History

Background of HumCPR

. . . . Or How Did We Get Here?

The Humboldt County General Plan Update

The Proposed Amended TPZ Ordinance

What follows is an attempt to document the chronological progression of the Humboldt County General Plan Update process related to Forest Resources. This documentation is provided to provide a layman’s understanding of the context surrounding the 45-day “emergency” building permit moratorium for lands zoned Timberland Production Zone (TPZ) enacted by the Board of Supervisors on October 9, 2007, and the amended TPZ ordinance proposed by the Humboldt County Planning Department.

The Planning Department presented an amended TPZ ordinance to the Humboldt County Planning Commission during their November 29, 2007 meeting, with a similar item already included on the Board of Supervisors agenda for their meeting on December 11, 2007. The Planning Department anticipated the Board of Supervisors adopting the amended ordinance during the December 11, 2007 meeting.

This historical perspective is important because it defines the background landscape from which the Planning Department began their most visible manipulation and subversion of the General Plan Update process by misrepresenting a bankruptcy reorganization proposal by Palco, and presenting the seriously flawed amended TPZ ordinance to the Planning Commission and Board of Supervisors for adoption.

It is also important to recognize that the intentions of the Planning Department leadership regarding the General Plan Update (most specifically, the TPZ portions) have been common knowledge to Planning staff for several years. The general discussion and representation of these intentions within the halls of the Department has been as if the intended revisions to TPZ ordinances have already been accomplished.

HumCPR has received copies of correspondence dated 2005, prepared by the Humboldt County Planning Department, advising a potential applicant that a proposed residence MUST BE NECESSARY FOR THE MANAGEMENT OF TIMBER, and two residences MAY be allowed with A CONDITIONAL USE PERMIT if the parcels is 40 acres or larger in size.

The letter stated:

The subject property is zoned Timberland Production Zone (TPZ). A residence necessary for timber production is a compatible use on lands zoned TPZ; two (2) residences may be permitted with a Use Permit if the parcel is 40 acres or greater in size.

The Zoning Code actually says:

Under “PRINCIPALLY PERMITTED USES COMPATIBLE WITH TIMBER PRODUCTION”:

One-family dwelling or manufactured home and normal accessory uses and structures for owner or caretaker subject to the special restrictions of the following subsection, Special Restrictions Regarding Residences.

Section 7.4.1.6 of the existing zoning code defines special restrictions regarding residences:

7.4.1.6 Special Restrictions Regarding Residences.

7.4.1.6.1 The total residential density shall not exceed one (1) dwelling unit per twenty (20) acres. (Former Section INL#314-12(f)(1))

7.4.1.6.2 Parcels smaller than forty (40) acres shall not have second or secondary dwelling units. (Former Section INL#314-12(f)(2))

7.4.1.6.3 Residences and the associated accessory structures and uses shall not exceed two (2) acres per parcel. (Former Section INL#314-12(f)(3))

NOTHING IN THE EXISTING CODE SAYS ANYTHING ABOUT A RESIDENCE BEING “NECESSARY” FOR TIMBER PRODUCTION OR THAT A USE PERMIT IS REQUIRED FOR A SECOND OR SECONDARY DWELLING UNIT. THESE PROVISIONS ARE INTERPRETATIONS THAT THE PLANNING DEPARTMENT HAS MADE ON THEIR OWN, AND REPRESENTED AS EXISTING COUNTY ORDINANCE.

These two provisions (a residence must be “necessary” for timber production, and the requirement for a Use Permit to build a residence within TPZ lands), were the cornerstones of the proposed TPZ amended ordinance that was proposed by the Planning Department in response to the contrived “emergency” of the Palco Reorganization Plan.

Even AFTER further consideration of the proposed TPZ amended ordinance was STOPPED by the Board of Supervisors on December 11, 2007, Planning Department staff still attempted to implement the new provisions of the ordinance – specifically telling at least one applicant that a Conditional Use Permit was required for a Building Permit within lands zoned TPZ. Further details regarding these specific illegal actions of the Planning Department can be provided by HumCPR, upon request.

