A Septic Story
by Gene Herr, June 30, 2010
There are three chapters to this story: Subdivision of Albion Head; Piecemeal Development of the Mendocino Outback; Official Waste with Over, Under, and Non-regulation from Characteristic Supervisory Dither and Constipation.
Guarding the southern shore of the mouth of the Albion River is a grassy rounded hill, pretty much in its native state and unmarred by structures. In November of 2008, present owner Carol Smith of “Oak Grove Enterprises, Inc. Representing B&C Smith Family Trust, Big River Partners, LLC, & Mendocino for Economic Growth,” re-filed an application for a Boundary Line Adjustment to reconfigure her one huge parcel and three tiny parcels into one big parcel and three good-sized parcels to enable her to effectively subdivide the headlands.
“Re-filed” because the case dates back to 1988 when the County approved (despite Coastal Commission’s opposition) a rezone of the hill to allow a future split into two big parcels. In 1995 the owner got “Certificates of Compliance” from the County for three teeny lots adjacent to the huge parcel. This recognized the present-day validity of the small, vacant “paper” or “loggers’” lots created by a 1906 subdivision of “South Albion.” Like many of the speculative land schemes of that era, the sub-division had established a gaggle of sub-standard potential but never-developed lots, and in those long-ago times there was no requirement for basic infrastructure to support the subdivision. (In recent years the County has granted, some say, close to 20,000 of these certificates, making un-regulated subdivision and development of large areas of Mendocino forest and rangeland a distinct possibility.)
Ms. Smith applied for her boundary line adjustment in 1998 to make the little lots bigger. She revised her application in 2004 to address the “buildability” of the small lots, and again in 2006 to provide for a community water system and off-site septic system to serve a proposed four parcels.
The project, eleven years in the making, was approved last spring by the Coastal Administrator (then planning chief Ray Hall) who agreed that Carol Smith had finally satisfied all the requirements for zoning, set-backs, habitat protection of various rare plants, animals, and wetland areas, suitable location of house sites and utilities to avoid visual impact, proof of adequate water and location for an approved septic system to serve all parcels, and that no traffic impact would be created to adversely affect the required level of service of the state and local roads.
The development has been vigorously opposed by the neighbors of the Albion Residents’ Association, the Mendocino Land Trust, and the Sierra Club. Reasons for opposition include the refusal of the owner to grant an easement for the coastal trail access stipulated in the Local Coastal Plan (and claimed by neighbors as a historic local use), the visual impact of development of such an important geographical feature, and the likely precedent for similar development of some 15 other near-by certificates of compliance parcels (also Smith property owned by “Big River Partners”), and general non-compliance with the requirements of the Coastal Act.
In July of last year the neighboring Albion Residents appealed Hall’s approval to the Supes who uncharacteristically reversed the decision and denied the project, finding It NOT consistent with the Coastal Act, the Local Coastal Plan, the zoning requirements, and also finding that it would indeed have significant adverse impacts to the environment, and it did NOT provide for the orderly development of the property or the long term protection of the Coast. That’s the end of the first chapter for now. But as we all know, rarely is any decision in Mendocino County final.
Shortly after, Board of Supervisors Chair Carre Brown requested a study of the Policy Guidelines of the Department of Environmental Health regarding Septic Easements. Much of the discussion of the Albion Head case dealt with whether boundaries may be adjusted to allow an off-site septic system for the newly created parcels which would otherwise not meet criteria for development. Brown says she brought the issue forward because she had found that Environmental Health revised its “Septic Guidelines” in January of 2009 without benefit of either the approval of the Supervisors, or any public notice at all, and the action resulted in major damage to other land-owners caught mid-stream in their permitting process, and it made her mad. Others say there was no revision, simply a compilation of existing regulations from various places in the County Code.
