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Mill Valley’s dysfunctional government rolls on - the Fire Ordinance Vegetation Management Plan
The City of Mill Valley seems to have lost its way, these days. Although a couple of councilmembers have made efforts to right the ship, this ocean liner remains off course. From the bizarre statements made by Councilmember McEntee that Black Lives Matter “is not of immediate local importance,” to the City’s chronic avoidance of environmental protection laws, and to my own recent experience where the City Manager threatened me, personally, because I sent an email to City Staff (asking a simple yes or no question) that did not meet his strict definition of proper etiquette, the City government's culture is consistently lost in the sauce.
The case of Mill Valley Residents for the Protection of Wildlife v City of Mill Valley is the latest example.
Let me say from the outset that the only heroes in the city's residential Vegetation Management Ordinance saga are the Mill Valley Residents for the Protection of Wildlife, the group who initiated legal action to stop the City from adopting its draconian “Fire Ordinance Vegetation Management Plan” in the fall of 2019. Everything else about the ordinance and its history is troubling.
The Challenge
The Petitioner’s Writ challenged the City on the grounds that it failed to adequately assess potentially significant environmental impacts and failed to proceed “in the manner required by law and as supported by substantial evidence,” under the California Environmental Quality Act (CEQA).
Click here to read the original Petition for Writ.
For more than a decade, the City of Mill Valley has made false claims of categorical exemption from CEQA assessment with the clear intention of avoiding their responsibilities to protect residents and our environment. It has been their default position for every ordinance, decision, and project proposed. This pattern of abuse has continued even in the face of being informed, repeatedly, about their attempts to limit public hearings and suppress community input.
Let me also say from the outset that in my opinion, the worst actor in all this is Mill Valley City Attorney, Greg Stepanicich of Richards, Watson & Gershon, and Mill Valley's former City Manager, Jim McCann, and all those who continue to employ this law firm. Apparently, Richards, Watson & Gershon has never seen a CEQA regulation they didn’t want to avoid.
Finally, as a preface to discussing this case and its outcome, I ask readers to consider that attempting to deal with wildfires by trying to micro-manage plants, trees, and other vegetation at the expense of habitat, biodiversity, and flora and fauna is hopelessly doomed to fail (unless we intend to cut down every living thing and pave paradise). The fundamental problem is that we are approaching the wildfire problem from the wrong end.
Nature is not the problem. We are the problem!
What needs to be equally addressed are the homes and structures we are building in the Wildlands Urban Interface.
Certainly, managing undergrowth and addressing highly volatile situations is desirable, but as long as cities like Mill Valley continue to enforce myopic design guidelines that result in building homes using 100-year-old construction methods and materials (e.g., shake shingles, wood decks, etc.) and deny proposals to build anything except "Craftsman" or "Tudor" or "Spanish" styles--instead of allowing modern architecture with clean lines and state of the art fire-resistant materials--this exercise will result in the tragic decimation of our natural environment.
We don't need to "harden" our landscapes so much as we need to harden our homes.
The Case
The case revolved around the fact that the City, in its typical knee-jerk fashion, over-reacted to wildfire dangers by declaring that, among other things, residents pretty much had to cut down, clear out, or limb up every living thing within 10 feet of property lines and 30 feet of their homes and other structures and install “hardscape” (concrete or gravel) within several feet of all homes and other structures.
The ordinance was devoid of any scientific data or expertise and contained no legally recognized considerations (i.e., "evidence-based") for environmental impacts, erosion control, soils health, hillside stabilization, water runoff or impacts on streams, organic biodiversity, wildlife habitat, rare and endangered species, or even other alternative fire suppression strategies, and raised questions about violations of the Endangered Species Act and the Clean Water Act, among other things.
All this in a city that prides itself on being a natural wonderland.
As argued by Robert Goodman of Rogers Joseph O’Donnell, legal counsel for Mill Valley Residents for the Protection of Wildlife (MVRPW),
“The Project will require the removal of significant vegetation, affecting no less than 5,000 residential structures, and critical habitat for numerous threatened and endangered species. As is evident from its unique and beautiful topography, Mill Valley contains critical vegetative habitat for numerous threatened and endangered species including, the California red-legged frog, steelhead and Coho salmon, the California tiger salamander and the Northern spotted owl, in addition to the California giant salamander which is classified as a “California Species of Concern” and “near threatened.”