Although the Planning Department and County Counsel’s handling of the “emergency” moratorium and TPZ ordinance amendment is not HumCPR’s only issue with these Departments, it is the most recent, most widely publicized, most easily documented, and most egregious of the Departments’ long-running history of flagrant violations of the public trust, if not law.

If you are familiar with the General Plan Update process, and do not wish to read our general background and summarized history of the Humboldt County General Plan Update – specifically regarding Forest Resources, and wish to proceed directly to the Palco Plan of Reorganization and the Planning Department’s manipulation of this situation, please skip forward to THE PALCO PLAN OF REORGANIZATION.

Up


The General Plan and Update Process

California law requires that every county adopt and regularly maintain a planning document entitled a General Plan – which includes a periodic re-evaluation of existing conditions, and modifications to the Plan as found appropriate (called Updates). The Plan establishes a general policy framework for future actions (policies or ordinances) regarding planning, growth, and land use within the County. The Humboldt County General Plan Update website includes guidance and definitions as to exactly what constitutes a General Plan. The General Plan Update website is found at: http://co.humboldt.ca.us/gpu/

What is a General Plan?

The General Plan guides the county’s development. It expresses community values and goals, and portrays the community’s vision of the future. In action, the General Plan is used as a road map to that future.

The Plan provides direction for the growth of Humboldt County for the next twenty years. The Plan addresses land use, transportation, natural resources, and other related development topics.

The General Plan is the constitution for all future developments within a city or county.

– California Supreme Court

Why is the Plan being updated?

The General Plan is being updated to reflect changes in land use, resource management, community needs, and community values. The County’s current Framework General Plan was completed in 1984. It has 36 different sections, dating from the 1960’s to the 1990’s. The updated General Plan will unite all of the sections into a more coherent, accessible document. The update offers an opportunity to improve the County’s information base. the new plan will include updated demographic information (e.g. population, growth projections, economic indicators) and modernized mapping.

Why is it important to me?

The General Plan is an expression of the community’s values and its plans for growth. It is up to you to help define those values. Good planning depends on community involvement, and strong communities depend on good planning.

With good, community supported policies, the General Plan will help stimulate economic development, protect our environment, and enhance our quality of life. Lend your support and take part in determining the direction of Humboldt County.

The General Plan document is large and complicated. The regular re-evaluation and revisions to the Plan (called Updates) is a lengthy and complicated process that includes many public meetings, workshops, and study sessions. The General Plan Update process is subject to environmental review in accordance with the California Environmental Quality Act (CEQA). A brief explanation of the General Plan Update process can also be found at the County’s website http://co.humboldt.ca.us/gpu/.

Information regarding CEQA can be found at: http://www.ceres.ca.gov/ceqa/ and http://en.wikipedia.org/wiki/California_Environmental_Quality_Act.

At the conclusion of a General Plan Update process, the entire updated General Plan document is formally adopted by the Board of Supervisors. This is the document which constitutes the guidelines for Staff’s implementation of policy. Existing ordinances and regulations are then typically examined in order to determine whether ordinance amendments are needed in order to reflect the new priorities and policies included within the updated General Plan.

Up


Humboldt County General Plan Update

The Humboldt County General Plan Update (GPU) began over 9 years ago, and intends to look forward 25 years. The current status of the GPU can be found at the following web link: http://co.humboldt.ca.us/gpu/docs/GPUMasterSchedulePhaseV-VIOverview03-09-09.pdf. (a pdf file)

The Humboldt County General Plan is organized into several “Elements”. Each element is defined and discussed at the following web link: http://co.humboldt.ca.us/gpu/overviewElements.aspx.

Planning Staff developed three alternatives for the update of the Forest Resources section. The three alternatives are identified as Plan A, B, & C.

A Plan Alternatives Comparison Chart was developed in July of 2007, to summarize possible provisions to be included in each Alternative Plan. The Chart was used to gather public input regarding preferences of the various policies. A column was provided in the chart to allow the public to indicate their policy preferences by “voting” to Retain, Delete, or Modify each policy, standard or implementation measure. The Plan Alternatives Comparison Chart can be found at :http://co.humboldt.ca.us/gpu/documentsKeyIssuesPlanAlt.aspx.

