Re: Opposition to Property Specific Request Desert Subregion 24 (DS-24) proposed change from Semi-Rural (SR)-10 to SR-1 under the current San Diego County General Plan encompassing ~172 acres of pristine desert (APNs 198-320-01 and 198-320-26)

Dear San Diego County Advanced Planning Staff,

Tubb Canyon Desert Conservancy (TCDC) was established to preserve desert habitat and biodiversity, to protect native plants and wildlife, and to promote understanding of these special places. Tubb Canyon Desert Conservancy represents numerous desert landowners and visitors to the Anza-Borrego Desert in the vicinity of the proposed DS-24 Property Specific Request located on ~172 acres (APNs 198-320-01 and 198-320-26). It is our strong assertion that any increase in density on the DS-24 site would adversely impact neighboring landowners, Anza-Borrego Desert State Park, Pinyon Ridge Wilderness, rare species, and the associated economy of Borrego Springs.

DS-24 is located at the southern edge of the unincorporated San Diego County community of Borrego Springs. The high conservation and pastoral recreational value of the two subject parcels was broadly recognized during the protracted San Diego County General Plan process, resulting in the final determination to include DS-24 in the lower density SR-10 zoning designation. This decision was correct and fair and should not be altered. The current owners of the property had the same opportunity as all landowners in the immediate vicinity to provide input during the lengthy General Plan update process.

The high density of buildable lots surrounding the sand dune and a dense ocotillo forest on the DS-24 site as represented on the County planning maps for DS-24 is not reflected in reality and actual land use. DS-24 is not, as described by the property owner, “in-fill” to existing residential housing. In spite of the name “Country Club Road,” there is no country club or high-density development in the area around DS-24. In fact, many local residents in the immediate area have deliberately “self-zoned” at lower density than the current SR-2, SR-1 or Village Residential (VR)-2 permits by purchasing vacant land (lots) on one or more sides of their own homes to prevent future development, which, in turn, preserves natural vegetation and wildlife habitat, maintains their semi-rural lifestyle, and protects their scenic views. Many more residents desire to purchase the vacant lot or lots around their homes; however, they cannot yet afford to acquire those parcels. Allowing DS-24, currently zoned low-density SR-10, to become a more “urban” SR-1 would result in smaller lots than currently exist in the surrounding residential area. See the attached aerial photos that document the actual low density of the neighboring homes adjacent to the DS-24 parcel as well as the floodplain and dune complex on the site.

The approved General Plan appropriately took the discrepancy between the County-specified density and reality into consideration, along with other germane factors, in lowering the zoning density for the open space parcels: APNs 198-320-01 and 198-320-26. It should also be noted that the two, large DS-24 parcels have never been subdivided and have no certificate of compliance.

In this context, the owners of DS-24 should not be granted a special zoning change that has been denied to other adjacent landowners of large parcels. All property owners should abide equally with the new, lower density zoning in the region. Area landowners recognize the importance of a low-density, natural habitat buffer zone around their homes (or planned homes) that complements and protects adjacent Anza-Borrego Desert State Park. Area landowners, that is, excluding the owners of DS-24, notably Rudy Monica, David Davis, and Chris Brown. It is unacceptable that these property owners, who had no active application in County Planning for any project at the time the General Plan was approved, should be granted a free Subsequent EIR, conducted at taxpayers expense, to further their desire to be granted special privileges that other County landowners in the immediate area will not receive and that would be contrary to public interest.

In fact, local opposition to the numerous incarnations of the proposed high-density subdivision promoted by owner Rudy Monica has been consistent and so strong over the years, that immediate neighbors of the site, the larger community, state park personnel, local news media and even some law enforcement and utility company staff routinely refer to the DS-24 project as “Rudyville.” This is because the ostentatious name of “Borrego Country Club Estates” used in past Project documents and at Borrego Springs County Sponsor Group meetings, was perceived as absurd for what has become, over the years, a scheme to grade 172 acres of pristine desert into a grid of small, vacant lots for sale. Borrego Springs already has a large surplus of buildable lots for the foreseeable future, especially considering the new limitations on water resources in Borrego Valley.

The density proposed under the requested change for DS-24 would no longer be acceptable in the current, critically overdrafted state of the Borrego Valley Groundwater Basin (BVGB). Regarding water resource limitations on land use planning mandated by the adopted Groundwater Management Plan (GSP) under the Sustainable Groundwater Management Act (SGMA), please refer to the comment letter from TCDC dated 17 December 2015 at the Notice of Preparation public hearing (copy attached).