“The Project will eradicate a significant amount of the City’s vegetative landscape thereby causing an overwhelming direct physical change in the entire environment encompassed by the Proposed Ordinance…
“The potential effects on the environment and threatened and endangered species will undoubtedly be felt even outside of the Project area… as these threatened and endangered species migrate, nest and reproduce in the surrounding County lands and waterways adjacent to the City limits in addition to within the City limits targeted by the Project.
“The Project will result in significant removal of vegetation which will cause dangerous erosion and flooding risks.” And “The Project will also result in the unnecessary destruction of California’s native plant heritage, diminishment of water quality, loss of cultural resources and habitat for wildlife, and loss of hillside stability for the purpose of wildfire vegetation management.”
The Settlement
After an attempt by the City to have the case dismissed on a technicality, the parties chose to settle out of court. On March 4, 2021, the City Manager signed a "Settlement Agreement and Release." Interested parties would be advised to review this Agreement and its attachment, Exhibit A, carefully.
Also please note that the City will be holding a final hearing on this matter on April 16th, at which time the public needs to voice its concerns and submit comments.
The Settlement Agreement stipulates the following:
- City Hearing on Revised Ordinance: The City agrees that it shall notice and hold a public hearing to consider amendments to Ordinance No. 1312 as shown in Exhibit A to this Agreement (“Revised Ordinance”). The City cannot guarantee any general or particular outcome of the hearing which is legislative in nature and within the discretion of the City Council, but agrees that City staff’s recommendation shall be to support the Revised Ordinance. Nothing herein shall commit the City Council to any specific discretionary decision or prohibit the City Council from amending the City’s Fire Code in the future. The City’s hearing on the Revised Ordinance shall occur prior to MVRPW dismissing the Action with prejudice.
- Notice of Further Amendment: The City agrees that it will provide MVRPW with at least 60 (sixty) days advance notice of any proposed amendment to the Revised Ordinance that would (1) categorically require removal of well-maintained historical and ornamental plantings of Combustible Vegetation (Section 4907.2(1)) or (2) categorically require removal of well- maintained historical and ornamental vegetation identified in Section 4907.2(2). Further, the City agrees that it will provide MVRPW with at least 60 (sixty) days advance notice of any proposed amendment to the appeal process established in the Revised Ordinance. Notices shall be provided in accordance with Section 20 of this Agreement. This notice requirement shall extend through December 31, 2026.
- No Adverse Action Or Opposition to Revised Ordinance: Provided that the City Council adopts the Revised Ordinance, MVRPW agrees not to challenge the Revised Ordinance. MVRPW further agrees not to authorize or fund litigation by any of its members, including members in their individual capacity(ies), challenging the Revised Ordinance. The prohibitions set forth in this Section 3 shall apply to MVRPW whether it acts independently or in concert with any persons, entities, or associations, whether under their own name or some other name.
- Fees and Costs: Provided that the City Council adopts the Revised Ordinance or an ordinance that is substantially similar to the Revised Ordinance, the City shall reimburse MVRPW for its incurred and reasonable attorneys’ fees and costs related to the Action in the amount of $200,000. The City shall pay this amount to MVRPW within ten (10) business days following the City’s adoption of the Revised Ordinance. Payment shall be made by the City to MVRPW through its attorneys of record as follows, either, at the City’s election, by wire transfer or in a check payable to “Rogers Joseph O’Donnell Attorney Client Trust Account”:
CLICK HERE to read the Settlement Agreement in its entirety.
The Settlement of this case reduces some of the over-reach of the original ordinance about “hardscape” requirements, makes certain compliance voluntary (except for a list designated species of vegetation), and dials back some provisions so that it will not “categorically require removal of well-maintained historical and ornamental plantings of Combustible Vegetation.” However, the terms, “well-maintained” and “historical” and “ornamental,” remain undefined, and enforcement will be left to the subjective discretion of the Fire Chief (with a right to appeal to the City Council).
Worse, is that the Settlement fails to address CEQA and fails to provide any framework or guidelines to protect the myriad of negative, unmitigated environmental impacts that will surely result.
We need to ask ourselves, how will the Fire Chief be able to determine what measures are required to mitigate environmental impacts, on the fly in the field, without the benefit of any CEQA policy framework to look to? As capable as I'm sure he is at understanding wildfire management, the Fire Chief has no expertise, whatsoever, in environmental science or ecological impact assessment.
