By Shawn Raymundo
San Clemente is a step closer to formally ending its relationship with the Transportation Corridor Agencies, as the city council voted last week to pursue plans that would remove the city from the toll road operators’ governing boards, as well as cut off its statutory payments collected from local developers.
Fueled by ongoing mistrust in the TCA’s commitments to support the completion of a free arterial thoroughfare instead of a toll road through San Clemente, councilmembers voted, 4-1, on Tuesday, April 6, to initiate the steps in exiting from the agencies’ boards of directors.
“Our open space will always be in (the TCA’s) eye of what they would like to do, just by virtue that we kept it open,” Mayor Kathy Ward said, referring to the contentious—but now abandoned—proposals to extend the 241 Toll Road through much of San Clemente’s open space. She later added: “It’s time for someone to say that this is over.”
The vote stems from the TCA’s opposition to two pieces of legislation from Sen. Patricia Bates, who’s proposing to permanently end the 241 at Oso Parkway and provide further protection from development within the city’s open space.
TCA board members last year voted unanimously to pursue an extension of Los Patrones Parkway as a county-owned route that would stretch from Oso Parkway, through Rancho Mission Viejo (RMV), and end near the San Clemente city line on Avenida La Pata.
County and RMV representatives have maintained that Los Patrones will remain an arterial road. And TCA officials, responding to the belief that the parkway could be a “Trojan horse” for a toll road, have stressed that there is no plan connect the 241 to Interstate 5 via San Clemente.
Though last week’s move is believed by some councilmembers to be another strategy in thwarting the TCA from ever constructing a toll road extension in San Clemente, others such as Councilmember Laura Ferguson, the sole no vote, are concerned it would take away the city’s voice regarding road planning measures.
“Having a seat at the table; we need a voice. Without a voice, we’re silenced, and we have a lot of open space,” Ferguson said. “I know we’ve taken great strides to create easements, and that’s very positive; however, we need to continue to be part of the TCA boards and monitor that and protect our community, open space, businesses, and the residents.”
The TCA on Friday, April 9, wouldn’t comment specifically on the matter, other than to reiterate its previous statement that “it would be unfortunate for San Clemente to give up its voice on mobility issues affecting South Orange County.”
Both Ward and Mayor Pro Tem Gene James, the city’s representatives on the TCA boards and who have ardently supported talks of exiting the agencies, argued that their voices have been stifled and that their seats are largely symbolic.
“I’m not concerned with not having a seat at the table, because I feel like San Clemente just doesn’t have one anyway,” Ward said, noting that neither she nor James sits on any TCA committees. “It’s been set up that way, not by us at all, but set up by the board, and I think there’s no going back on that.”
James echoed that comment, stating that he rejects “any notion that we have a seat at the table.”
“We only have a seat on the table as it looks on the organizational chart,” he continued. “I enthusiastically think that withdrawing from the TCA, beginning that process tonight, is a great thing for this city.”
The vote last week officially tasks city staff with drafting the withdrawal notice that will later be presented to the council for approval. It also authorized Ward to seek a waiver from the TCA, which requires such notices to be submitted at least 120 days before the end of a fiscal year—June 30.
“It turns out, we would’ve had to give them notice in early March. And so, we just barely missed that ability to do that,” Ward explained. “And so, we would ask the TCA to waive that requirement and take our request now.”
Part of that request will also ask the TCA to confirm whether San Clemente has any financial commitments that first need to be paid before exiting from the joint powers authority (JPA) that formed the agencies.
“The JPA says that you can withdraw and you can stop charging development impact fees unless they’re pledged to debt service,” City Attorney Scott Smith explained to San Clemente Times last Friday. “So that’s the second part of the request. I don’t think the DIFs are pledged to TCA debt, but we need to confirm that.”
Last year, the TCA’s principal debt stood at about $4.7 billion, while the future interest and principal was slated to total about $11 billion. The TCA’s Foothill/Eastern agency is expected to complete its debt payments by January 2053, and the San Joaquin Hills agency is scheduled to complete payments by January 2050.
The TCA on Monday, April 12, noted that its debt, including interest and principal over the life of the bonds, is now totaled to be about $10.3 billion after recently executing two bond refunding opportunities to reduce interest rates.
In addition to having city staff prepare the withdrawal notice, the council also voted, 4-1, with Ferguson again dissenting, to further the ongoing process of ending the development impact fees (DIFs) the city pays to the TCA.
Under local ordinances that each member city enacts after joining the JPA, a city collects the fees from property owners of new developments built within its respective area that’s supposed to benefit from the toll roads.