A simpler document that is very useful in understanding the comparison between selected policies contained in the Plan Alternatives is called the Alternatives Comparison Matrix, and can be found at: https://co.humboldt.ca.us/board/agenda/questys/MG115157/AS115204/AS115205/AI133478/DO138668/BOSAgendaItem.pdf.

During Phase III of the General Plan Update process, Preferred Alternatives are to be developed, based upon recommendations by the Planning Division, and feedback received during community workshops and public hearings, and written comments submitted during Phases I and II of the General Plan Update process. The Planning Staff will prepare Draft documents, which will then be circulated for public comment, and discussed in public meetings with both the Planning Commission and the Board of Supervisors.

Up


County Response to the Palco Plan of Reorganization

On, or about, October 2, 2007, Palco submitted a Chapter 11 Plan of Reorganization to the U.S. Bankruptcy Court for the Southern District of Texas, Corpus Christi Division, showing their proposal for restructuring of their corporate debt. Included in this document was a proposal to develop 21,760 acres of Palco’s industrial timberlands in order to generate an expected $5 million per parcel. The reorganization plan describes the development as 136, 160-acre parcels, with sales to occur in 2012-2015. The proposed project was identified as the Redwood Ranch Development

Allegedly in response to the Palco Plan of Reorganization, the Board of Supervisors’ agenda for the October 9, 2007 Supervisors meeting included an item which was added under an “emergency” designation. Public Agencies are required to conduct their meetings and decision making process in public, except under extenuating exceptions. This requirement is contained in California Government Code, and generally referred to as the Brown Act. Information regarding the Brown Act requirements can be found at: http://ag.ca.gov/publications/2003_Intro_BrownAct.pdf (this is a pdf file).

Agenda items that meet certain criteria as “emergency” items under the Brown Act, can be added to a public meeting agenda without the same public noticing requirements of regular matters. The Humboldt County Counsel’s office made a determination that an “emergency” ordinance was necessary in order to protect the public health, safety, and welfare as a result of the Palco Reorganization Plan. Once justified as an “emergency”, the interim ordinance could be “passed without notice and public hearing”, and would be immediately enacted upon passage, not being required to be posted for 30 day’s prior to enactment, as are regular non-emergency ordinances.

The “emergency” interim ordinance to suspend the entitlement to Building Permits within TPZ zoning was added to the October 9th Board of Supervisors meeting on Monday, October 8th – a legal holiday (Columbus Day). Although perhaps coincidental (however unlikely), the addition of the proposed interim ordinance to the Board agenda on a legal holiday meant that most people would not be aware of the Board’s intentions until the morning of October 9th – the day of the Board meeting. The Board of Supervisors considered the “emergency” ordinance during their morning session, and before the morning was over, the interim ordinance disallowing ALL Building Permits within TPZ parcels was enacted.

The Staff Report for the “emergency” interim zoning ordinance was prepared by Carolyn Ruth, at that time the Deputy County Counsel. The report concluded it was realistic that Palco could develop the Redwood Ranch Development without discretionary review by the County, and without environmental review under CEQA. Further, if the Redwood Ranch Development was “allowed in lands zoned TPZ under existing codes and policies, other large TPZ landowners may also initiate conversion to residential uses, causing additional public health, safety, and welfare issues for the County.”

With less than 4 hours of reasonable notice, the Humboldt County Board of Supervisors had immediately and adversely impacted over 2,700 TPZ landowners within the county, effectively rescinding long-held entitlements on these properties.

For an analysis of what the Palco Reorganization Plan really says, please see the section below entitled WHAT DOES THE PALCO REORGANIZATION PLAN REALLY SAY?.

Subsequent to passage of the interim ordinance, Humboldt County Supervisors and the Planning Department routinely justified the “emergency” interim ordinance by saying the action was required by the Palco Reorganization Plan, and they had to send a “message” to the bankruptcy court in Texas. In addition to passing the “emergency” ordinance, the Board of Supervisors also sent a letter to the bankruptcy court – which ironically, contradicted every argument they had used to justify the passage of the interim ordinance.

The Board of Supervisors letter to the Texas bankruptcy court stated:

"The Humboldt County Board of Supervisors does not believe that this development is feasible. The plan is inconsistent with existing land use plans and policies, and is inconsistent with all of the plans and policies that are currently being reviewed in the County’s General Plan Update (emphasis added)."

IT IS TRUE that the Redwood Ranch Development as proposed in Palco’s Chapter 11 Reorganization Plan is inconsistent with existing land use plans and policies. The proposed project is inconsistent with the current General Plan designation and existing zoning. In addition, conversion of timberland is subject to rules and regulations of the California Department of Forestry and Fire Protection (CDF). As noted below (What Does the Palco Reorganization Plan REALLY Say?) the project would definitely be subject to environmental review by CEQA, and would require major modifications (and likely to be found inconsistent with) existing and binding Habitat Protection Plans.

Up


Subversion of the General Plan Process

The Amended TPZ Ordinance

An ordinance passed under “emergency” provisions is only valid for a period of 45-days. If the jurisdiction wishes to extend the interim ordinance, a duly noticed public hearing must occur before the expiration of the 45-day interim period.

County staff clearly demonstrated their intent to permanently disallow residential Building Permits on TPZ lands without allowing any lapse in the interim ordinance. Staff recommended extension of the interim urgency ordinance during the November 6, 2007 Board of Supervisors meeting.

While fast-tracking an amended TPZ ordinance which effectively implemented the provisions of the interim ordinance, the Planning Department committed their most egregious actions to subvert the General Plan Update process. In a Supplemental Staff Report for the November 29, 2007 Planning Commission meeting, the County Counsel’s Office and Planning Department presented an ordinance for the Commission’s consideration and recommendation to the Board of Supervisors to enact an amended TPZ ordinance.

This Supplemental Staff Report (over 80 pages in length) was presented to the Planning Commission and the general public FIVE MINUTES before the start of the public meeting. The Planning Commission expressed concern about not having adequate time to review the proposed ordinance. The public expressed outrage at the audacity of presenting this major document to the Commission and public with the expectation that the Commission would provide a rubber stamp approval without any time to review or consider the ordinance, in order to allow the Board of Supervisors to consider adopting the ordinance during their December 11, 2007 meeting.

Up


Proposed Ordinance Violates State Environmental Laws

A Supplemental Staff Report was prepared for the Planning Commission meeting of November 29, 2007, which recommended approval of an amended TPZ ordinance.

The Supplemental Staff Report was prepared by Kirk Girard, Planning Director, and as a general policy procedure, would have been reviewed and approved by the County Counsel’s office before being submitted to the Planning Commission. The staff report developed recommendations for a resolution recommending that the Board of Supervisors adopt a resolution to the TPZ Regulations within the Humboldt County Zoning Ordinance.

The proposed Ordinance intended to amend the existing Zoning Ordinance to make the construction of a residence on lands zoned Timber Production Zone (TPZ) subject to a Conditional Use Permit, as opposed to a Principally Permitted use, as is set forth in the current General Plan and Zoning Ordinance, as well as adding additional burdens of required findings including that any residence must be “necessary” for the management of timber resources, among others.

The Ordinance as submitted in the Supplemental Staff Report provided rationale to support Staff’s position that the changes to the Zoning Ordinance were not subject to CEQA environmental review because:

Pursuant to section 15061(b)(3) of the CEQA Guidelines, the Planning Division, as lead agency, has determined that the ordinance addressing conditions required for building permits in lands zoned for timber production (TPZ) is not subject to CEQA because:

The activity is covered by the general rule that CEQA applies only to projects, which have the potential for causing a significant effect on the environment; and
There will not be a direct or foreseeable indirect physical change to the environment due to the ordinance revisions; and
The activity is not a project as defined in Section 15378 of the CEQA Guidelines.

The report and proposed ordinance continues, saying:

Section 15378(a)(1) specifically states: “Project” means the whole of an action, which has a potential for resulting in either a direct physical change to the environment, or a reasonably foreseeable direct physical change in the environment.

This quotation of Section 15378 intentionally deletes language from the applicable state statue which directly negates the position that the ordinance is not subject to CEQA. The entirety of Section 15378(a)(1) reads:

“Project” means the whole of an action, which has a potential for resulting in either a direct physical change to the environment, or a reasonably foreseeable direct physical change in the environment, and this is any of the following (emphasis added):
(1) An activity directly undertaken by any public agency including but not limited to public works construction and related activities clearing or grading of land, improvement to existing public structures, enactment and amending of zoning ordinances (emphasis added), and amendment of local General Plans or elements thereof pursuant to Government Code Sections 65100-65700.

