Dredging Up Fees; Building Fences

by Mark Scaramella, April 23, 2010

Is the silt from this harbor clean? Who knows.

At the beginning of last week’s Board of Supervisors meeting Fifth District Supervisor David Colfax asked if anyone knew what happened to the mud recently dredged from Noyo Harbor.

“Is it dredged up material or is it part of the stream, which changes it?” asked Colfax, “it” apparently a reference to the Noyo's seemingly unaltered streambed. The Supervisor said a constituent had asked him about it, alleging that the mud was “saturated with heavy metals — that’s my interpretation.” Colfax said the river dregs had been dumped on ag land, possibly on Biaggi Road outside of Fort Bragg where, the implication was, it would get into the food chain and our collective life span reduced.

Fort Bragg Supervisor Kendall Smith, acknowledging that she had “no specific information” on what was being done, replied, “In general Noyo dredged material is cleaner than other dredged material. And silt is relatively clean.” Smith said there wasn’t much industrial activity in the Fort Bragg harbor and that such issues “will be explored by the Harbor District.”

And there it ended, in the wild blue yonder where the non-issue had begun, and one more example of the aimlessness characteristic of much public discussion. If Colfax's “constituent” was truly concerned he would have researched the implied contamination and streambed alteration himself. If Colfax were concerned, he'd look into it himself, or ask Smith to look into it. But it died, and left only a tiny seed of remote possibility for eco-paranoids to chew on. This is what Mendolib, elected and at-large, does best — posturing. Raising nebulous or non-existent environmental concerns gets your greenie card punched on the cheap. And blathering them to death makes them go away.

The most time consuming items on last Tuesday’s agenda were fee increases for County services and whether or not to approve a coastal development permit for an area near the Ten Mile Dunes, north of Fort Bragg.

Most of the fee increases were not questioned because, the supervisors agreed, the County needs money, not that the County is anywhere near full austerity-mode, as supervisor Pinches instantly pointed out. Pinches was amazed that there were nine people in the Department of Public Health laboring in the Tobacco Control Program as he also acknowledged that not all of the nicotine warriors are employed full-time. Pinches thought that basing the $290 tobacco sales license fee, in part, on fines and penalties amounted to “guilty before innocent.”

Supervisors Colfax, Smith and John McCowen also thought that the County should shift to “full cost recovery,” whatever that means. According to CEO Carmel Angelo the policy of the previous board was not to charge the full cost of various “services” the County performs. The three supervisors seem to favor charging people the full cost of whatever “service” the County provides. (Toll roads anyone? Pay as you go law enforcement?)

The same three supervisors also thought it was peculiar that the County could legally only recover what it actually spends, but that since funds were tight these days the County was spending less and less so total funding was spiraling downward with “actual cost.”

The biggest proposed fee increase was for Development Agreements, because, Planning and Building Director Nash Gonzalez explained, the effort that went into the Garden’s Gate Development Agreement (for a several-hundred unit subdivision south of Ukiah that will never be built after years of supervisor-imposed delays and a housing market since gone deep in the tank) cost the County much more than it got for the permit.

“I don’t necessarily disagree with the rationale or justification for these increases,” said Supervisor John McCowen. “But last year I objected to the format, the multiple formats even in departments. The presentation varies. This is a disservice to the public. The copies are very hard to read. The color coded chart is in black and white. And I object to continually having to turn the binder one way and then the other. It was hard for me to support last year and it will be harder this year.”

Supervisor Smith didn’t like the presentation either.

“I concur with Supervisor McCowen. This shows a lack of leadership out of the CEO's office. Each department should have a checklist to ensure uniformity. What are the four or five tests they went through? Is all cost recovered? What is the process? There should be five or six things for each department that they should have gone through. There’s no uniformity or process. And why did those who didn't increase their fees do that? Why were some departments not on the list? We should get a comprehensive binder. And we should have the color indicators if they're in there.”

A visibly annoyed Board Chair Carre Brown took offense at Smith’s slight of the newly promoted CEO:

“Supervisor Smith, your comment about the CEO's office — I strongly disagree with you.”

