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Trouble Sleeping? Here, Take A Re-Zone

by Mark Scaramella, April 9, 2014

Last week we reported the County’s difficulties in rezoning a minimum number of Ukiah area acres to satisfy a court-ordered settlement agreement with Legal Services of Northern California. Legal Services had sued the County for failing to meet State low-cost requirements.

There’s much more to the story.

One of the properties on the list of potential rezones was a vineyard south of Ukiah owned by the Zaina family. Predictably, they were dead-set against being involuntarily rezoned — so much so that they hired an associate attorney from the Jared Carter Property Rights Law Firm out of Ukiah named Matisse Knight.

Knight

Knight

The articulate Mr. Knight, a veritable Matisse of rezone you could say, gave the Board more information than they wanted on the Zaina Vineyard re-zone and the Board eventually voted to remove Zaina from the list of proposed “affordable housing” sites.

Whether Legal Services or the Court will accept the remaining properties, roughly a munificent 15 or so acres — the settlement agreement said a minimum of 17 was needed —  remains to be seen. The judge could theoretically impose a building moratorium on the County, but we doubt he would.

Knight shredded County planning and the County’s legal work, as flawed in the Zaina matter as it was on the Garden’s Gate fiasco a few years ago (which was ultimately approved but never built after four years of “planning,” as Knight made clear. As usual, the Supervisors expressed exactly zero dissatisfaction with their staff’s poor performance, and the Good Ship Mendo, listing far from any recognizable port, chugs on. We quote Knight at length, and the tale he tells is one of gross, inexcusable incompetence on the County’s part.