It is clear, even to a lay person, that the Staff Report conclusions provided an opinion that is not supported by law and that these deceptions were meant to intentionally mislead the Planning Commission, Board of Supervisors, and general public in order to achieve the ends that the Planning Division sought (immediate passage and enactment of the amended ordinance).

During the Board of Supervisors meeting of December 11th, 2007, Supervisor Geist moved to immediately stop consideration of the proposed TPZ ordinance, acknowledging that she had completed independent investigation into these matters, and was convinced that there was no realistic possibility that Redwood Ranch could come to fruition. Supervisor Geist stated she felt that the Board of Supervisors, Planning Commission, and public had been misled, and that adoption of the proposed TPZ ordinance had been accelerated under the guise of a “Trojan Horse” of the imminent threat of the Redwood Ranch development proposal by Palco.

Up


What Does the PALCO Reorganization Plan Really Say?

The reorganization plan includes descriptions or definitions of the Redwood Ranch Development in several places, including the Uniform Glossary of Defined Terms for Plan Documents, page 10. http://asje.org/documents/glossary.pdf. (this is a pdf file)

and the Exhibit D, Pro Forma Financial Projections, page 9 http://asje.org/documents/ExhibitD-proformas.pdf. (this is a pdf file)

The Exhibit D, Pro Forma Financial Projections includes the following description of Redwood Ranch Development (emphasis added):

iii. Redwood Ranch Development – The Projections assume sales during 2012 though 2015, of approximately 22,000 acres of timberlands pursuant to a development strategy prepared with the assistance of Greenfield. Consistent with similar redevelopments implemented throughout the United States, the Debtors intend to commence the process of the design, development and marketing of the approximately 22,000 acres of timberlands (subject to, among other things, regulatory approvals) into one hundred and thirty-six (136) one hundred and sixty (160) acre ranches for sale to the general public. Proceeds, net of developer commissions, from the sale of the ranches are expected to be approximately $680.0 million. The Projections also include the related development, construction, and marketing costs in the aggregate amount of $130.0 million. The estimated proceeds from the Redwood Ranch Development project are based upon detailed appraisals performed by Greenfield.

The most detailed description of the proposed Redwood Ranch can be found in another document entitled Exhibit D, this one being “Exhibit D – Disclosure Statement in Support of the Joint Plan of Reorganization for the Debtors Under Chapter 11 of the United States Bankruptcy Code”, which is a part of the Chapter 11 bankruptcy filing by Palco. This document can be found at: http://co.humboldt.ca.us/board/agenda/questys/MG101880/AS101926/AI108199/DO108243/BOSAgendaItem.pdf.

A portion of this document states:

In short, MAXXAM acquires undeveloped land, subdivides the land, builds the infrastructure required to create resort and master-planned communities, including utilities, roads, golf courses, and tennis courts, and sells the land to developers and other third parties at a premium. MAXXAM’s real estate business model bas been profitable and is similar to the strategy that will be used to develop the Redwood Ranch Development.

On pages 5 and 6 of this Exhibit D, the document specifically states the Development Project will be pursued in compliance with all required statutory and regulatory laws, and specifically lists more than a dozen agencies, regulations, laws, or orders; including CEQA, NEPA, TPA, the Subdivision Map Act, among others.

These descriptions are critical, as they acknowledge that the development is subject to regulatory approvals, and it uses key words like “design”, “development”, and “subdivide” to describe how approximately 22,000 acres will be transformed “into” one hundred and thirty-six (136) one hundred sixty (160) acre ranches. This clearly implies that 136, 160-acre parcels DO NOT EXIST AT THIS TIME, and must be created.

The use of these key words in describing the Redwood Ranch Development are crucial because they represent terms of art used in the Planning and Land Development professions, and in California Code Sections that clearly indicate the Redwood Ranch Development Project COULD NEVER PROCEED TO FRUITION WITHOUT DISCRETIONARY PERMITTING, PROCESSING AND FULL ENVIRONMENTAL REVIEW AND DOCUMENTATION.

