Law, order and the bench
With regard to your report of the forum held at the Mammoth Lakes Fire Station for the judicial candidates (The Sheet, April 3, page 2), I was surprised to see that old “death penalty” question has come up again. Mono County isn’t exactly drowning in death penalty cases. I can’t remember one in the 33 years I’ve practiced law here. If we were faced with one, I would point out that the condemned usually dies in prison of old age, but not until — as opposed to a straight life sentence without parole — they have cost the taxpayers hundreds of thousands of dollars to finance innumerable appeals. At any rate, the death penalty is legal under California law, and every judge is sworn to uphold the law.
The veracity of law enforcement is another matter. I happen to have great respect for the job our officers do in Mono County, but a judge cannot decide a case solely on an officer’s testimony just because the person is a police officer. That would be judicial misconduct. A judge must consider all of the testimony presented in a case. Besides, if a judge always decided in favor of law enforcement regardless of the facts presented, there would be no point in us trying to contest those traffic tickets. We are truly fortunate in Mono County not to be plagued with the same types of criminal cases that clog the courts in Los Angeles and other urban areas. However, we share with all courts an increasing number of civil matters, including evictions, debt collection, restraining orders, family law (divorce, separation, custody, visitation, support and property issues), children in need of protection and juveniles in need of guidance. These are matters that call for compassion, a deep understanding of human nature and the wisdom of Solomon. After a couple of years, you will be able to move on from the fact that your employees embezzled $2,000 from you, but you will always remember the outcome of your custody case.
I intend to vote for my friend, Therese Hankel, and not only because of the experience she has gained handling a whole variety of cases in her years of private practice in Mono County. Since coming here, I am impressed with the numerous pro bono activities she has engaged in to preserve what Mono County really stands for. Her support of local dog sled operations is but one example.
All of our judicial candidates are strong on law and order, but we need to remember that presiding over a criminal calendar is only one of a judge’s responsibilities. Regardless of which candidate takes the bench, Mono County will be well represented. I only ask that voters broaden their view of the responsibilities a judicial office entails to include the impact a judge’s decision can have on the lives of ordinary people who are not involved in the criminal justice system.
Council needs help understanding the basics
Dear Town Council:
A Town Council has to rely on Town staff for legal advice. A Council also assumes that when it adopts legislation, it has been vetted by their legal counsel. Town Council members also have a responsibility to understand some basic budget rules.
Rule number 1: Development impact fees are collected for a specific purpose and are segregated into separate accounts such as “transit and trails” and “parkland and recreation.” Development impact fees are supposed to cover one-time capital improvements which are identified as critical community infrastructure such as storm drainage in Sierra Valley. Precedures for imposing, accounting for, and USING (my emphasis) development impact fees is regulated by state statute. A DIF ordinance or resolution must establish a connection (nexus) between fees and the Town’s Capital Improvement Plan.
According to the Town’s Community Benefits Incentive Zoning (CBIZ) policy, the Planning Commission can trade away funding for critical community infrastructure for benefits located at Old Mammoth Place, but these alleged benefits are not identified in the Town’s Capital Improvement Plan. To put it bluntly, the Town has misused or misappropriated DIF fees.
The definition of appropriation is “an authorization by a legislation body (e.g. city council) that provides legal permission to make expenditures and incur obligations for specific purposes.
Rule number 2: Only the legislative body has the power to appropriate money. The use of technical words in an ordinance or resolution is not necessary to create an appropriation. The LEGISLATIVE INTENT (my emphasis) determines whether the ordinance or resolution contains an appropriation. The appropriation of public funds is a “discretion specifically confided by the Constitution to the body possessing the power of taxation.”
The Town’s Council’s adoption of CBIZ attempts to give the power of appropriation to the Planning Commission. Regardless of the language, the fact remains that the approval of Old Mammoth Place contains an appropriation or expenditure.
Rule number 3: The definition of EXPENDITURE is a decrease in net financial resources. Expenditure include current operating expenses that require the current or FUTURE (my emphasis) use of net current assets, debt service and capital outlays.
Sooner or later a Town Council will have to use general fund monies to backfill the $6.5 million traded for community benefits in the Old Mammoth Place approval, an expenditure. Of course, the council can bury the $6.5 million as an “unfunded liability” and pass the expenditure onto a FUTURE Council.
Rule number 4: Authority delegated by a Town Council to administrative staff to sign a contract or approve a warrant is an empty delegation without an appropriation. In other words, CBIZ should have had an appropriation tied to it in order for it to be legal. The appropriation had to identify how much the Planning Commission could trade away for benefits that enhanced Old Mammoth Place. When the Planning Commission approved Old Mammoth Place which used DIF, affordable housing and art fees as currency, it had no authority to do so, because the CBIZ legislation lacked an appropriation, an empty delegation.