* * *

Matisse Knight: “The Zaina family understands that the county is in a tight spot. You have a settlement agreement that you entered into back in 2010 or thereabouts that requires certain things. The problem here is that what you are proposing for this property is not going to get you out of that tight spot. Maybe the Zaina family could help you because they are the owners. But there has been no cooperation, no collaboration with the family as to how they might be able to help you get out of this. This has simply been presented as a forced rezone. Your tight spot is not the fault of the property owners here. This process as we have heard has taken a long time. Probably understandably, Legal Services of Northern California is a bit frustrated with the slow progress and they are putting the hammer down through the courts. I suggest that you go back and look — and you may not want to go back and look and recall the 2009 proceedings when the general plan was adopted — but the letter submitted by Legal Services of Northern California as to the problems back then are indicative of what you may see in the future here. Legal Services had a problem with the proposed rezoning and current zoning back in 2009 and 2010 not because you did not have enough properties with the two letter zoning designation on them. They had a problem with the fact that properties that were designated for multifamily development or proposed to be designated as multifamily development could not actually be developed. They did not meet the spirit of what we are trying to do and that is to provide housing. You are heading down the same road with this property and in this case. There are issues about whether this property could meet the needs of multifamily residential development. When the county adopted the general plan back in 2010 or so and redesignated the land-use designations of some of these properties to of the Zaina property, it was with a deliberate understanding that the property at that time would not be rezoned. The land-use designation was made but they were not rezoned. It was a conscious decision by the county to say that we will not proceed on these until the property owners come to us and want to be rezoned. But that’s not what this proceeding is about. The Zaina family is not coming to you asking that this property be rezoned. So that’s not consistent with the state putting us in this position of changing the land-use designation a few years ago without changing the zoning. Now we are in a position where the rezoning has to be forced. That picked up about a year ago. The Zaina family understood that there was a possibility of some forced rezoning. They came in and talked with the planning staff to find out what was happening. They left those meetings with the understanding that nothing was going to happen to the Zaina property. The property would not be rezoned. That changed about six weeks ago when they got a letter that just said we are going to rezone your property. No discussion. No explanation as to why or what the ramifications would be. No explanation of what it means to the property. Just a mandate saying we are going to do this. Then we met with planning staff again to find out why. What’s going on? We were told essentially that this has to happen. We are under the settlement agreement and we have to rezone your property. We started asking questions about what that means. What does it mean to the property owner now that it’s going to go to R-3? What does it mean for the county? The responses were essentially, Well, we don’t even know the details right now. We don’t need to know what the impacts are for this specific property. We don’t need to get into “the weeds.” But understanding the impact on the property owners, understanding whether you are providing them with property that they can now market, understanding if the property can be developed as proposed, is not getting into the weeds! It’s something that needs to be understood and is not understood and it is not addressed now and it makes it not appropriate to go forward with this forced rezoning. ‘The staff report doesn’t address any of this other than to say that what we are doing here is programmatic so we don’t need to address the details. But when you know what a specific project is, and make no mistake this as a project, rezoning the property is a project. And when you know the specifics of what you are doing which is nine acres of Zaina property from suburban residential to R-3. That’s a project. You know that what is being proposed that that gives as a matter of right the opportunity to develop 196 units on nine acres of vineyard property. You know that in this area on South State Street there have been other development projects that have been proposed. The Garden’s Gate project is just to the north. There are 197 units on that project (not built). You are likely familiar with, and planning staff certainly is familiar with the hoops that had to be jumped through just to get that property approved. No groundbreaking has happened so far. But just to get it approved the engineering feats that had to be designed into the plan to deal with issues like sanitation and storm water — as we understand it the Garden’s Gate project had to design some underground vaults that would store stormwater because of the physical limitations that the property has down there in that part of South State Street which are only going to be compounded by adding another 197 units potentially in this area of State Street. It cannot physically happen like that down there. Now you are presenting to the Zaina family a property that will have a portion of it arbitrarily designated for 197 units that they if at some point were put in a position where they had to sell that property and market it, they would now have to market with a development designation as a matter of right which provides for development that physically cannot happen. How do you market that? That’s a question we presented to staff and again we were told that those are ‘the weeds’ that we don’t need to get into right now. But we do need to understand that. And that’s what the Zaina family is asking for. Also, what does this proposed rezoning mean for the county? Remember that the county is under this settlement agreement. The fire has been lit to get these rezonings done in line with that settlement agreement. But what does that settlement agreement require? Under that agreement the county must rezone land that is required to be vacant or underutilized. This is a productive vineyard. Are we going to tell this family that’s been farming there for 100 years that this is vacant and underutilized? Apparently that’s the suggestion here. It also has to be suitable for development under the settlement agreement. Part of that settlement agreement says basically that today if you were to approve this action the probably owners need to be able to go to the Ukiah Valley Sanitation District and be provided with hookups that will serve 197 units. We know that there is a hook up basically at the health club across the street maybe 100 feet from the corner. Probably there is the smallest service line that Ukiah Valley Sanitation District has servicing the health club and the industrial complex there. But there is no discussion of how you are going to hook up 197 units to that small distribution line or if Ukiah Valley Sanitation District can even handle it. No discussion of that. But under the settlement agreement you have to be able to provide that today. That isn’t there. There are also as we discussed significant drainage issues. The Garden’s Gate Project had to find a way around that with some engineering feats that nobody has ever taken on to break ground with. If you’re going to add a development of 197 units just to the south of that the drainage simply will not support that. Staff knows that. And because of that knowledge it needs to be addressed. If you know about issues on a particular project, you know the specifics and you know where the project is, you cannot go back and rely on the Ukiah Valley Area Plan environmental impact report which looked at the big picture. Nowhere in that EIR can you find this property discussing development potential of 197 units and the environmental impact that that will have on that particular area of South State Street. It must be fully addressed and the impacts must be looked at and they are not. The 2010 housing element specifically says that the county has sufficient property zoned for multifamily residential development to meet all of the state requirements. That’s right in the housing element. It’s quoted in my letter. Was that not true? Does the county actually have enough residentially R-3 zoned property, mixed-use zoned property to meet state requirements? Because that’s what the housing element says. What has changed? The housing element is being presented as the basis for the need for this change but the housing element does not provide a basis because all it says is we have enough and we want to maybe provide ourselves with a little bit of a buffer so we want to rezone 24 acres or a little more. But providing a buffer is not a reason to force rezone and take property rights from property owners. Instead, if it’s really necessary this should be more of a collaborative process. There should be some discussion if the county really wants to do this with the people who want to get you out of that bind. What sort of incentives can be provided? What kind of explanation of the impacts can be provided? There should be legitimate discussion and study of what this means for the property owners and the county. And that’s what this family has asked for. Slow down a little bit, don’t take the recommended action today, but maybe take some sort of action, maybe take some action towards the Planning Department that it’s time to move on and time to get going and time to sit down with Legal Services of Northern California and have everybody understand the predicament that everyone is in and whether or not there is actually property that can be developed and rezoned and discuss whether or not we can meet the requirement of the settlement agreement and how we’re going to do that. What we have not even heard, and here we are a month after the Planning Commission meeting and it is not known if Legal Services will even accept this property as satisfying the settlement agreement. How are we a month after the Planning Commission meeting and not knowing the answer to whether or not they will accept this as falling under the settlement agreement? Can you imagine where we will be if you force rezoning on this property and then the court comes back and says, Well that does not meet our requirements. Then you have more potential issues with the property owners and you have an issue with Legal Services of Northern California and the court. That’s just not a path you can take right now. Slow it down a bit and ensure that these properties will meet the requirements of the settlement agreement and see if there’s something you can work out to cooperate with the property owners. Don’t expose the county to litigation on multiple fronts which is what this could potentially lead to.”

* * *

Prior to the rezone discussion, Supervisor Dan Gjerde offered one of the strangest reasons we’ve ever heard — and we’ve heard some doozies, from judges especially — on why he felt he should recuse himself from the discussion involving the affordable housing rezoning: “I’ve had a chance to talk to legal counsel. One of the property owners is co-owner of the hotel where I sometimes stay and I have negotiated to get a lower price. The County Counsel doesn’t believe — isn’t certain if that’s a legal conflict of interest but due to the appearance — the possible appearance of a legal conflict I’m going to recuse myself and not participate.”

Please, Dan.

Supervisor Pinches (after both Supervisors McCowen and Gjerde had recused themselves) joked, “So they’re falling like flies.”