As of the end of 2020, the city’s total contribution in impact fees to the TCA amounted to just shy of $54.76 million—about 7% of the $765.74 million that the toll road agencies had collected, according to DIF data.
The city has argued that San Clemente’s residents haven’t benefited from a toll road because the TCA never completed its southern alignment of the 241, which was initially intended to connect to I-5, south of San Clemente.
In 2016, the TCA abandoned plans to complete the alignment—a connection also referred to as the “green alignment”—after reaching a settlement agreement with environmental groups that contested it.
“The TCA had every opportunity to do the right thing here, and should have done it years ago,” Councilmember Chris Duncan said of the fees. “As soon as they decided not to complete the green alignment, they should have affirmatively decided to reduce the (DIFs) that they demanded from San Clemente, because they knew they weren’t going to be used for that.”
San Clemente’s fees far exceed that of other South County cities such as Aliso Viejo, Dana Point, Mission Viejo, Rancho Santa Margarita and San Juan Capistrano. Only the County of Orange and the cities of Irvine and Lake Forest have paid more.
The TCA has explained that the amount of money a city has contributed is tied to the length of time a city has been a member, as well as the development that has and will occur.
According to the TCA, San Clemente has been a member since 1986, whereas Rancho Santa Margarita—a city at the centerpiece of Councilmember James’ ire for only paying about $1.48 million—has been a member since 2000.
RSM “did not join the JPA until many years after San Clemente, and a portion of the development in RSM occurred when it was unincorporated County land, so the fees would have been collected by the County,” the TCA has explained.
To address the perceived discrepancy, the council last week voted to have Smith and interim City Manager Erik Sund conduct a study to calculate a “fair share reduction” in San Clemente’s DIFs, and also initiated a plan to rescind the ordinance that established the fees.
The same vote also allowed the council to further consider taking legal action against the TCA, by seeking a judicial decree that finds the agencies in breach of its JPA agreement—a process that began last summer when the city notified the TCA of the alleged breach.
Ferguson said she was hesitant to also support the route with the DIFs over fear of provoking more legal battles.
“I’m very hesitant to do that because of the legal implications for us in terms of litigation,” she said.
Councilmember Steven Knoblock agreed with the sentiment that if the green alignment of the toll road is never going to be built, then the city’s developers and residents should no longer be on the hook for the fees.
However, he also echoed Ferguson’s concerns on litigation, noting that by rescinding the ordinance establishing the fee collection, the city could be opening itself up to the claim that it’s in breach of the JPA agreement.
“By eliminating the ordinance that we have a legal obligation to enforce, we are in effect breaching it,” Knoblock said. “We’ve given notice that we think they’re in breach, but we’ve taken no action. By doing this, we’re taking action.”
Smith agreed with Knoblock, adding that the goal is to first get the judicial decree before the ordinance has officially been rescinded—a process that requires a handful of steps including a formal introduction to the council, a second reading and then 30-day enactment period.
“What we would hope is for all these things to be coordinated so that we’re in court, the ordinance takes effect, and we get a judicial decree about breach all at once so that you’re not at risk for not collecting the fee,” Smith had said during the council meeting.
As to whether these actions, namely exiting the JPA, would preclude the agencies from ever driving a toll road through San Clemente, Smith and the city would not provide a firm answer, stating in a report “the details of this assessment remain confidential.”
Expounding on the position, Smith on Friday said he didn’t believe it was wise to publicize his assessment of the strategy for fear that it would be used to the opposition’s advantage.
“There’s positions that you feel, there’s strategies that you think are very sound and others that are worth a try, and I don’t think it’s a good idea for a lawyer to let his client’s opposition know how you handicap strategies,” Smith said.
In the same report to the council, Smith noted that the county is still the general authority when it comes to developing highways within the region. He also pointed to the case of Laguna Beach—a non-TCA member—that still had a portion of its land used for the TCA’s San Joaquin Hills Transportation Corridor (73 Freeway) despite the city’s opposition.
The TCA had constructed the toll road that was later inherited by the California Department of Transportation (Caltrans) per a 1995 agreement stipulating the state agency would assume maintenance responsibilities for the freeway.
“The state of California and Caltrans have the ability to put state highways anywhere they want,” Smith explained this past Friday. “So, at the end of the day … it came down to that, where the state of the California wanted the highway to go; and that can happen over local opposition.”
In the city’s report, Smith also noted that there are also “legal, practical and fiscal advantages” to withdrawing San Clemente from the TCA. One example, he wrote, would end a requirement that the city “reserve” or zone property for a freeway right of way.