Rule number 5: When the legislative body fails to make an appropriation, or when an appropriation is challenged, the judiciary can declare the action unlawful or unconstitutional.
I would urge the Town Council to request legal opinions in respect to trading fees and Council’s budgetary authority.
Anger is a troublesome emotion during which we are most likely to hurt others. One of the most dangerous things about anger is that anger calls forth anger. It requires great effort to be able to not respond to anger with anger. Today’s most popular political pundits know this and make a fine living playing the anger card. Their influence on some types of people is troubling. Anger addicts think they must focus on their talk-radio gurus 3 hours a day, 5 days a week and reruns on weekends not realizing how negatively this affects their overall temperament as well as their physical and mental health. Then they turn on the Fox News Channel for more of the same anger conditioning.
One can almost spot the pathologically angry and can make a pretty fair guess as to how they voted in the last General Election and whether or not their blood pressure and sense of well-being is under control.
Stacking the deck gone too far
It appears the District 3 supervisor (Vikki Bauer) has gone too far with her newly appointed members to the June Lake Citizens Advisory Committee (CAC).
During the meeting of Tuesday, April 6, 2010 the newly appointed (that very night) Chairperson Dave Naaden (also President of the June Lake Chamber of Commerce) prohibited a citizen from making public comments regarding recent major changes made by Intrawest pertaining to the Rodeo Grounds development. Naaden stated that he is the chair and he is going to run the meeting his way and there is no way he was going to allow a citizen of June Lake to spread his/her propaganda, and put a spin on or anything else. He was clearly on his bully pulpit. I was appalled that in addition to Naaden’s comments at least 2 other CAC members began jumping on the bandwagon stating that they didn’t want to hear any comments either, which was another attempt to prohibit public comments.
Was I in a Nazi war camp where prisoners are not allowed their voice? This was censorship, a violation of the Brown Act and the first amendment. I was so sickened by this demonstration I left the meeting.
It is my understanding that after he was prohibited from talking, heckled by the CAC members and humiliated in a public forum, county staff finally intervened and the citizen was given 3 minutes to make his comments, but is this appropriate conduct for supervisor-appointed representatives?
As a result of the members’ conduct the county should consider conducting investigations into any possible wrongdoing by those members of the committee and take appropriate action. A formal investigation of the CAC membership is in order to determine if there is adequate representation of all facets of the community. Clearly there doesn’t appear to be.
I did email county counsel, the two planning department county employees and Supervisor Bauer stating I am convinced the County needs to give the committee members a refresher course on Brown Act rules and guidance on correct and decent decorum befitting a public committee….and maybe removal of a few members. I was informed they will indeed give that refresher course.
As to removal….well, that is up to the supervisor’s discretion. What do you think?
Freedom of speech
When I left the big city, and moved to remote June Lake, I at least believed that I was still in the United States. Lately I have begun to wonder where I am, based upon multiple public meetings I have attended. What exactly is the issue that a few local elected and appointed officials appear to have with freedom of speech? Last I checked, freedom of speech was still the First Amendment to the Constitution of the United States, but in at least three recent public meetings I have attended, I have experienced offensive disregard for this basic right.
At two recent Eastern Sierra Unified School District board meetings, in which the public had signed up to speak, there were repeated queries by the board president, at both meetings, as to whether each intended speaker had “anything new to say.” I wonder where it is stated in the First Amendment that you must have something new to say in order to speak.
I understand that in the interest of time, it is always more constructive to build on what has been said, rather than to repeat it. However, two points come to mind: freedom of speech should not be limited its uniqueness, and repetitive opinions can have value, by emphasizing that they are of widespread concern.
I thought this was perhaps a unique trait of the ESUSD board, but now I know that’s not the case. Last Tuesday night, I attended the June Lake Citizens Advisory Committee meeting, as I frequently do because I care about the community of which I am a part. When one June Lake citizen wished to speak on an agenda item, he was at first denied that opportunity by Dave Naaden, the new CAC Chairman. The person wishing to speak was told by Naaden, before he knew what was going to be said, that it did not apply to the agenda item, and also that he did not want to hear any more of this person’s “propaganda.” This comment appeared to me to be extremely prejudicial, and also in violation of the Brown Act and the First Amendment.
The final thing that bothered me immensely was this Chairman saying, and I paraphrase, now that he was in control of the CAC meetings they would be run the way he wanted. Thanks to two Mono County representatives, and an attorney for Intrawest, who stood up and each in his own gentle way made a plug for freedom of speech, the intended speaker was allowed to speak, and the meeting moved on.