Colfax argued that charging more fees for environmental health and planning and building services would save contractors and builders money because it could produce more timely inspections, as compared to now where work can be delayed, and costs incurred, especially on the Mendocino Coast, until inspections are complete.

(Gualala's popular Bones Road House Restaurant has re-opened without final permit approval. It was destroyed by fire last year and has re-established itself in a new location. Its owner told the ICO last week that 20-plus employees desperately needed to get back to work, hence his frustration with the County's slo-mo permit process. The County has shut down restoration work on the Gualala Hotel in another gratuitous slap at local small business due to paper processes bogged down for reasons no one in authority seems able to explain.)

Supervisor Pinches disagreed with his three nit-picking colleagues.

“No matter which way you turn this binder, the fee increases are from 30% to over 1000%. Thousands of people provide service in the private sector. They don't say they're going to raise their prices from 30% to 1000% and we're going to give you slower services and maybe less of them. This is the wrong time to do this. It’s regressive. It may look good so we can plug $272k into the revenue side. And that will certainly help. But these fee increases seem regressive. There are always enough votes to get these increases approved. If we're going to go to full cost recovery, then let's charge some of these heinous criminals some of the cost recovery for the whole criminal justice process. If we're going to raise the fee for a mom and pop liquor store for tobacco licensing, then let's raise the fee for the guy who goes in and robs that same liquor store when we catch him. Let's go after everybody, not just the business people who are trying to do things legally to make a living.”

Supervisor Smith then launched one of her patented follow-the-bouncing-ball-of-my convoluted presentations that finally screeched to a halt with something like, “Why not charge by the hour for Planning and Building and Environmental Health services like Sonoma County does?”

Planning Director Nash Gonzalez said doing that would create an accounting nightmare because each project applicant would have to pay up front and then hours and dollars would have to be tracked against each account, which would be way too expensive to stay on top of.

“There would be too many trust accounts and too much accounting effort,” said Gonzalez.

Smith wasn’t satisfied.

“Why not set a minimum fee for small projects and charge an hourly fee for just the bigger ones?” she asked, although it took her several minutes of repetition as she slogged through the swamp of her malarial rhetoric.

“We are going in the wrong direction when applicants don't pay their fair share, but less than the actual cost,” grumbled Smith, rambling on and on about “fairness” and “process,” before morphing into a denunciation of the way the County does business based on “decades of low balling and a folksy style,” a reference that would have mystified everyone present if they hadn't given up trying to figure out what the garbled Fort Bragg rep was getting at.

Smith had been going on for well over the allowed time per the board’s rules. Board Chair Carre Brown tried to stop her: “Supervisor Smith, we need to…”

Smith said, “OK,” then babbled on for several more minutes, rudely ignoring Brown’s courteous attempt to shut her up.

Brown waited a few more minutes before saying, “We need to wrap it up, Supervisor Smith.” The board chair could have added, “It's time for your meds.”

Smith ground to an incoherent halt as Colfax finally moved to approve the fee increases with an eye toward moving to “full cost recovery” in the future.

The board voted 3-2 in favor of the fee increases, with Supervisor Pinches opposed because they were “regressive” and the overworked McCowen opposed because he had to turn the binder to read them.

* * *

Next up: Approval of a short section of the Coastal Trail along the beach north of Fort Bragg. This particular segment has an interesting history, and shows how extraordinarily difficult and time consuming it is to give the public access to the California Coast in accordance with the Coastal Act, approved decades ago and slowly, slowly assembling the trail, piece by piece, a process that is expected to take decades more.

The issue last week was whether to approve putting a rudimentary “earthen” foot path with some boardwalk sections on about seven thousand feet (about a mile and a quarter) of coastline along with some fencing and a couple of small footbridges.

The easement for this stretch of beach was acquired late last century when the owners of the now defunct Orca Inn property near Westport gave the County a 7,000-foot easement in exchange for being allowed to tear down the old Orca and build a new Orca on the bluffs. After the deal was made, the Orcas decided not to proceed with the new Inn, but they left the easement agreement uncontested.

