San Miguel land in limbo over illegal grading fines

Declaring themselves “insulted” by a proposal considered lowball, the Board of Supervisors this week declined to shrink a fine levied for illegal grading that damaged an archaeological site adjacent to Mission San Miguel to $13,000 — down from $1.8 million first sought six years ago.

“There has been something done there that was wrong,” said Supervisor Frank Mecham, referring to the illegal grading, and there has to be genuine accountability, not the “kind of an insult” manifested in the $13,000 number.

The board’s decision is the latest episode in a long-running saga involving a would-be 58-unit housing project called Mission Gardens Estates.

The location — across Mission Street and the railroad tracks from the mission — is one of the few sites in the state where archaeologists can learn about “neophytes,” which are Indians preparing to become Christians.

But the developer graded illegally there on a scale that appalled archaeologists and Native Americans. The county has sought unsuccessfully for years to collect “mitigation” money.

The board’s refusal to go as low as $13,000, and applicant Coast National Bank’s refusal to negotiate, left the project in limbo.

Coast National Bank, which foreclosed on the property in 2008, has been trying to sell it, and lowering the long-standing “mitigation” or fine would make it more attractive to a buyer.

The bank had a potential buyer in tow Tuesday: Robert Laing of the Pacific Southwest Community Development Corporation, or PSCDC, who builds affordable housing.

The board’s decision followed a complex three-hour hearing that asked policy makers to weigh the importance of providing possible work-force housing against the importance of making developers pay for disturbing irreplaceable cultural resources.

It also touched on many other policy questions, as well as legal ones, as Coast National’s attorney Sophie Treder traded legal opinions with Whitney McDonald of the county Counsel’s Office.

The tangled Mission Gardens Estates project entered the public pipeline in 2003, when the earlier developer submitted an application to develop the site.

After the illegal grading came to light in 2005, the Planning Commission said that under the law the developer must pay to mitigate the damage or, as environmental planner Steve McMasters described it, pay to a “compensatory mitigation fund that (that would) offset the impact to cultural resources.”

The money collected would, generally, go toward education, mapping cultural resources and other such endeavors, distributed in a manner to be decided by a committee that included Native Americans.

The Planning Commission in 2006 calculated the damage done by the illegal grading at $1.8 million. The then-Board of Supervisors cut that in half.

Meanwhile, the project was moving forward on the planning front. Supervisors approved it in 2006. Then the economy went south, and in 2008 the bank foreclosed on the property.

Last year Coast National Bank, which still owns the property and still has approval for it, sought to change some of the conditions of approval. That led to Tuesday’s hearing.

Some of the proposed changes were relatively minor, such as fiddling with secondary access and tinkering with park fees.

But the greater part of the lengthy afternoon was devoted to the illegal grading and whether the bank should pay to mitigate it and, if so, how much.

Treder and other bank representatives argued that the previous contractor, Gordon Marshall, not the bank, graded illegally, and they shouldn’t be held fully accountable.

However, Supervisor Bruce Gibson noted that the bank had made the loan to the developer in fall of 2005, after the illegal grading had been made public. The Tribune ran a front-page article about it July 12, 2005.

If the bank didn’t know, it should have, several supervisors implied.

During the discussion, the bank pointed out that the county had a long-stated goal of providing work-force housing, which Laing said he might be able to do should he take over the project.

However, under questioning from Supervisor Jim Patterson, Laing could provide few specifics on where his financing would come from, whether he would limit the housing to low-income people, whether some of the homes might be rentals and similar questions.

When supervisors asked Laing if building the project was a sure thing, he said, “There are no guarantees in life.”

Supervisors also stressed the importance of acknowledging that, as Mecham put it, “There has been something done there that was wrong.” In addition to the site’s historic value, Mecham spoke about its spiritual importance for Native Americans.

Mecham asked the bank if it would settle for a $450,000 mitigation fee over five years, and Gibson, made wary by the extended legal back-and-forth between Treder and McDonald, added that the bank should also guarantee the county that it wouldn’t sue over the question.

Coast National said no on both counts. They also turned down Mecham’s suggestion that the board delay a decision and try to reach a middle ground.

“The board’s come a long way,” Patterson said. The bank “came to us with an ‘all or nothing’ proposal.”