However, I have had some trouble moving on from all of this. I find all of these experiences incredibly disturbing. We need to try to remember that, though we may not agree with our neighbor, and although he or she may repeat themselves, we need to allow them to speak their opinions freely. Furthermore, elected and appointed officials in this county need to remember not to take advantage of their positions of power, in order to further their own agendas.
Is this the best we can do?
It was reported last week that Old Mammoth Place cleared the height hurdle. However, Council will have before it on April 21 a challenge to the technical and legal adequacy of the Planning Commission’s recent approval of the project.
Those of us who have spoken in support of the appeal have been alternately praised and vilified for our public position. Reasonable people can disagree. Politics and policy always go together. I support the appeal because I believe that a project of this magnitude must bear the stamp of approval of elected officials who are accountable to the electorate, but only after they conclude that it is best for the community.
In the end, politics (and life) should be more about the journey than the destination, because no destination is really permanent. This journey, and that of the developer, has required patience. I encourage Council members to continue to be patient by asking themselves, “Is this the best we can do?” If they honestly believe it is, then approve the project without modification. If they are at all unsure, then send it back to the Planning Commission with specific direction from a unified voice to make this project better.
Tenney aims for sweet spot
The sweet spot on a healthy community’s three-legged stool of natural, social and economic capital is the center of the seat. When all three legs of the stool are balanced and solidly on the ground, the seat is stable and a community is sitting pretty, guaranteed to thrive.
Mammoth’s three-legged stool isn’t so pretty. It’s been pushed to the edge of a precipice and the view is more than a little scary. The economic capital leg is hanging over the edge, ground crumbling under it. The social capital leg, the livability one, could follow. What can we do?
We can blame the global economy. We can blame Wall Street. We can blame Town government. We can bicker and blame each other. There’s plenty of blame to go around, but spreading it doesn’t remedy our situation.
A vacation in Mammoth is a luxury in these hard times. Our peer resorts are competing aggressively for limited vacation dollars. What can our community do to bring more of those vacation dollars here?
The eight candidates running for Town Council should know. Ask them what they would do to stimulate our local economy, raise occupancy rates, welcome well-planned development, encourage jobs and make it easier to run a successful business in our town.
It’s time to stop bickering and start working together to make a community to match our magnificent Mountain.
Barrett responds to Stapp
“Last week Candidate Barrett wrote that Old Mammoth Place will provide more than 376 “full-time, non-seasonal” new jobs. Unfortunately, Mr. Barrett failed to mention that the average salary of these new jobs, range from $20,700 to $22,900, approximately $2 dollars above minimum wage. The Council’s CBIZ (Community Benefits/Incentive Zoning) policy has not only traded away workforce housing fees, but has increased the number of low wage earners who will need and qualify for workforce housing.” -Kirk Stapp in his April 11 e-mail letter
The June 8 Town Council election nears and candidate Stapp and any other candidates who endorse partly or in whole his negative position regarding Old Mammoth Place (OMP) and Economic Revitalization policy in general (DRCEDS, CBIZ, et. al.) clearly demonstrate how out of touch they are with our local community workforce.
Stapp fails to realize most employees who work in the service industry, are either “tipped” employees making minimum wage or make between $10 to $15 per hour. Stapp refers to our workforce as “low wage earners who will need and qualify for workforce housing.” He implies we shouldn’t care about the 376 full-time non-seasonal jobs that could be created for our locals at completion of development. Many of those jobs bring in average daily tips from $30 to upwards of $300, and the others are back of the house positions along with middle and upper management which demand higher salaries. We haven’t even begun to discuss the number of construction related job opportunities OMP will present during the development phase.
Stapp further forgets we are experiencing a high unemployment rate, causing our working class families to leave town.
Stapp fails to take into consideration that many of our available jobs in town are seasonal at best. Stapp and those candidates supporting his position are simply out of touch. Do they not realize that the folks needing year-round employment and continued job opportunities already have housing?
Our workforce need jobs to pay for their individual and family needs.
It is my firm position that the job opportunities presented with OMP and a town-wide job opportunity plan would be welcomed by our locals, I present a draft solution on my web-site www.barrett-2010.com. Go to the Facebook link and the discussion board to see this solution and many more draft solutions for issues we face.
Continued development is not an issue. We will not see large-scale development in Mammoth for at least 5 to 7 years, so lets focus on the immediate, critical problems we face, and face them with solutions.
When making your decision on who to vote for on June 8, 2010, remember, you do have choices. There are candidates who not only feel your economic pain, but live it daily shoulder to shoulder with you. And, then there are those candidates who do not.
Who better to be in a life boat with, struggling to stay afloat, someone who feels and lives your pain with you, or someone who is simply out of touch?