In a related matter, TCDC is concerned about inadequate construction of water service infrastructure and the wastewater disposal system for any increased density development proposed on the DS-24 parcels. In a letter dated July 24, 2008 sent to the San Diego Department of Land Use and Planning, Kenneth H. Lounsbery, of Lounsbery Ferguson Altona and Peak LLC Attorneys at Law, wrote the following:

According to the description provided by the developer, the Project will be served by on-site septic systems and groundwater from the Borrego Water District, which will require: 1) the construction of an off-site well that would be tied in to the District water system; 2) upgrading or increasing the pipe sizes surrounding the property; and, 3) upgrading the existing water tank located to the west of the Project with trenching and land disturbance to connect the project area to the tank.

Regardless of whether a well is even feasible (there is reason to believe it is not, since a nearby well is going dry with minimal water supplies remaining), the developer’s plans are more problematic than considered in the Project’s reports. The plan is for the developer to dig a viable yield well elsewhere in Borrego Valley, then lease or donate the well to the Borrego Water District. The Borrego Water District would, in turn, import water to the large storage tank to the west of the Project site and pipe it to the development. This will require additional trenching for the pipes, over land that has recently been donated to Anza-Borrego Desert State Park.

Because Borrego Springs is in the Colorado River District, it falls under the jurisdiction of the Regional Water Quality Control Board, which has started to require treatment plants for housing developments with ten (10) or more units. [ Kurt Schauppner Desert Trail, “Who has Sewer Power? The City” March 2, 2007 ] The only indication that the developer has considered wastewater disposal systems is by a reference in a letter dated February 18, 2008 from the County of San Diego Department of Environmental Health, Land and Water Quality Division which notes deficiencies in the developer’s replacement of the Tentative Map, dated December 19, 2007. According to this letter, with the increase in the number of lots, the developer failed to provide percolation test data on certain lots; failed to include the layout of the existing well, or the layout for the proposed onsite wastewater disposal system and reserve area. Lastly, the letter notes that “leach lines may not exceed 24 inches of cover and lines may not be placed in fill or in areas of disturbed soil.” The fact is that all of the lots in the Project area would be elevated on sand fill from the graded down dune.

The Department of Environmental Health did not recommend approval of the subdivision proposal or the associated preliminary grading plan.

Not surprisingly, there is also a dearth of information in the record on plans for wastewater disposal and / or sewage treatment plans, either on the tentative maps or the preliminary grading plans. Given the Department of Environmental Health’s concerns and the possible restrictions by the Regional Water Quality Control Board, the property owners in the Borrego Community (and the County) should be wondering what the developer plans on doing with the sewage from 150+ residences. Apparently, the developer is proposing to grade lots for sale and is not planning on building a planned development.

Most egregiously, the proposed development of the DS-24 parcels involves an unpublicized, covert preferred alternative to infringe on the property rights of neighboring landowners, through eminent domain and local “assessment district” fees, in order to build the subdivision in a hazardous floodplain. ~60% of the proposed project site is located in a desert riparian floodplain susceptible to periodic flash flooding. Such floods in the desert are a periodic, natural, and beneficial phenomenon that brings water to an otherwise parched landscape. Floods move soil nutrients for vegetation from higher locations to lowlands. Floods also form the ephemeral streams and ponds that numerous species, such as frogs and waterfowl, require for sustenance and reproduction. There are even certain native plants, such as smoke trees, whose seeds have evolved to only germinate after a flood has rolled and battered their tough outer surface. Flood damage to the seed coat signals that there is water present to nourish the seedling, which in turn triggers germination at the right time. Regardless of the role flash floods play in Nature, desert floodplains are an unsafe and unwise location to build homes.

The document and accompanying maps, “Flood Hazard Evaluation for Borrego Country Club Estates” was prepared by Walter F. Crampton, Principal Engineer for TerraCosta Consulting Company, to analyze flood issues for the DS-24 site; dated August 27, 2007. The report incorrectly states:

“The 2,700-foot-long existing dike within the headwaters of the Culp-Tubb Canyon drainage was constructed by the County in the 1970s to divert flood flows to the south away from the populated east of Country Club Road, and has effectively done so for the last 40+ years.”

The earthen dike in question was not built by San Diego County, nor does the County own or even maintain that dike or the smaller sub-dikes located northwest of the main dike across Tubb Canyon Bajada. No easements vesting the levees in the public domain have ever been granted or recorded. The main dike and sub-dikes were actually built by the Army Corps of Engineers, some would argue illicitly without the permission of the original landowners. Examination of historic aerial photos will confirm this along with the consistent recollections of long-time local residents of the area. Why were the earthen dikes built by the Corps? During a year of serious floods across the U. S. Southwest, the Army Corps of Engineers was assigned to protect public safety and property by constructing emergency levees in many locations, including in Borrego Valley. The dike in question, which is being allowed to naturalize over time, is privately owned. Burrowing owls live on the east side of the main dike berm. Eventually, the floods from Tubb Canyon and adjacent mountains will erode the levee and water will once again flow across the bajada and into Anza-Borrego Desert State Park.

