saw no explanation for these beliefs. Anyone could stand on a soap box and proclaim the virtues of their long lost candidate. That doesn't mean it's not a bird brained idea.
Probably had more than adequate time to explain those beliefs. But it's too late for that now. We may never know. Let's just move on. There are more important things in life than vaugeness and speculation.
I happened to read the letter you are referring to in your below comment. If the letter suggests that the city develop somewhere else it is a recommendation that the city voters pick up the tab.
Even the acerage for the swim center is irrelavent to the discussion unless you are opposed to the swim center.
The bottom line is that somebody has to pay for any property that is to developed. If you look at the list of properties that were recommended.
They are NOT owned by the city and I don't think it was fair of an attorney to suggest that the voters pay for his ideas.
To me that idea sounds like an unrealistic fairytale. Someone's pipe dream. This has nothing to do with someone else's glasses.
It has everything to do with who's going to pay for it. Under the plan you support in the letter, the Tracy voters would get stuck with the bill.
I can see now that the city made the right choice at the meeting. These ladies may have saved us a headache.
The problem is the City gave the keys of future land use issues to Serpa...a private sector developer. Read Steve's letter, it is explaned quite well there. If youo don't see it, you are wearing Serpa's rose colored glasses.
My suggestion:
Go to the people and explain your position or go away.
Please. We really don't need any more lawsuits.
I read steve's letter and I didn't get the same impression as yourself. There was a suggestion to develop properties that were not paid for. The city would have to pick up the tab for these properties in order to develop them.
I don't think the letter has merits to anything other than abstract understanding of something that pertains to nothing that makes any sense.
Of course I could be wrong. Can you show which points that were made, which you feel were lucid?
Id didn't sound like a quality or brilliant plan to me.
I think Steve A ultimately made the right choice.
Quality needed for planning commision - Shady, will compromise, owes someone, has no moral values, can keep mouth shut, high school education or less.
But to the point...Serpa's ownership of Tucker and Tolbert is disgusting. Thank goodness Tucker is not running again, and hopefully Tolbert will be true to her word and retire, but watch out for James Atkins...Tolbert's son-in-law who is on the Parks and Rec Commission and also in Serpa's pocket. Don't be surprised if he throws his hat in the ring for Council when Tolbert announces she is not running again.
ccostanza...those of us that know you and your family will be heartbroken if you leave town, but do understand your frustration.
Look at Steve's letter...he brings up very valid points and had every right to make them. He talks about everything that is wrong with the Serpa deal, everything the Council ignored.
Serpa Groupies beware....his reign will not last forever...he does not know when to stop pushing, and will eventually wear out his welcome.
Now I see they've added the letter "T" to the list of dreaded people we are told to fear by the HATE mongers.
Ellis homes won't be available on the market until after 2014. And Lathrop and MH have fewer homes than Tracy and their home values plummeted lower than Tracy. And the rest of California. Something the TRAK people never quite explaned is the concept of jobs and commuters.
One issue harped over and over. Aside from the shrill Home Phonia noises could they explain anything?
Even the Carnegie Park has folks scratching their heads. I don't think they communicated that well either.