My family and I are right there in that lifeboat with you. If elected, working together to implement solutions, we can stay afloat and arrive on shore with a new found sense of prosperity and hope for our future.
“Explaining” the budget …
I am the attorney for Jim and Nancy Demetriades, the owners of the Sierra Nevada Lodge and Rafters, and the applicants for the proposed redevelopment of a 6-acre site called Old Mammoth Place. This letter responds to a Letter to the Editor from Ken Warner that appeared in your March 27, 2010 issue.
Mr. Warner’s letter responds to Jim Demetriades’ expression of surprise that so few members of the public attended the public hearing at which the Planning Commission voted 4-1 to approve the tentative tract map and use permit for Old Mammoth Place. Mr. Warner attributed the small turnout to the theory that “it doesn’t matter how many people express opposition to Old Mammoth Place because they have their fingers in their ears making mouth noises so they can’t hear you.”
I have attended all of the Town’s public hearings, workshops and meetings in any way related to the Clearwater Specific Plan and the Old Mammoth Place use permit application. To my knowledge, Mr. Warner has not attended any. Had he participated at any stage of the process, Mr. Warner would know that Jim Demetriades, the Planning Commission, and the TOML staff have consistently welcomed any and all input from the public, and that Jim has incorporated substantial changes in direct response to that input. Here are just a few examples:
1. At a December 2005 Planning Commission workshop, Jim submitted a conceptual site plan which was entirely consistent with the height, density, and uses permitted by the then-applicable Commercial General zoning designation. The proposed project featured a condominium hotel, restaurant and retail uses along Old Mammoth Road, and a large special events plaza in the center of the site. Although Jim’s proposal was entirely consistent with applicable zoning, the Planning Commission was uncomfortable with the proposed 45-foot building height along Old Mammoth Road, Sierra Nevada Road, and Laurel Mountain Road.
Therefore, the Planning Commission urged Jim to scale down the height along the streets and to scale up the height in the center of the site. In response, Jim submitted a new application directly responsive to the Commission’s concerns.
2. In response to concerns expressed by the Sierra Park Villas Owners Association that the proposed hotel entrance on Sierra Nevada Road would create visual impacts and increased traffic, Jim relocated the hotel entrance to a new connector road on the north end of the site.
3. In response to concerns expressed by the TOML staff and the public that the large central plaza would be of limited use and difficult to program for events, Jim redesigned the site to include three smaller public plazas, each with a distinct design, purpose, and function.
4. In response to concerns expressed by Tourism and Recreation Director Danna Stroud that the community needs a full-service hotel that can accommodate a wedding for 250 or more guests, Jim doubled the size of the proposed on-site conference center.
5. In response to concerns expressed by the TOML staff and Advisory Design Panel that the northeast corner of the site did not create as compelling an entry statement as does the southeast corner of the site, Jim completely redesigned the northeast corner to include a prominent two-story retail pavilion to enhance the pedestrian experience for those entering the site from the north.
6. In response to concerns expressed by the TOML staff and the public that the proposed bus parking at the north end of the site would be unsightly, Jim relocated the bus parking and converted the location to a public pocket park.
7. In response to concerns by the TOML staff and Mammoth Lakes Housing that the residents of the on-site workforce housing should have access to dedicated indoor recreational space, Jim created an on-site Youth Center.
8. In response to concerns expressed by MLTPA that the proposed project did not do enough to encourage residents, guests, and employees to access the site by bicycle instead of car, Jim incorporated ample secure indoor bicycle parking spaces and a locker room in which employees can change out of their active wear and into their work clothes.
9. In response to concerns from the public that building mass might dominate the site, Jim proposed maximum site coverage of 45 percent, in spite of the fact that current zoning allows 70 percent coverage.
10. In response to the desire expressed by the Planning Commission, TOML staff, and the public that Old Mammoth Place would be Mammoth’s first truly “green” mixed-use project, Jim committed that the project would be LEED certified, that it would be constructed and maintained in accordance with the Town’s first written sustainability guidelines, and that he would fully explore the potential to incorporate geothermal and solar energy sources and rainwater harvesting components into the design.
11. In response to concerns expressed by local business owners that the costs of tenancy in the commercial spaces would be prohibitive, Jim created a glass-roofed retail marketplace, patterned after the Ferry Building in San Francisco, which will permit local businesses to lease retail space in market stalls as small as 200 square feet.
In each of these instances, and in others too numerous to mention here, the public’s input directly resulted in improvements to the design and function of Old Mammoth Place. To all those who have actively and constructively participated in the planning process these past four years, please accept my thanks on behalf of Jim and Nancy. They have been listening.