None of the owners on whose property the old earthen dike and sub-dikes exist would allow the County or any other agency to construct a new, 5,800 foot long concrete dam to federal standards across their land. Nor would neighboring property owners east of the dike approve the construction of concrete channels down unpaved Tubb Canyon Road, per the proposed plans to protect the DS-24 parcels from future floods. Only a forced taking of private property, which each and every owner has promised to oppose, would enable a major dam system to be built on the natural desert. Apparently, the developers who own the DS-24 parcels have considered exactly that approach.

In the “Flood Hazard Evaluation for Borrego Country Club Estates,” author Walter F. Crampton recommends the formation of a “Geologic Hazard Abatement District (GHAD)” to finance the design and construction of an expanded dam, flood channels, and additional dikes. An abatement district levees a tax burden on all the neighboring properties alleged to “benefit” from the project.

This covert Draconian flood control plan to enable a high-density subdivision to be built where it does not belong presents grave environmental concerns. Blocking natural flood waters from desert trees and ocotillo in the State Park would degrade the high diversity currently thriving on the bajada. An expanded concrete dam and channel system would also be a visual blight marring the scenic vistas and state park. More ominous is the fact that this extensive dam system and channels, including full blueprints, was never publicized by the developers, not to the affected neighbors who would lose their properties and not to the Borrego Springs Sponsor Group during the many briefings and discussions about the “Rudyville” project. This sort of subterfuge is chilling. It makes one wonder what else is not known about this project. The intent to charge neighbors through a special assessment district, as well as to take private land by eminent domain, in order to build a large development for their own profit, is unacceptable on multiple levels. This massive flood control plan should be definitively opposed by San Diego County. TCDC and the affected landowners oppose this plan along with any attempt to impose an assessment fee on surrounding neighbors.

DS-24 is located within walking distance of Anza-Borrego Desert State Park and is a component of the transition zone between the Sonoran Desert (Colorado Subdivision) at its western terminus with foothill chaparral. As with most transition zones, the DS-24 site supports significant biodiversity and listed species due to the variety of vegetation regimes and terrain located in close proximity. The slightly wetter transition habitat where DS-24 is located encompasses the westernmost complex of Sonoran desert sand dunes, home to numerous lizard species, including the Flat-tailed Horned Lizard (Phyrnosoma mcallii), a California Species of Special Concern, which favors stable dunes and desert riparian gravel flats. See the annotated California Department of Fish & Wildlife map attached. The property in question is also an attractive hunting ground for a resident population of Burrowing Owls (Athene cunicularia), another California Species of Special Concern. Burrowing Owl populations remain in decline across much of their range.

DS-24 is adjacent (within walking distance) to the federal recovery area for the endangered Peninsular Desert Bighorn Sheep (Ovis canadensis nelsonii / cremnobates). See the annotated U.S. Fish & Wildlife Service map attached.

The varied terrain on the DS-24 site attracts a variety of migratory birds to its ephemeral water sources and ancient ocotillo forest, including several species of hummingbirds, hawks, warblers, and orioles. Bats roost nearby within local cliff cracks and small caves, flying out at night to feed on abundant insects present around seasonal water sources. The full spectrum of species living within the subject area has not been fully documented, merits further study, and is deserving of full protection from destruction.

As noted by County planners, the current designation of SR-10 for the undisturbed desert on the DS-24 parcels qualifies for habitat reservation measures under the Conservation Subdivision Program

(http://www.sandiegocounty.gov/pds/advance/conservationsubdivision.html). The requested SR-1 designation would not qualify for that program.

As previously mentioned, a vast majority of neighbors and visitors familiar with “Rudyville” have strongly opposed the project in all its various forms over the years. Local neighbors and landowners greatly value the wildlife, wildflowers, and a large, ancient ocotillo forest located on the subject site that was once a popular destination highlighted on local tourist maps. Development of DS-24 threatens the quality of life and property values of neighboring residents.

Grading the stable dune and ocotillo forest into rows and rows of elevated vacant lots would result in unconsolidated sand and fine particulates becoming airborne in the frequent high winds (60 to 80 mph) that blow across Tubb Canyon Bajada from the western mountains. Dust storms created by vacant lots would blow into other neighborhoods and pollute the clean, dark skies that are highly valued in Borrego Valley. Borrego Springs is one of only nine IDA-certified “International Dark Sky Communities” in the United States: http://darksky.org/idsp/communities/. The tourism value of the Dark Sky designation would be diminished by the proposed development, as would business to a variety of local overnight accommodation and eating establishments, and other businesses supported by tourism.

