Grading Ordinance Redux
by Mark Scaramella, January 15, 2010
Back in the early oughts (aka 2000-2001) there were a couple of high profile slides of vineyards onto roadways. The slides caused some people to ask why Mendocino County was the only county in Northern California without even a minimal grading ordinance.
After all, the County’s General Plan specifically required that a grading ordinance be developed and the usually cautious Grand Jury recommended that one be developed.
Napa County has a decent grading ordinance; Lake County has a decent grading ordinance, Sonoma County has a minimal “ministerial” ordinance, Humboldt County has a minimal ordinance. But not Mendo.
At that time local liberals noted that since there was a “liberal” majority on the Board of Supervisors -- Hal Wagenet, Patti Campbell, and David Colfax, none of whom did or have done anything remotely liberal, but... Surely the liberals would be able to get a grading ordinance done with the two big slides, the General Plan, the models from other counties — why, it’s should be a piece of cake!
Mendo’s Board of Supervisors even replied to the Grand Jury with an empty promise:
“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 resouces are needed by the County in order to complete the process.”
Notice the poison pill: “Reaching consensus.”
In the weeks after the Board set up the Grading Committee I wrote an opinion piece for the Ukiah Daily Journal when I first heard the composition and charter of the committee. It was all so familiar.
* * *
The Grading Ordinance Shuffle (Ukiah Daily Journal, April 2001)
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.
The shotgun marriage created by the Supervisors a few weeks ago known as the Mendocino County Grading Committee isn't likely to produce any decent offspring.
Remember Mendocino's similarly oversized and unwieldy Forest Advisory Committee? A minority of its members successfully held it hostage for more than five years, and the watered-down, long-delayed result was voted down by the Board of Supervisors which impaneled it anyway. An even more watered down version was subsequently produced which (barely) passed the Supervisors, but got shot down 8-1 by the State Board of Forestry. Eight years wasted, while cut rates went up.
The Forestry Board said Mendocino didn't need its own forestry rules because the County's large timber companies would be required to submit "Sustained Yield Plans." (They had used the years-long delay of the Forest Advisory Committee rushing to cut what was left of the County's marketable timber; then sold out and left -- A few plans were prepared, but later dropped in favor of "Option A" plans which didn't require any notions of "sustainability," much less public or governmental review.)
Mendocino County's latest approach to long-delayed compliance with federal and state law and its own General Plan is clearly an attempt to stall some more. For more than a decade Mendocino County has scrupulously and successfully avoided enactment of the Grading Ordinance required by the County's long-standing General Plan. The requirement was put in there 20 years ago under conservative county, state and federal administrations because the preservation of the County's rivers and streams is popular with just about everyone. And you won't find much support for erosion, sediment-clogged creeks, and the elimination of fish.
But now almost everyone agrees that's what we've got.
At a joint meeting of the Planning Commission and the Supervisors 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, heretofore not widely thought of as an expert in environmental matters replied, "Why do we need to talk about that? There's nothing wrong with our rivers."
Mr. Klein's intentional blindness is apparently catching. Not only was the idea of a Riparian ordinance quickly spiked, there's been no progress on even the basic grading ordinance. And, making matters worse, the County Planning Department isn't even enforcing existing laws -- quietly granting "exemptions" to grape growers so routinely that even the normally cautious National Marine Fisheries Service was recently moved to complain about the proliferation of 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 Director Ray Hall at the Planning and Building Department, anyway. Trouble is, when it comes to things that might affect endangered fish, Mr. Hall doesn't get to set such blanket arbitrary standards. That's what the law says Environmental Impact Reports are for.
And although Mr. Klein is supposed to see to it that the County complies with the law, he's never complained about the lack of a legally-required grading ordinance or about the county's abuse of exemptions.
Before the Grading Committee was finally formed, the County used the excuse that it was waiting for a "five county" approach (which no one took seriously -- the other five counties don't have endangered salmon and steelhead -- yet -- nor do they have large, well-funded grape growers ripping out large swaths of oak trees and putting in hundreds of acres of grapes, ponds, roads and dams; nor did those other counties have grading ordinance requirements in their General Plans). The five-county stall (combined with an irrelevant nod to the state's building code) had served as the County's preferred method of stalling for the last few years. But when that approached was challenged by a lawsuit, a new stall had to be developed.
Hello Grading Committee.
What's amazing is that there's no sensible reason to oppose an ordinary grading ordinance. Many grading projects are done right and will be unaffected. A decent grading ordinance and an ordinary EIR review of the larger grading projects would benefit everyone, as well as the few remaining fish. If an environmental impact report is done correctly and sensibly (also as called for in the law) the recommendations to prevent erosion or collapse are constructive and are frequently voluntarily accepted by the applicant. In addition, if minimal standards are required (and minimal standards are all that's being 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.
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 newly formed Grading Ordinance Committee could review and comment and the results (with options) could be routinely presented to the Supervisors for a vote in a matter of a few weeks.
The Grading Committee is another transparent stalling maneuver and should not be supported. (Let me guess: the Committee will labor at great length and recommend that certain grading permit applications be signed off by an applicant-paid geologist. And the Board will eventually approve an even weaker version of that.)
Any similarly ineffectual orphan of an ordinance that this committee produces which also gets the support of a Board of Supervisors which has done everything in its power to avoid the issue for so long is going to face a legal challenge. And the sooner that happens so that the issue is at least resolved one way or the other, the better for all concerned.
* * *
That was 2001. Turns out even I was optimistic. The Committee labored for seven years, slowly leaking enviro members as it became more and more clear that the grape interests wouldn’t approve any draft ordinance that address “agriculture.”
By 2007 the Supervisors finally realized that the committee was unable to “reach consensus” -- a requirement that 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.
Rubbing salt in the wound when it came time to write the minutes of the meeting where everybody denounced what Hall had done, the minutes blandly said:
“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 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 -- if imperfect in several ways -- grading ordinances?
The Board meeting minutes on this topic were written by Planning Director Hall who knew he could put anything in there and fantasy would become official fact.
Now, a new vineyard on a steep slope right above Highway 128 has been installed by a Napa-based winery. Lots of people think the entire affair will slide onto Highway 128 in the next big gullywasher/logroller of a storm -- if there ever is one. (Some people think there’s a big one looming in the Pacific. We’ll see.) Some local newcomers who see the looming vineyard on the hill are asking: Why doesn’t Mendocino County have a grading ordinance? Why doesn’t the (again) “liberal” board of Supervisors empanel another Grading Committee?
Now, having read this, they know.
For an example of the vineyard mentality the grading ordinance advocates are up against (not the one referred to earlier), simply look at the text and photos at these two recent websites: