Last November a local complaining about unreasonable noise at all hours of the night from an “obnoxious neighbor” near a parcel south of Boonville asked us for some background on “noise abatement” in Mendocino County and “what is in the Mendocino County ordinances about noise. Venues, private parcels, agriculture (wind machines), etc.”
Here is our response:
As you must know I sued my (former) neighbors (we’ve since moved) for their gross violation of what I first thought was a County noise ordinance for the window rattling noise generated by their vineyard wind fans back in 2014 when the infernal machines were first cranked up in Anderson Valley. The noise started about midnight and continued shaking the windows, rattling the walls, and making sleep nearly impossible while my brother was bed-ridden dying of end-stage prostate cancer. I also sued Mendocino County for their failure to address noise in the permits for wind machines. Several local wine people poo-pooed the problem, saying I was exaggerating. I invited them to visit our house at midnight while the fans were on and explain to my distraught brother that the noise was minor. No one came over.
I sued after my brother died. All I asked was that the County improve their permitting process and that the neighbors do something to mitigate the noise.
Along the way I discovered that what people thought was Mendo’s “noise ordinance,” is only a “zoning ordinance” that prescribes noise level limits for certain types of parcels and usages during the permitting process. The distinction is important because the general public can’t enforce a zoning ordinance, and the County Planning Department does little more then check a box on the permit form.
The zoning ordinance is simply a planning tool (on paper) to determine if a proposed use of a property will create too much noise for the zoning involved. And even at that, I’ve never heard of it being applied to a permit application.
Then there’s the question of determining if a decibel level (as theoretically listed in the zoning ordinance) has been exceeded and by how much and at what time. I called four professional engineering outfits during my lawsuit. Three of them wouldn’t even return my call. The fourth, LaCo Associates in Ukiah, said they wouldn’t discuss it because they had contracts with the County — a bogus excuse, of course, because they didn’t want to get involved with the wine industry or the County (which was a defendant in my original suit along with the neighbors).
I was willing to walk around my house with a recorder and a decibel meter while all five fans were rattling our windows at midnight to 8am while my brother was dying of cancer. But my lawyer said that anything like that would not be allowable in court.
Next is what (former) resident deputy Craig Walker told me about noise nuisances: You have to prove that the noise is “malicious” for the cops to even consider taking formal action under the “disturbing the peace” section of the penal code.
Remember when the early hippie fests at the fairgrounds went on loud and long into the night disturbing the peace of those neighbors around Lambert Lane? That terrible situation was only improved when the neighbors cooked up a petition and got the organizers to put some rules down for their late night acts. The County wasn’t involved. They don’t care, never have.
After I filed my original lawsuit, which basically demanded that the County impose permit conditions on windfan installations along the lines that the local wine growers association itself said was already being done. At the time, in the wake of the initial outcry about the noise, the AV Winegrowers own website claimed that Mendocino was “the only county in the state which required permits for wind-fans and that those permits addressed noise, placement and need.”
An outright lie. Pure propaganda. The permits only addressed the concrete pad and the electrical wiring.
In response, the County filed a motion saying that a request to require such permit conditions would have so serious an impact on the wine industry that I would have to post a $1 million bond to even allow the motion to be submitted to the court. Unbelievably, the County, not the potentially impacted wine industry, filed this motion. The County was running interference for the wine industry against what the wine industry falsely said was being done! The judge (Richard Henderson, an obvious friend of the wine industry) never ruled on the County’s application.)
In my motion I also pointed out that the wine industry could not claim a “right to farm” nuisance exemption because the windfans were not a pre-existing agricultural practice in Anderson Valley. The County disagreed saying, preposterously, that because windfans had been used for pears in the Ukiah Valley in the 50s, that constituted “a pre-existing agriculture use”!
Realizing that the County didn’t give a rat’s ass about the problem, and bleeding money for lawyer hours, I removed the County from my lawsuit. I couldn’t afford to push that angle any more.
I also eventually dropped my suit when two of my neighbors offered to upgrade their fans to three-bladed models which are significantly less noisy, less rattling. The third neighbor had fans from a different (and much fancier) manufacturer which didn’t offer a three bladed model. But they at least offered to pay for new soundproof windows on our house.
Given this history, it’s clear that official Mendocino County has no interest in addressing obnoxious noise from any source even when it’s the neighboring boombox variety, much less the much more widespread and much worse noise from vineyard wind machines.
Basically, the (legal) options are:
• Call 9-1-1 and see if a cop will make a courtesy call on the objectionable neighbor. If the cops show up (in the wee hours) and warn the neighbor to keep it down and then after that the noise persists you might have a prima facie case for a “malicious” violation of disturbing the peace. (A long shot, to be sure.) But we’ve never heard of a neighbor in the unincorporated area being charged with disturbing the peace for a persistent noise violation, be it “music,” pot growers’ diesel generators, or vineyard wind machines.
• File a noise complaint with code enforcement. If you’re lucky they might send someone out to check it out. But getting someone from code enforcement to show up in the middle of the night while the noise is being made is unlikely. (The County did send a code enforcement guy, during the day when the fans were off, but that was the last we heard of him or our complaint.)
Upshot: In Mendo for all practical purposes there’s no noise ordinance and no way to enforce one even if anybody in authority wanted to.
I’m still smarting from my awful (and costly) experience with the County which not only resisted any reform at all, but even did the industry’s dirty work. To add salt to the wounds, no locals came to my aide or contributed to my suit or (publicly) pressured our awful Supervisor Dan Hamburg to at least push for a better permit process. A couple of locals were willing to politely hold my coat as I pressed forward until I couldn’t afford to continue.
As a result, Mendocino residents to this day have no legal recourse when a neighbor makes outrageous noise keeping them from an ordinary night’s sleep.
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OTHER NOTES
Speaking to the Redwood Valley Municipal Advisory Group in November about the Groundwater Sustainability Agency that the State forced on Mendo a few years ago during one of our recent drought periods, Supervisor Glenn McGourty blurted out this revealing remark: “If we can show that the groundwater basin is being recharged year to year, it should result in less monitoring from the State.”
Of course McGourty and his wine pals (like Al White, for example, fellow member of the Ukiah Valley Ground Water Sustainability Council) resent any pesky water impositions from the state, just like they resented the state’s requirement a few years ago to develop their own plans to coordinate frost water pumping to avoid fish strandings. In that one they even sued and won in the local wine-drenched Superior Court but of course they lost on appeal. Turns out having to prepare their own plans wasn’t such a burden after all.
We’ve noted before how the Groundwater Sustainability Agency has no interest in sustaining anything other than their own blank draw on whatever water is available for their grapes. That’s why the wine-dominated agency hasn’t done anything but “talk and pump.” They do spend a lot of time and state grant money on meetings, and studies, and consultants and water modeling, and reports… though.
But McGourty’s blurt to the Redwood Valley MAC makes it as clear as anyone might want: All those studies and meetings and models are nothing more than a transparent attempt to get the state off their back so that they can go back to pumping as usual.
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ERIC SUNSWHEAT, commenting on the AVA’s website last week mentioned in passing:
“While pumping gas for his car in Ukiah, former County supervisor David Colfax said, once years out of office, he was never asked by County officials, as to his experience or advice on any matter. Expertise lost, although some may have a differing opinion.”
“Expertise”? If by expertise Sunswheat means how to get yourself a pay raise and then hang on to it while you impose pay cuts on County employees? Yes, considerable expertise. We’re not aware of any other “expertise” former Supervisor Colfax might bring to the table — “although some may have a differing opinion…”
But carping aside, the comment brings up an interesting phenomenon regarding former county elected officials. With the occasional exceptions of John Pinches and John McCowen (and going back aways Norman de Vall), we’re not aware of a single Supervisor who has engaged in public discussion on any county matters after leaving office — even though they were deeply involved in them for at least four years or more.
Just in this century we can think of several names that we’ve never heard from again: Hal Wagenet, Tom Lucier, Carre Brown, Kendall Smith, Dan Hamburg, Michael Delbar, Patty Campbell, Richard Shoemaker, Jim Wattenburger Charles Peterson.
For one prominent recent example, not one former Supervisor commented on the controversial and wrong-headed consolidation of the Treasurer-Tax Collector and Auditor-Controller. Nor did any of them comment on the crazy pot permitting policy at the time it was being formulated.
Pinches and McCowen have commented on a few subjects after leaving office (water storage projects and additional public debt, respectively). Former Supervisor Norman de Vall commented on a few subjects as well years ago. Former Supervisor Jim Mayfield even made a few remarks at couple of board meetings. Like the rest of the public, they were all totally ignored.
It’s a two-way street. Colfax’s complaint about not being contacted is contradicted by his silence on County matters since leaving office with his nice pension. If he were keeping up on things he’d comment; he certainly wasn’t reticent as a Supervisor. So if he’s not paying attention and commenting, why would the County or current Supervisors be interested in his “expertise” or experience?
We’d love to hear from any of these alleged public servants on any subject. They shouldn’t need someone to call on them. But like past boards, this current board hasn’t expressed much interest in any public input from anyone, anyway. So why should they waste their breath?
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ARE THERE 100 “MARGINAL HYPOCHONDRIACS” working for the County?
We can’t let the year go by without commenting on the exchange between Supervisors Dan Gjerde and John Haschak at the last Board meeting of 2022. During a discussion of revenue re-allocation options, after agreeing with some of the other re-allocations, Gjerde suggested a two-tier approach, “We need to work with our healthcare provider to devise a health plan that provides 99% of county employees great health care, but doesn't deeply subsidize these users, these marginal hypochondriacs, from blowing up the plan. After we do that we offer the employees a second cheaper plan because we know that over half of our county employees of the 1000 enrolled in the plan, over half are single employees who don't have a family on the plan, they are just a single employee, and they are paying a bigger share of the cost of the plan compared to employees with families or a spouse on the plan.”
Haschak replied: “I respect Supervisor Gjerde’s comments. But when you start saying most of the costs of the health plan are due to 100 people who are “marginal hypochondriacs…” As a cancer survivor, I really take offense at that. We don't know these people’s situations. We don't know why they are going to the hospital. But when I was in the hospital it wasn't because I was marginally hypochondriac. So I would like you to think about those comments because people who are in medical need really don't need to be disrespected because they have high costs.”
WE SUSPECT that behind this exchange was a suspicion that during covid people were quicker to go to the hospital with flu-like symptoms than they were before covid. Calling them “marginal hypochondriacs” might be a bit unfair, but during the height of the pandemic the fear of the disease probably did have people on high alert for any of the range of covid symptoms. Before they jump to a revised or two-tier system, they should examine the claims on the County’s health plan to determine the extent of the “covid effect” on the County’s self-insured plan that is now said to be some $3.6 million in the red.
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