Supervisor Hamburg, seeming to agree with the implausibility of Gjerde’s reason for walking out, joked, “Well, I live near one of the properties so I’m going to — No. Just kidding.”

* * *

After McCowen and Gjerde had recused themselves from the discussion, the decision to proceed with the rezoning of the eight parcels to multi-family residential (R-3) came down to only Supervisors Pinches, Hamburg and Brown. Pinches made it clear that he would not vote to force a rezone of a piece of commercial property north of Ukiah near the Forks, nor would he support the forced rezone of the Zaina vineyard property (mostly for reasons expressed by attorney Knight. This created a procedural problem, one that is very common with elected boards which operate in accordance with the California Open Meetings Law (aka, the Brown Act). Anyone with even passing experience with the Board voting rules under the Brown Act knows that it takes a majority of the board, not a majority of those present, to approve a motion, as noted by Supervisor Pinches who knew he could block the forced rezone of the two parcels in question:

Pinches: “I realize the problems we’re having with the settlement agreement and I realize that the court should recognize and I believe the court will recognize that we’ve made significant progress on this settlement agreement. So I don’t think it’s all lost with what we’ve got left here. We’ve already accomplished four, plus these [remaining] six pieces of property today. So I support moving forward with six parcels, but not the Zaina [vineyard] property or the commercial piece of property out there at the Forks (north of Ukiah). We can argue about this all we want but it takes three votes to do it.” Hamburg: “Does it take three? It takes three votes?” Pinches: “You have to have three. Yes, it takes three. Oh yeah.” Hamburg to acting County Counsel Doug Losak: “It takes three votes or two votes?”

Pinches: “It takes three votes. Right?”

Hamburg: “Doug?”

Losak: “It takes two. A majority of the Board.”

Hamburg: “Ok. That’s different.”

Pinches: “Are you sure about that?”

Losak: “A majority of the Board that’s hearing this issue.” Pinches: “Well, so there are some options.”

Supervisor Brown said she was worried about the court ordering a moratorium, so she reluctantly supported rezoning all eight parcels to multi-family residential to keep a moratorium from being imposed on the whole county.

Hamburg then moved to rezone in the hope that the Zaina vineyard property could be rezoned again later with an as-yet non-existent “mixed use” zoning option.

So the motion “passed” 2-1 with Pinches dissenting.

But — about four hours later — the Board revisited the issue at the initiation of Mr. Losak:

Losak: “I just want to tell you that after this morning’s meeting on Agenda Item 5b I did some research and discovered that I was incorrect. I just looked at Government Code 25005 which states that Board action to proceed, um, it needs a vote of three members of the Board of Supervisors even if there are only three sitting up there.”

This began a long, rambling and confusing discussion about a motion to reconsider the item. Attorney Knight, the only person in the room all the way on task, said that they couldn’t move to reconsider the earlier motion because there was no “majority” in the first place because only two Board members voted in favor, which was not a majority of the five-member board.

Acting County Counsel Losak told the board that they had to move forward to “reconsider” the prior vote even though they could have simply moved to approve the six parcels on which there was agreement. Nevertheless, after several minutes of back and forth about who could make the motion and who could vote for what and when, Supervisor Brown finally moved to reconsider and the three remaining members of the Board rambled around some more and finally agreed to rezone the six agreeable parcels.

All of which could have been avoided if Losak had known the very basic rule he later “researched” or if he had at least taken Supervisor Pinches’s earlier cue — “are you sure?” — to look it up before giving erroneous advice.

2 Responses to Trouble Sleeping? Here, Take A Re-Zone

  1. Mark Scaramella Reply

    April 10, 2014 at 11:54 am

    (Temporarily) since the morning when Mr. Losak incorrectly advised the Board that a majority of the (three person) Board hearing the item can approve it even if there are only three present. Losak corrected himself later in the day as noted above. Board neophytes come across this question periodically and as newbies they tend to want to approve something for expediency’s sake with two of three votes rather than wait until more members are on hand. But Losak should know better and should not even have had to “research” such a simple question. Besides, it’s bad policy. If you were an elected board member of a five member board would you like it if two of your colleagues approved something you disapproved of just because you were not in the room at the time of the vote? It leaves open the possibility that votes could be gamed and planned to avoid full deliberation and voting and that’s why the rule says that it ALWAYS takes three votes, no matter who may or may not be present at the time of the vote. Also, in this case, the staff should not have bunched all the rezones into one item, thereby risking several recusals for one or the other. They should have repackaged them so that as many as possible could be voted on by the full board, then dealt with the possible recusals one by one. Again, you can’t expect inexperienced board members to always catch this kind of thing. But STAFF is supposed to know how it should be handled. Unfortunately, Mendo is a no-complaint zone — it’s “inappropriate” to complain or be negative, you see — so this kind of stumbling handling has become common. Nobody pays attention most of the time anyway (unless someone hires a sharp attorney like Mr. Knight), so Mendo keeps electing people who are quite happy with the third-rate status quo. (c.f., Kendall Smith as a prime example.)

  2. John Sakowicz Reply

    April 9, 2014 at 4:44 pm

    Two votes does it? Only two? Since when?

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