Following the 2016 settlement establishing an “avoidance area” that included the San Mateo Watershed and Trestles south of San Clemente, the TCA began considering alternatives such as the routes that had the toll road cutting through portions of San Clemente and San Juan Capistrano.
Those proposed routes seemingly came to an end in March of last year, when the TCA’s Foothill/Eastern board voted unanimously to pursue the Los Patrones extension as an untolled county thoroughfare.
The proposed route, which is currently in the concept phase and needs to undergo an environmental report, would extend further south from Cow Camp Road in RMV and end roughly 700 feet past San Clemente’s city limits on La Pata.
Despite last year’s vote that removed the toll road extension proposals from the table, local officials have remained skeptical of the TCA, believing the agencies in the future could attempt to turn Los Patrones into a toll road that connects to I-5 via San Clemente.
Those fears have only been amplified since last month, when both TCA boards voted overwhelmingly to oppose Bates’ bills. Since then, TCA officials have emphasized that there are no plans to build a toll road within the city.
Stakeholders, including Orange County Board Supervisor Lisa Bartlett, as well as other county officials and RMV representatives, have similarly maintained the position that Los Patrones will remain a county-owned arterial.
Those officials have recently attempted to provide the council with assurances that any proposal to convert Los Patrones would prompt legal battles between the TCA and the county, and would be difficult to accomplish based on the specifications of the two road styles.
Fears that the TCA is keeping the proposed 241 extension routes in its back pocket also come after the Orange County Grand Jury released a report last year, finding, among other things, that the TCA has continued to place itself in road planning projects beyond its legislative purview.
The TCA has rejected the report’s findings, and stated that “all projects undertaken by TCA are well within TCA’s legal authority” and that state law authorizes the agencies to “fund, plan, acquire and construct major thoroughfares and bridges in Orange County.”
With the intention of wrapping up the ongoing conflict by reaching a consensus on Los Patrones and the toll road, Supervisor Bartlett recently convened a stakeholder meeting with officials from San Clemente, the TCA, RMV and Orange County Transportation Authority.
“The lawyers aren’t participating in that, so that’s refreshing, isn’t it?” Smith said sarcastically. “But, yes, I think that’s the idea there; is there something that’s pretty simple, is there something other than a judicial decree that resolves all of this? Where the freeway is going, why? Who pays for what? What benefit to San Clemente still exists? All of that.”
Separately, the Foothill/Eastern TCA convened a working group comprised of members of that specific agency. The working group, which has met three times already, is aimed at “resolving the City of San Clemente’s concerns,” according to the TCA.
“The new Foothill/Eastern South Working Group is a focused team with equal representation from the key stakeholders, the cities and county district along the Los Patrones Parkway corridor,” the TCA said in an email last week.
“Unfortunately, the City of San Clemente has thus far declined to participate,” the TCA added. “It is our sincere hope that San Clemente will come to the table to work in partnership with the other stakeholders and directly share their ideas on a consensus agreement.”
Ward, who sits on the Foothill/Eastern TCA board, previously explained that while she was invited to participate in the working group, she declined to attend over its opposition to having James also sit in on the discussions.
“It required Gene James to be there, because he is part of the subcommittee,” Ward had said, referring to the city’s ad hoc toll road committee that she and James represent. “In my mind, the TCA didn’t respect what my council had set up, and I’m not sure they really wanted it.”
The TCA explained that the group consists only of Foothill/Eastern TCA board members. James is a member of the San Joaquin Hills board.
“Director Ward was invited to be part of this group, along with Director Bartlett and the other F/ETCA Directors whose cities are directly impacted by these issues,” the TCA said in its email.
During last week’s council meeting, Ward described Bartlett’s stakeholder group, which had met for the first time earlier that morning, as a “good faith process to ensure that no major thoroughfare will be built through San Clemente.”
“Over the next few weeks, we will continue these discussions with the hope of putting this chapter behind us,” Ward said. “For now, the city will stay the course and make sure the interests of San Clemente are protected.”
Asked whether the city’s actions to withdraw from the TCA and cease paying DIFs would jeopardize the good faith talks, Smith said he wasn’t sure but that he’ll know more by next month, when TCA is expected to weigh in on Ward’s waiver request.
Shawn Raymundo is the city editor for the San Clemente Times. He graduated from Arizona State University with a bachelor’s degree in Global Studies. Before joining Picket Fence Media, he worked as the government accountability reporter for the Pacific Daily News in the U.S. territory of Guam. Follow him on Twitter @ShawnzyTsunami and follow San Clemente Times @SCTimesNews.