Neighbors to the north and south of Orca hired Jared “Takings” Carter to roll back the easement because they didn't want the rabble trudging through between them and their 80-foot ocean view windows and the pure tedium of their unchanging deep blue ocean views. Carter appealed the Coastal Permit Administrator’s decision to approve the trail development to the Board of Supervisors.

Carter thought the whole idea was bad and infringed on the property rights of his clients, going on for some 15 minutes about the terror represented by a few hikers walking along the ocean bluffs. Carter’s property rights arguments seemed to resonate with Supervisor Colfax.

“How the trail is put together is under our purview,” began Colfax, as another uniquely Colfaxian disquisition kicked off: “So I have a problem with regard to the posts being down after five years. It's incredibly bad planning to even suggest that. Either redwood or treated wood or conceivably cedar should be used. And dog proof mesh fencing? What’s that? I've got a couple of dogs here that can go through just about anything if they want to, and if I'm out there with the dogs and it breaks away from me it'll be in there with the cattle. So what is this dog proof mesh fencing that will not be a monstrosity? I mean, I can imagine you could put chain link fence along the highway. I don't think that's the kind of thing we would find appearance-enhancing. So I'm concerned about the simple, the kind of cavalier attitude that, Yeah, we'll put up these kinds of posts and we'll put up dog proof mesh fencing. What's going on here? This doesn't seem like good planning at all, especially for a planning agency. I'm concerned about the fencing and the vagueness and the way it would look. Ordinarily we would require some sort of drawing showing what it would look like with that kind of material. There are other segments with open fencing and the landowners do not require fencing. ‘The people want it and need it’ apparently so we have to get people on it. We are creating a safety hazard and we owe it to the public not to create a situation where people are going up and down a road to get to an area they may have heard about or seen and want to walk the distance. There are too many things left open here. We've spent so much time on the height of the fencing or the color of the fencing or the angle of the fencing that in this particular case we don't even have a sense of whether it's going to be a four foot high fence or a six foot high fence and what the fencing is going to cost, how we're going to space the poles, etc. etc. So this is, from my perspective at least, a potential desecration of a section of the coast and then we're saying that people will come out for bikes? Again, from what I read here, bikers will try it once and will not go out there again. It'll be off-road vehicle bikes rather than touring bikes. That's a distinction you might want to get on that trail, or once you're on it if it is finished here the way it is described here, so I think it is a very incomplete proposal and without being against the coastal trail and without seeming somehow to be against this but I… This is premature. I would be much more comfortable if we were to simply say find money from the coastal conservancy and leave it open until we find the things we need but don't put people on it or don't put fencing up because there wouldn't be any particular reason for doing so until we get the other pieces of the segment together. But to grab a segment like this and then bunch it up the way we're doing seems to be very problematic.”

A lady from the Mendocino Land Trust, adopting the soothing voice of the instinctive therapist, replied that the Trust will use correct materials, that the fencing will be deer fencing as approved by the property owner, and that people will be asked to keep their dogs on leashes.

Anybody who's walked the bluffs and Coast trails knows that the tiny minority of people one meets there are as responsible a group of people as can be found; they know that slob behavior could quickly ruin a unique landscape. One seldom meets slobs on the trail. They're sedentary. If they can't get there in their vehicles, they aren't going.

“Ok. Thank you,” said Colfax, pulling in his horns in the face of impervious niceness.

On this one, Supervisor McCowen was quite clear and direct. “You can't put [the Coastal trail] all together at once,” said McCowen. “It has to be done in pieces. If you let neighboring property owners weigh in property owners get a veto. There may be concerns and issues we can deal with. But this will take years and decades, a segment at a time. We can put conditions in place that will address their concerns. … Mr. Jackson, the property owner and the most affected person, supports it. The neighbors have concerns, but they exist now without a trail. We should complete the trail and then address them with a management plan and signage and maintenance. The Coastal trail is a jewel. The more inviting Mendo becomes to travelers the more it helps the local economy. We should address the concerns but we should not miss this opportunity.”

That's right, supervisor, and the Fort Bragg area of Mendocino County is the only part of Mendocino County attractive to visitors though a discerning minority do head for the relatively unspoiled Anderson Valley.

