Morgan Hill is caught between the proverbial rock and a hard
place.
If they update environmental requirements for the American
Institute of Mathematics’s 18-hole golf course, they could be sued.
And, if they don’t update the requirements, they could be sued.
Morgan Hill is caught between the proverbial rock and a hard place.
If they update environmental requirements for the American Institute of Mathematics’s 18-hole golf course, they could be sued. And, if they don’t update the requirements, they could be sued.
Acknowledging they could be sued no matter how they act, Morgan Hill City Councilmembers Wednesday tabled any decision on electronics magnate John Fry’s controversial development for another day.
City staff expressed interest in indemnity on the project to protect it from possible litigation from the state’s Department of Fish and Game or environmental groups like Santa Clara Valley Audubon Society, members of which have been watching the multi-faceted project with a hawk’s eye since it started in the late 1990s. At the time, the course was expanded from nine holes to 18. The city had permitted 105,000 cubic yards of soil be tampered with, but more than 500,000 were tampered with, according to the draft environmental impact report. A final version of this report was published in 2004, and mitigation efforts have continued — and been mired in controversy — since.
The city halted the opening of the 192-acre site, located on the southeast corner of Foothill and Maple avenues east of U.S. 101., until all stipulations in the report were met, City Manager Ed Tewes said. In other words, any damage done to the existing environment had to be reversed or otherwise resolved. One caveat of these stipulations is that Institute officials get a state permit. Fry has fought this, saying this project doesn’t require a state permit. City staff proposed that the Institute provide the city with indemnity – protecting it from state lawsuits – before it hands over a permit.
“We (would) basically say, “OK, we’ll let you do what you want to do, and you’ll have to comply with state law, whatever that is, and since you’re so confident, you will pay the lawsuit (if there is one),” Tewes said.
Institute officials didn’t like this arrangement.
“If the city were to make such a demand, the institute would have to review all its options including litigation,” Attorney Anne Mudge, representing the institute and its owner John Fry, said Wednesday night. “It’s not appropriate at the time where Fry is in compliance with the law.”
Craig Breon, representing the Santa Clara Valley Audubon Society, responded Wednesday night, saying, “If she’s going to warn of litigation, we will as well. I think there’s still a violation of the Endangered Species Act that the city could be liable for so I think it’s very important for (them) to get an indemnification agreement.”
Breon said Institute officials couldn’t simply show a photo of a golf course and “say they’re environmentally great because it’s all green. That doesn’t mean much.”
Red-legged frogs, which are threatened species and have been one of the points debated, can’t be seen in aerial photos like the ones shown Wednesday, he said.
Council will likely meet with City Attorney Danny Wan in coming weeks to discuss possible legal repercussions before deciding whether or not to hold a public hearing to make permit changes that would give the institute some wiggle room in its attempts to reconcile with the Department of Fish and Game.
Councilmembers were frustrated that mitigation efforts continue to be drawn out while a world-class golf course sits untouched.
“We’ve spent more time and done more scrutinizing on this project than we’ve ever done,” Councilman Greg Sellers said. “”We need to get it done. Having it closed is hurting the community, hurting the habitat and the future of the institute. Any rational person would say it is a massive asset to the community that needs to be brought online as soon as possible.”
Mark Grzan said he doesn’t see why the city is being threatened with litigation, since the Institute Golf Course is “not a city project.”
“This project started without the proper permits in place,” he said, adding that he’d like to see Fry “take some ownership here.”
Councilman Larry Carr noted the irony of the city’s stuck situation.
“Yes, we want the applicant to abide by state law, but if we don’t work with the applicant to move forward, the environment will be more adversely impacted,” Carr said.