Will every homeowner now be burdened with the task of hiring their own environmental experts to argue over the removal of every bush, tree limb, and blade of grass every time they disagree with the Fire Chief? And how will the City deal with this when endless arguments end up in front of the City Council on appeal? Without a CEQA assessment, how will they make their decisions without science-based programs or policies?
In other words, it's still a gigantic administrative mess.
It would be advisable for all interested parties and environmental
groups who voiced their concerns at the last hearing on the forthcoming,
revised ordinance, carefully. In our reading, protections for the
environment and species are still grossly inadequate.
When this ordinance was first proposed, the community turned out en mass with hundreds of people overflowing the Mill Valley Council chambers, which resulted in the police being summoned to keep the peace. The inadequacy of the settlement of this case suggests that public engagement and community voices need to be equally present this time around. And there's yet another thing that makes public outcry even more important this time around.
The FHRAC Draft Report
In light of the insupportable assumptions used to craft the Ordinance due to the lack of a proper CEQA assessment framework, the well-intended efforts and recommendations of the Fire Hazard Reduction Advisory Committee's Draft Report (FHRAC) must be set aside until a legitimate CEQA process is in place.
This fundamental failure to adhere to CEQA, aside, the FHRAC Report now recommends that the Council approve extending "the applicability of the Fire Hazard Reduction Ordinance from just properties in 32 the Wildland Urban Interface (WUI) to all properties within the City of Mill Valley." That means all homes, even those in the flats like Sycamore Park and near our marshlands (which have extremely low wildfire risk) will have to decimate the gardens and plantings many of us have spent decades nurturing.
This would be unprecedented. And the proposal fails to explain how the "within 30 feet of lot line" and "within 10 feet of a structure" regulations work when a typical lot is only 50 feet wide.
Are we now to assume that the one government official controls every square inch of our property? Without any evidence to support this recommendation, I would suggest it would constitute an illegal taking of property.
Going Forward
Under the Agreement, the City will conduct a “do-over” of the public hearing and come back with the “Revised Ordinance” that will not “categorically require removal of well-maintained historical and ornamental plantings of Combustible Vegetation,” as defined in Exhibit A of the Agreement.
The most disturbing thing about this Settlement is that there is still no requirement for the City to conduct a CEQA assessment of the unmitigated, negative, environmental impacts caused by the revised ordinance, which was the basis of the lawsuit in the first place.
Keep in mind, the assessment of environmental impacts of residential, single-family construction, on a house-by-house basis, is exempt from CEQA. So as it stands, there will never be any review of the overall environmental impacts of this ordinance: just the Fire Chief's opinion against a homeowner's.
This CEQA compliance omission in the Settlement is significant and if the City attempts to proceed with adopting this revised ordinance without any CEQA process, based on its claim of categorical exemption, it will remain illegitimate.
Also indicative of the City's dysfunction is the $200,000 in legal fees being paid by Mill Valley taxpayers to Rogers Joseph O’Donnell, the plaintiff’s legal counsel. Mind you, I'm not criticizing the attorney for collecting the highest fees possible. That's his business. However, having considerable experience in bringing CEQA actions, I find the City's willingness to pay this fee amount (and probably double that total cost to taxpayers when you include the costs of city staff time and legal counsel, i.e., $400,000) quite unusual given how easily the City could have settled much earlier and agreed to cure the problem at a minimal cost.
The City could have simply withdrawn the Ordinance and come back with revisions, after their initial discussions with the plaintiffs and after some reasonable CEQA process. And, even if the City had let it go to trial and lost, it is unlikely a Marin Superior Court judge would have awarded $200,000 in legal fees for a pleading as simple as this one.
As one of CVP’s legal advisers put it, “Do the math. $700/hour. 40 for the petition, 40 for the administrative record. Maybe 50 hours for the opening brief = $100,000. Plus $10,000 for a paralegal.”
Or as another attorney put it, “The next time Mill Valley does any project with a categorical exemption, please call me immediately.”
Bob Silvestri is a Marin County resident and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded only by individuals in Marin and the San Francisco Bay Area. Please consider DONATING TO CVP to enable us to continue to work on behalf of Marin residents.