Posted on 14 January 2011.
Clark defends Town’s stance in airport litigation
In the aftermath of the Town’s stinging defeat in the State’s Third Court of Appeals, which upheld a $30 million judgment in favor of a developer (Mammoth Lakes Land Acquisition, aka the Hot Creek developers) against the Town, one local business owner wrote me an email entitled, “Hmm, time to pack our bags?”
My response: The anticipation of pain is always worse than the pain.
On Monday, I sat down with Town Manager Rob Clark to ask him where he thought it all went wrong – twice.
In large measure, Clark believes it’s because Hot Creek has an easier story to tell. The narrative is simpler: “We got screwed by the Town.” This narrative is buffeted by some rather unfortunate and inflammatory comments made at the time by Interim Town Manager Charlie Long, especially where he asked the Federal Aviation Administration to help the Town “get rid of Hot Creek.”
This, said Clark, suggested a collusion with the FAA which just did not exist.
“On the surface, there was stuff that was said which makes it look like [we acted in] bad faith … I know for a fact that’s not the case. I was there.”
Clark also scoffed at the notion that the Town could somehow have the power/pull to manipulate the FAA.
As for the Town’s own story, Clark described it as “more nuanced.”
Much of that story rests in the concept of Grant Assurances. Every time the FAA gives an airport money, it does so with the idea that the money comes with certain strings attached. In other words, grant recipients have to comply with federal requirements imposed on publicly funded airports.
That is the assurance.
And the FAA had given the Town money for various airport improvements long before Hot Creek came along. Meaning assurances were already in place.
Both sides should have been aware of the FAA’s role.
As Mammoth local Owen Maloy observed in an email this week, ““I cannot understand how the Town could have lost this case. Maybe the following was never brought up.
The FAA had already given grants to the Town long before 1997, as pointed out by Andy Richards in the FAA letters in 2004-5. The FAA grant assurances were already in place when Hot Creek came on the scene. If Terry Ballas knew so much about airports, he should have known about the FAA regulations, including those relating to the proper location of hangars outside the runway safety area.”
The reason the project got delayed, said Clark, was because the FAA raised certain objections to the Hot Creek Development Agreement which had to be resolved. Clark said these issues, related to the residential nature of the condominium development as well as the use of aeronautical land for non-aeronautical uses, had been resolved by 2006.
The residential issue was resolved, said Clark, by mandating that the condominium project would be for transient use only and would accommodate no permanent residents.
The land issue was resolved by the Town’s promise to reach agreement on a future land exchange with the Forest Service to replace the land it had ceded to Hot Creek for residential construction.
“We told them the coast was clear … and then they filed the lawsuit.”
Sheet: Would the Town have approved a development application with the following conditions?
Clark: I’m assuming we would’ve approved it.
Sheet: So why did they file suit?
Here, there is only conjecture, but one theory is that by 2006, the window of opportunity had disappeared. Remember, Tanavista, the Ritz Carlton Residences, The Sherwin … several projects were shelved because the development climate had already begun to shift and financing wasn’t available. Perhaps Hot Creek already knew its development prospects were dim.
It is Clark’s belief that both the Town and Hot Creek were bound by Grant Assurances to comply with FAA mandates before moving forward. That it was a mutual problem to be solved. Whereas the court ruled that if the grant assurances conflicted with elements of the development agreement, that it was strictly the Town’s problem.
The irony of it all, said Clark, is that Hot Creek’s Terry Ballas and C. Ray Johnson were initially on board with plans for airport expansion. “They knew it would benefit them,” said Clark.
Clark attributes a lot of the FAA’s later reticence (it, after all, approved the Airport Layout Plan in 1997 which included the condominium development) as a result of its embarrassment at losing the airport environmental lawsuit to the Sierra Club, et. al. in 2003.
After that, he said, “they [the FAA] wanted to take away the risk factors.” One of those risk factors was obviously a residential development on airport property.
The Town is appealing the case to the California Supreme Court. The cost, factoring in additional interest which will accrue from the judgment, will likely run more than $1 million. The Supreme Court generally hears just 5% of all petitions received. Clark said that because of a lack of case law in regard to Development Agreements, he believes we have a statewide issue which has more likelihood of being heard.
And from Kirkner’s desk …
Mono County Clerk/Recorder Lynda Roberts has a better idea of what the Special Election on Jan. 4 actually cost the County. “My rough estimate, which still might be a little low because all of the employees and contractors have yet to turn in their hours, is $54,231,” Roberts explained. “If we had done the election entirely vote by mail the cost would have been closer to $43,436.” The more than $10,000 in savings would come from the lack of poll workers, setup and cleanup that would accompany an all vote by mail election.
Roberts added that all elections are not the same and this most recent one was actually on the cheaper side of things because there was so little on the ballot. “When there is more on the ballot it costs more because it takes my office longer to proofread,” Roberts explained.
The Sheet’s online arm continues to grow and last month received more than 8,000 hits. This was an increase of 2,000 hits over the previous month. Kirkner updates the site Monday through Friday, and we continues to offer fresh stories every weekday and breaking news on the weekends.
More than a mouthful
On Wednesday the Planning Commission reviewed and approved the framework for the South District’s Neighborhood District Plan. This process rolls four areas into one plan. The Sierra Star District, the East Open Space Stream Corridor District, the South Old Mammoth Road District and the Bell Shaped Parcel will all be studied under the SDNDP. Previously the Mammoth Lakes Town Council had directed staff to complete certain prioritized NDPs in the 2010/11 fiscal year. The districts listed are the majority of the priorities from Council’s list. The remaining priority NDP, the Sierra Valley Sites District, is to be initiated as a separate process in early 2011. Watch for upcoming public workshops in order to get involved.