“I'm not an expert in many things on this job,” said Supervisor Pinches, not a person likely to be seen jogging the Haul Road on the Fort Bragg bluffs, “but one thing I am an expert on is building fence. If you use cedar cores that are treated when green, they'll last five years, if they're treated when dry they'll also about 15 years. They should be ten foot apart. There’s a wind factor over there. But anything will need replacement after 15 years. If you use good redwood post with preservatives it will last a lifetime. Most Californians support the coastal trail idea. I have some reluctance to support this, though. There are some real strong legal issues. Maybe we are pushing this too fast. I understand the Land Trust wanting to get something built. But maybe the full burden legally will fall on Mendocino County. Mr. Carter brings up a good point. You can't look at a partial project under CEQA [the California Environmental Quality Act]. You must look at all areas. This is kinda hanging ourselves on a limb. I’m reluctant to support it. Maybe you can work with Caltrans to mitigate the issues. But we have time to do that.”

McCowen replied that the Coastal Conservancy funding might not be available in the future with California’s declining economy, urging his fellow Supes to approve the very modest trail project.

Board Chair Carre Brown appeared to be the swing vote since Supervisors Smith and McCowen were in favor of the trail but Pinches and Colfax wanted to hold off and go slow.

Brown said she agreed that the neighbors had valid concerns, but when it came to the vote she voted for the trail development, and it passed 3-2, Supervisors Pinches and Colfax dissenting.

One Response to Dredging Up Fees; Building Fences

  1. Eric Sunswheat Reply

    April 28, 2010 at 2:44 pm

    FOCUS: (MMIC – SB 420 Medical Marijuana Identification Card)
    Description of Fee: Medical Marijuana Application Fee Medi- Cal Client
    Description of Fee: Medical Marijuana Application Fee Non Medi- Cal Client

    Proposed Action – AMENDING RESOLUTION NO. 09-279 AS ADOPTED ON DECEMBER 15, 2009, BY MODIFYING THE MASTER FEE SCHEDULE (EXHIBIT X), WITH THE AMENDMENT TO BE EFFECTIVE JULY 1, 2010

    Honorable Chairperson Brown and Board Members: Meeting Date: April 13, 2010

    I recommend that proposed fee increase for Budget Unit 4016 (MMIC Medical Marijuana Identification Card), be struck from the proposed Resolution for further study, as the County is vulnerable within 120 days to litigation under Government Code Section 66022 for violation of Government Code Section 66014 and to litigation for violation under the real law of interest, that being Health and Safety Code 11362.755.

    Procedurally, from a necessary minor technical legal aside, with a quick read of Section 66014, it does not appear that the reference to Section 66014 in the proposed Resolution, has any legal foundation for assessing a fee increase for the State of California County Medical Marijuana Identification Card program authored under SB 420. But the County is making this claim, and is one legal basis to strike fee increase.

    The more substantial germane legal basis to strike a MMIC fee increase from the proposed Resolution, is Health and Safety Code 11362.755(a) which states in part:

    11362.755. (a) [IN PART] Each county health department or the county’s designee may charge an additional fee for all costs incurred by the county or the county’s designee for administering the program pursuant to this article.

    My contention and claim is that the County of Mendocino Medical Marijuana Identification Card staff administration is doing more to drive up costs and reduce access to the program than required or allowed by state law, and that these additional costs are discretionary on the part of Mendocino County, and these additional costs or fees averaged per client served, are not reimbursable via the mechanism of the proposed fee increase under state law.

    I briefly reviewed MMIC application guidelines for over 20 Counties in California.
    1) No other County requires an applicant to have a phone number, to receive a call on a random day or time, from a County of Mendocino blocked phone number about scheduling an appointment. (Page 1 of 3.)
    (2) No other County has a convoluted 3 minute voicemail message about making an application appointment, as one can hear by calling Mendocino MMIC program voice message at (707) 472-2784, which highlights in summary:

    Reached mmic program.
    Messages only for id card.
    For questions regarding laws in Mendocino County and zip tags, call sheriff office.
    Received message, return in order received. Please state name and phone number.
    Will not leave message, unless…
    If not return call within week, will be checked off list.
    Call again.
    Only attempt return call 3 times.
    Program running about one month late.
    All patients need to come in.

