The Grading Ordinance: A Slo-Mo Fiasco
by Mark Scaramella, November 30, 2011
"Fiasco, n., an absolute, abject, ignominious, ludicrous or utterly humiliating failure."
Back in the early oughts of 2000 a couple of vineyards slid onto Mendo roadways, prompting some people to wonder why Mendocino County was the only county in Northern California without so much as a minimal grading ordinance.
What's a grading ordinance? It's a means to prevent unwise development of precipitous hillsides. As it stands late in 2011, vineyard developers especially, can install vineyards on slopes so steep that any other place they could not be placed on them.
Mendocino County’s General Plan requires that a grading ordinance be developed, and years ago a Grand Jury recommended that one be developed in accordance with the General Plan.
That hotbed of grape adulation, Napa County, has a grading ordinance; Lake County has a grading ordinance; Sonoma County has a minimal “ministerial” ordinance; Humboldt County has a minimal ordinance. Mendocino County, where vineyard development is ongoing, has nothing besides the grading requirements for construction contained in the state Building Code.
Back in the early 2000s local liberals noted that since there was a “liberal” majority on the Board of Supervisors — Hal Wagenet, Patti Campbell, and David Colfax, surely these “liberals” would be able to get a grading ordinance into the General Plan. There had just been landslides onto public thoroughfares, one of them Highway 101, which would not have occurred if Mendocino County had its required prohibition against development of unsuitable hillsides in place. And surely with the grading ordinance models from nearby counties — why, a grading ordinance for Backwards Land should be a piece of cake!
Our Supervisors even replied to the Grand Jury's recommendation for the ordinance by promising to get right on it:
“Mendocino County is working with a diverse group of stakeholders to develop a grading ordinance for the County. The need for a grading ordinance has long since been recognized. However, reaching consensus on the language of any such ordinance has proven difficult. The process is currently stalled, due in part to the County's limited staff and financial resources. Additional financial resources are needed by the County in order to complete the process.”
Note the poison pill: “Reaching consensus.”
Which can't be reached with persons adamantly opposed to regulation. Which is what happened ten years ago.
Question: What do you get when you cross three ranchers, six government staffers, two builders, and four timid environmentalists?
Answer: I don't know, but it will be an orphan.
Remember Mendocino's similarly oversized and unwieldy Forest Advisory Committee? A minority of its members, surrogates for Big Timber, successfully held it hostage for more than five years, and the watered-down, long-delayed result was voted down by the Board of Supervisors when it finally came up for a vote.
An even more watered down version of neo-timber rules was subsequently produced which (barely) passed the Supervisors, but got shot down 8-1 by the timber-dominated State Board of Forestry. Eight years wasted, while cut rates went up, forests were clearcut, the big timber corporations ran away with the money, and the Mendocino County timber industry was gone just about the same time as the fish disappeared. Mendocino County has not recovered to this one-two punch to what were once its major employers.
As Big Timber was cashing in what was left of Mendocino County's forests, Mendocino County's forces of destruction were also successfully avoiding enactment of the Grading Ordinance as required by the County's own General Plan.
Grading requirements were established in the early 1980s by county, state and federal administrations because the preservation of rivers and streams is popular with just about everyone. You won't find much support for erosion, sediment-clogged creeks, very low flows, higher stream temperatures and the decimation of fish, although you will find powerful interests pointing their fingers at other powerful interests as destroyers of the fisheries.
At a meeting of the Planning Commission I attended a few years back, a member of the public asked the County to consider enacting a Riparian Zone Protection Ordinance. County Counsel Mr. J. Peter Klein, previously unknown as an expert in environmental matters, blithely replied, "Why do we need to talk about that? There's nothing wrong with our rivers."
Not only was the idea of a Riparian Ordinance quickly spiked, there's been no progress since on even the most basic grading ordinance. And, making matters worse, the County Planning Department has never enforced existing laws — quietly granting "exemptions" to grape growers so routinely that even the normally cautious National Marine Fisheries Service has been moved to complain about the proliferation of the wine industry's dams and ponds. The "exemptions" are granted on the patently bogus grounds that certain large ponds and dams have "no significant environmental impact" — in the unilateral opinion of then-Planning Director Ray Hall. (Hall, during last year's update of the General Plan, said he'd "lost" the entire Anderson Valley component.) Hall had unilaterally established standards despite Environmental Impact Reports required everywhere else.
And although County Counsel Klein is supposed to see to it that the County complies with the law, Klein never once complained about the lack of the legally-required grading ordinance or about the County's abuse of exemptions.
Before the failed Grading Committee was even finalized, the County said it was waiting for a "five county" approach, which no one took seriously because the other four counties didn't yet have endangered salmon and steelhead nor did they have large, well-funded grape growers ripping out whole ridgetops of oak trees to put in hundreds of acres of grapes, ponds, roads and dams. And most of those other counties had grading ordinances in some form.
The five-county stall went on for several years. But when the Big Stall was challenged by a lawsuit by a Fort Bragg-based “Citizens for Responsibility and Accountability in Government” — the indefatigable Roanne Withers and the late Ron Guenther — was tossed on a Ray-Hall-engineered technicality; a new stall had to be developed.
During the court case it was revealed that Hall had quietly removed the deadline for completion of the Grading Ordinance from the General Plan, and he'd done it on the Board’s consent calendar a year after the deadline had passed, on the grounds that — ta da! — the deadline had passed.
Judge Richard Henderson, firmly allied with the anti-grading forces, then ruled that since there was no deadline in the General Plan, the lawsuit had no legal merit.
What's amazing about all this is that there's no sensible reason to oppose a grading ordinance. Many local grading projects are competently accomplished even without an ordinance. A reasonable grading ordinance and an ordinary EIR review of the larger projects would benefit everyone, as well as help protect the few remaining fish in potentially affected streams. If an environmental impact report is done correctly, the recommendations to prevent erosion or, in extreme cases that we've already seen, collapse, are often voluntarily accepted by the applicant. In addition, if minimal standards are required (and minimal standards are all that's ever been proposed by anyone), the chance of erosion and sediment damage to downstream property owners is greatly reduced as well. Instead of opposing a grading ordinance, the stallers should be encouraging it.
But it was not to be in Mendo.
Grading ordinances are not complex documents. A variety of workable ordinances are already in place in counties across the state and a decent draft could be prepared by the County's Planning Department in a matter of hours. The various interests represented by the County's Grading Ordinance Committee could review and comment and the results (with options) could be presented to the Supervisors for a vote in a matter of a few weeks.
* * *
Most of the above was written in 2001. Turns out even I was optimistic. The subsequent Grading Committee labored for seven years, slowly leaking enviro members as it became more and more clear that the local grape interests wouldn’t approve any draft ordinance that addressed “agriculture.”
By 2007 the Supervisors finally realized that the committee was unable to “reach consensus” — a requirement that had intentionally doomed the committee from the git-go — so they asked nearly retired Planning Director Ray Hall to cobble together something. Hall’s draft was so cumbersome, confusing and potentially costly to enforce that nobody liked it. And it was voted down unanimously.
When it came time to write the minutes of the Board meeting where everybody had denounced what Hall had done, the minutes blandly stated:
“May 15, 2007 — Board Action: Upon motion by Supervisor Pinches, seconded by Supervisor Wattenburger, and carried unanimously; IT IS ORDERED that the Board of Supervisors directs staff to discontinue processing of the Draft Grading Ordinance (and associated EIR) concluding that other programs, including construction/post construction standards as required in the NPDES Phase II program for Mendocino County, meet or exceed the protection measures identified in the Mendocino County General Plan.”
Nowhere in any county document is the acronym NPDES mentioned, explained or referenced. It turns out that NPDES stands for National Pollutant Discharge Elimination System, a component of the National Clean Water Act. The Clean Water Act says nothing about “construction/post construction standards,” and even if it did the feds wouldn’t be bothering themselves with badly built vineyards and ponds on steep slopes in Mendocino County. If all that was needed was the NPDES, why do Napa, Lake, Sonoma and Humboldt counties all have workable grading ordinances?
The Board meeting minutes were written by Planning Director Hall who knew he could put literally anything in there and nobody would care — Hall's fantasy became official fact.
Recently, a vineyard on a very steep slope near Navarro has been installed by Napa-based Rhys Vineyards, acquired in 2007 by software mega-mogul Kevin Harvey, an arrogant bullet-head who occasionally flies in to Boonville to gaze approvingly at what he's done here. Lots of people think Harvey's vineyard on a slope the cliff-dwelling Hopi would labor to convert to housing, will slide onto Highway 128 in the next big storm. People see the looming vineyard on the steep hillside ask: What the hell is this? Why doesn’t Mendocino County have a grading ordinance?
Now you know.
"Agriculture" doesn't want one, and before agriculture Big Timber didn't want one.
Note: Consider these statements from the Rhys Vineyards website. “Harvey (the owner) has chosen to plant his Bearwallow Vineyard on steep slopes with grades of 20-40%. These areas are more expensive to plant and farm but he believes will make the most complex and balanced wine. There are at least 20 acres of potential upper slope vineyard with desirable characteristics.” And, “Our new vineyard blocks will be focused on the steep slopes with grades of 20-40%. These areas are more expensive to plant and farm but will make the most complex and balanced wine.” And, “The terrain is quite varied but only the steep slopes have the shallow topsoils and low clay content necessary for truly great wine. We are not going to plant vines in the flat, deeper-soiled areas.”
Rhys Vineyards’ list of important criteria for vineyard locations: “Steep non-forested slopes. The [steep] slopes offer the perfect soil profile. Non-forested grasslands have the low fertility and soil chemistry that is optimal for wine quality.” (“Non-forested” in this case translates to “scraped clear by large bulldozers.") “We have decided that only the steeper slopes with grades of 20-40% will be planted to vines. These steeper areas have the shallow soils, rocky sub-strata, low clay content and perfect soil chemistry that is optimal for great wine. It looks like there are at least 20 acres of potential upper slope vineyard with these characteristics.”