Destabilizing the sand dune would also increase health risk in the community. Many persons move to the desert to improve their health, including seniors and those with allergies and other respiratory conditions. DS-24 is located in a high wind corridor that would pick up fine sand and dust particles from the 172+ acre denuded dune and graded floodplain, creating localized dust storms that would lower air quality to an unacceptable level, both in the immediate area and farther away in residential and recreational areas “downwind.” The resulting degraded air quality would also diminish the tourist value of Borrego Springs and the surrounding State Park, resulting in harm to the local economy. Tourism revenues have decreased in other communities where a nearby land use change has resulted in an increase in thick haze, high airborne particulate counts, and more frequent asthmatic, allergic, and other negative respiratory reactions in visitors and local residents.

Country Club Road across the DS-24 acreage is not paved. Roads planned through any future subdivision, along with the numerous vehicles associated with a higher density of homes, would bring undesirable and intrusive traffic through on existing narrow roads and through quiet neighborhoods, thereby changing the pleasant character of the semi-rural streets and sparsely spaced desert homes. According to the 2006 Transportation Analysis for developing the DS-24 site, the proposed subdivision would generate approximately 1,480 average daily vehicle trips, with 118 occurring during morning peak hour and 148 in the PM peak hour. Much of this traffic would be directed onto West Star and East Star Roads to the north of the site. These roads are both narrow (~20 feet wide), rural in nature, and insufficient for increased 2-way traffic flow. Redirecting traffic out via those low density roads will require extensive widening and redesign that will adversely impact adjacent, established homes, and increase danger to pedestrians and animals, including wildlife and horses. Increased commercial vehicle traffic serving the proposed subdivision, such as heavy garbage trucks, UPS and Federal express delivery trucks, etc. will greatly accelerate road wear, necessitating more frequent and costly road maintenance and repair.

Increased traffic, private and commercial, would also contribute to higher ambient noise levels generated by a concentration of houses in what is an otherwise very low-density location. Noise generated by an increased density of homes and associated human activities on the DS-24 parcels would reverberate off the nearby mountains and canyons, causing unacceptably high noise levels locally and across the adjacent State Park. Noise is potentially destructive to both wildlife and the tranquil setting visitors expect in the State Park. Neighbors who moved to the outskirts of town for added solitude highly value the subtle sounds of nature around their homes, including bird songs, the chorus of frogs and toads after rain, as well as serenades by coyotes out on the bajada. All this would be lost if the DS-24 site is ever developed.

Increased traffic also has the potential adverse impact of vehicle emissions generating an inversion layer, further degrading air quality and visibility in the Borrego Valley. This consequence of increased traffic needs to be fully evaluated.

A higher density subdivision would destroy ancient Native American sites. Tubb Canyon Bajada was once heavily used by the local Cahuilla for their seasonal harvest of agave. Nearby canyons and arroyos were a reliable source water in the desert from both nearby springs and ephemeral floods. Potsherds, stone hand tools, and other artifacts are often found in the surrounding area and are no doubt present on the DS-24 site.

Lastly, it has come to our attention that an owner / investor in DS-24, Chris Brown, is allegedly a former San Diego County employee who has worked directly for Supervisor Bill Horn in matters of regional planning. This relationship raises conflict of interest questions originating at the 2012 Board of Supervisors hearing that authorized a Property Specific Request (PSR) for the DS-24 site… in spite of strong, ongoing community and Borrego Springs Sponsor Group opposition… and, in spite of the fact that there was no active application for any subdivision project on the DS-24 parcels in the County planning system for several years before the new General Plan was ratified. The value of a “free” EIR for the landowners of DS-24 is immense, because this costly process may lead to special privileges for Mr. Brown not granted other landowners in the same area, and likely involving eminent domain “taking” of nearby properties for the purpose of a future subdivision.

This PSR is particularly unjustified considering the fact the owners’ original project plan for “Borrego Country Club Estates” (TM5487) had been in the County “dead file” for years at the time of General Plan approval. All this, along with the substantial impacts raised in this letter, generates suspicion about how a Project Specific Request for DS-24 ever qualified for County consideration.

Based on all of the reasons and evidence presented herein, TCDC urges the County to disqualify and remove DS-24 from the collective Property Specific Request SEIR process (thereby saving taxpayer funds and conserving limited County resources, including valuable staff time). In any case, the County should deny the zoning change that the owners of DS-24 have requested.

J. David Garmon, MD

President, Tubb Canyon Desert Conservancy