    (3) No other County MMIC programs are running a month late as claimed by the voice message of the Mendocino MMIC program phone number just mentioned, yet serving a minimal amount of clients monthly as identified in the Agenda Item Staff Report, with a needless game of phone tag appointment obstruction and blocked number incoming call intimidation.

    (4) In my brief survey of California, most other County MMIC program fees are lower than Mendocino, with a few at about the same rate, and another few much higher.

    (5) Websites for most Counties spell out to call for an appointment, some allow walk-ins to make an appointment or be seen without an appointment, after those with an appointment are served. Many Counties have the courtesy to list times and days of week when their MMIC program offices are open, but Mendocino does not even indicate what day of the week it might call back prospective applicants or what day it’s office is open (Thursday), thus increasing staff costs with cold calls that don’t result with a card.

    (6) County of Mendocino is the only website to have the following delaying obstructionist procedure description, as part of the MMIC Application Packet Cover Sheet available as a County website download at http://www.co.mendocino.ca.us/hhsa/chs/mmic.htm. In part:

    (page 1 of 2.)

    Applications are accepted by appointment only. Please call (707) 472-2784 to schedule an appointment. We return calls from a blocked number. Failure to answer the phone, lack of an answering machine or voicemail may delay contact.
    No walk-ins will be seen.

    06/09
    (page 2 of 2.)
    Mendocino County
    MEDICAL MARIJUANA IDENTIFICATION CARD PROGRAM
    Dear Applicant,
    When your application is complete, please call the MMIC Office at (707) 472-2784 to leave a message to schedule an appointment.
    (Page 2 of 3.)

    (7) State law requires an MMIC applicant to provide the following information, which would be reimbursable efforts by the Mendocino MMIC program. Collection of phone numbers for an appointment call back bureaucratic juggernaut is not authorized nor expenses recoverable. A phone number requirement is not listed to indicate residency. Here, is the legal statute of most information an applicant is required to divulge:

    11362.715. (a) A person who seeks an identification card shall pay the fee, as provided in Section 11362.755, and provide all of the following to the county health department or the county’s designee on a form developed and provided by the department:
    (1) The name of the person, and proof of his or her residency within the county.
    (2) Written documentation by the attending physician in the person’ s medical records stating that the person has been diagnosed with a serious medical condition and that the medical use of marijuana is appropriate.
    (3) The name, office address, office telephone number, and California medical license number of the person’s attending physician.
    (4) The name and the duties of the primary caregiver.
    (5) A government-issued photo identification card of the person and of the designated primary caregiver, if any. If the applicant is a person under 18 years of age, a certified copy of a birth certificate

    (8) County of Mendocino MMIC program mandates and responsibilities that are reimbursable are further defined in 11362.71(b). No funding is provided for program mismanagement and cost overruns, nor procedural obstruction to client participation:

    11362.71
    (b) Every county health department, or the county’s designee, shall do all of the following:
    (1) Provide applications upon request to individuals seeking to join the identification card program.
    (2) Receive and process completed applications in accordance with Section 11362.72.
    (3) Maintain records of identification card programs.
    (4) Utilize protocols developed by the department pursuant to paragraph
    (1) of subdivision (d).
    (5) Issue identification cards developed by the department to approved applicants and designated primary caregivers.

    (c) The county board of supervisors may designate another health-related governmental or nongovernmental entity or organization to perform the functions described in subdivision (b), except for an entity or organization that cultivates or distributes marijuana.

    In conclusion, I recommend that the CAO put the MMIC fee increase on hold. I also suggest to micro-manage the MMIC appointment policy, without requirement of a call back number nor current prolonged voicemail tag. Perhaps allow walk-in appointments on space available basis, while posting office hours. Ask the Auditor to report back next year with budget cost savings recoverable under state law. Please don’t step on MMIC!
    Sincerely, (attached: selected downloads from:
    http://www.co.mendocino.ca.us/hhsa/chs/mmic.htm)
    Eric Sunswheat, Potter Valley,

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