These “Guidelines” are not just technical standards. They are in effect policy overrides which leave the approval of off-site septic systems up to the “preference” of the Department of Environmental Health. They are a staff effort to deal with the failure of Supervisors to regulate the expanded use of boundary line adjustments. With the thousands of approved Certificate of Compliance parcels, staff maintains developers increasingly attempt an end-run around planning rules, in effect sub-dividing without basic infrastructure requirements such as proof of water, septic capacity, and documented access, not to mention land use, density and set back requirements of current zoning.
The supervisors’ Standing Committee for Health and Human Services reviewed the drafts for three months, and could not decide the issue. Developers thought it too restrictive, environmentalists and planners thought it not restrictive enough. In March of this year the Supes took action out of the Standing Committee (where meetings are required to be noticed and official record taken and retained) and bumped the drafts into an Ad Hoc committee (that requires none of the above, although Brown had meetings noticed) in order to enable the back-room tweaking that might lead to acceptance,.
At the May Ad Hoc meeting with Chair Brown, Supervisor Colfax, and planning, environmental health and legal staff in attendance (public allowed, but no minutes recorded) yet another draft was proposed. Representatives of the Mendocino Employers’ Council and the Builders Exchange provided those present with a Googlesque map of the County which they claimed showed the meager fraction of land available for development (a thin strip along the Coast and another along the Russian River) in stark contrast to the vast areas of forest and range land temptingly off limits. They discussed the present economic crisis, the unemployment rate in Mendocino County, the absence of opportunity for economic growth due to the uncertainty of ever-changing and incomplete regulations. (A soto voce “these are the guys who want to pave the whole County” was heard from one corner of the room). The Employers’ Council asked for clearly stated regulations which would allow development without endless fights over required standards. This request echoes the recent $4,000 advice of economic development consultant Wayne Schell [muchly derided by Mark Scaramella, in Wayne’s World, AVA May 26, 2010] who cited absence of critical long-range planning documents as evidence of the County’s “unfriendly attitude” toward business and therefore toward economic progress.
Owner developer Carol Smith said that it was high time the County finished the required and long overdue update and re-certification of the Local Coastal Plan, and that she had complied with all existing regulations and the County could not now change the rules. The Albion folks said that the new Guidelines seemed to be on the right track for providing clarity. Your reporter pointed out that the Guidelines call for project compliance with the General Plan and the zoning and land division codes but these last two have yet to be revised to reflect the changed requirements of the new General Plan, so there is actually no clarity at all as to which rules are in effect. Supervisor Colfax asked that we not debate these “cosmic issues” and restrict discussion to the actual draft, which he and Chair Brown then approved for referral to the Board.
On the agenda for last Tuesday, the issue was suddenly pulled at the request of County Counsel Jeanine Nadel, in response to Carol Smith’s immediate double-barreled legal challenges (charging a host of violations of the US Constitution, the Subdivision Map Act, the Coastal Act, CEQA, the State Housing Element, Mendocino General Plan, Mendocino Local Coastal Plan, and Mendocino Zoning Code).
That’s the end of the second chapter, which also is far from final — the “Guidelines” will be heard again after due legal review some time in August — a year after the reversal of Carol Smith’s project by the Supervisors and a year after the certification of the new General Plan.
And on to Chapter 3: Official Waste with Over, Under, and Non-regulation from Characteristic Supervisory Dither and Constipation.
We have just spent over $3.5 million and five years on long range planning. The “certified” General Plan requires implementation through a supporting County Code — primarily chapters dealing with zoning and land division — but others too, such as Title 16, water and sewer, and Title 10 A, agriculture.
These need to be conformed with the General Plan for compliance. Large portions of the County are excluded from the General Plan (the Coastal Zone) or require extensive overlay planning (the Ukiah Valley, the town of Mendocino). Supervisors say, “The County is broke. This can’t be done.” But they have just spent ten months of expensive staff time on this subsidiary septic issue. Former Supervisor Norman deVall had a suggestion: just stop spending planning money elsewhere. Declare a moratorium on all planning actions except completion of the plans and codes, and get on with it. ¥¥