In preparing their staff report, the Planning Department and the County Counsel’s office misrepresented these facts to the Board of Supervisors, Planning Commission, and the general public, professing a contrived “emergency”, in order to rationalize implementation of the interim moratorium immediately suspending issuance of building permits within TPZ zoned lands.

Unfortunately, this is not the only example of the Humboldt County Planning Department misleading and misinforming the public. The Department has consistently demonstrated a willingness to misrepresent existing county ordinances in order to provide THEIR INTERPRETATION of what the ordinances SHOULD say, rather than what the ordinance DO SAY.

Specifically, regarding provisions of the existing TPZ ordinance, we have documented several instances of staff attempting to implement the proposed ordinance THAT WAS REJECTED BY THE PLANNING COMMISSION AND BOARD OF SUPERVISORS DURING MEETINGS OF NOVEMBER 29TH AND DECEMBER 11TH. These actions have been documented as long ago as 2005 – more than TWO YEARS before the Planning Department unveiled the proposed “new” ordinance to the public.

In a letter to an applicant dated November, 2005, the Planning Department states (emphasis added):

The subject property is zoned Timberland Production Zone (TPZ). A residence necessary for timber production is a compatible use on lands zoned TPZ; two (2) residences may be permitted with a Use Permit if the parcel is 40 acres or greater in size.

The Zoning Code actually says:
Under PRINCIPALLY PERMITTED USES COMPATIBLE WITH TIMBER PRODUCTION:

One-family dwelling or manufactured home and normal accessory uses and structures for owner or caretaker subject to the special restrictions of the following subsection, Special Restrictions Regarding Residences.

Section 7.4.1.6 defines special restrictions regarding residences:

7.4.1.6 Special Restrictions Regarding Residences.

7.4.1.6.1 The total residential density shall not exceed one (1) dwelling unit per twenty (20) acres. (Former Section INL#314-12(f)(1))

7.4.1.6.2 Parcels smaller than forty (40) acres shall not have second or secondary dwelling units. (Former Section INL#314-12(f)(2))

7.4.1.6.3 Residences and the associated accessory structures and uses shall not exceed two (2) acres per parcel. (Former Section INL#314-12(f)(3))

NOTHING IN THE EXISTING CODE SAYS ANYTHING ABOUT A RESIDENCE BEING “NECESSARY” FOR TIMBER PRODUCTION OR THAT A USE PERMIT IS REQUIRED FOR A SECOND OR SECONDARY DWELLING UNIT.

In January, 2008, in response to a residential building permit within TPZ – more than a MONTH AFTER the Board of Supervisors directed all consideration of the new TPZ ordinance to immediately STOP, Planning staff informed an applicant that a CONDITIONAL USE PERMIT WAS REQUIRED for a residential building permit within lands zoned TPZ.

Up


Humboldt Coalition for Property Rights (HumCPR) Stand

It is HumCPR’s uncompromising position that staff of the Humboldt County Planning Department and the County Counsel, MUST realize their function is to ASSIST the general public to meet the requirements of the EXISTING Humboldt County Codes and Regulations. THE DEPARTMENT IS ACTING IRRESPONSIBLY AND ILLEGALLY by intentionally misrepresenting existing County codes and regulations, misinforming applicants of the provisions of these existing codes and regulations, and by attempting to implement ANY codes and regulations that HAVE NOT BEEN APPROVED AND ADOPTED BY THE HUMBOLDT COUNTY BOARD OF SUPERVISORS.

Intentional misrepresentation of facts, existing county codes, or existing state regulations in order to achieve their desired outcome regarding development proposals or adoption of new county ordinances, is a blatant abuse of their positions as public service employees. These actions may well constitute malfeasance, misfeasance, or nonfeasence, and will not be tolerated by the public.

It is our fervent goal that the Humboldt County Board of Supervisor recognizes THEIR ultimate responsibility for these actions, and clearly and unequivocally communicates through word and action that subterfuge, deception, and obstructionism by county staff will not be tolerated in any form. To this end, HumCPR pledges the entirety of its energies and resources.

Up