Wednesday, July 30, 2014

Grand jury report: County slammed for not enforcing ordinance

From page A1 | July 07, 2014 |

According to the annual Grand Jury report, several county departments and individuals failed to protect the public from threats to the environment and to the health of local residents. The report cites the departments of Transportation and Community Development as well as the District Attorney’s Office at best for inattention and perhaps ineptitude or bowing to political pressure regarding the lack of enforcement of several county ordinances, particularly the “Grading, Erosion and Sediment Control Ordinance.” As a result, property owners graded their land without permits causing some significant environmental impacts.

At issue are several chinks in the permitting process, especially that if an individual or contractor simply does not apply for a grading permit and consequently does not pay the fee for same, the county evidently has no impetus to make a lawful inspection of the work. Under the ordinance, however, it’s clear that the county does have the authority to stop the work, mitigate the damages and charge the offender for the costs, the report states.

The report notes that the fee and permit application are the triggers for involvement by the appropriate county departments, especially Transportation and Planning/Community Development. The Grand Jury studied one particularly egregious case that involved land in the area of the proposed Diamond Springs Parkway and Diamond-Dorado retail development.

According to the report, the landowner hired a grading contractor who failed to complete the necessary application documents and payment of the permit fee. That individual allegedly then did substantial grading of earth containing toxic limestone waste at the site of a former Diamond Lime processing plant, which is also within the plan boundaries for the parkway and retail project. In addition, the state Department of Fish and Wildlife opened an investigation of the property and issued citations for fines of nearly $100,000, the report says. The county issued “stop work” orders that went unheeded. The Fish and Wildlife agency forwarded the case to District Attorney Vern Pierson for legal action. The DA’s Office opened a case but later closed it for reasons that are unclear in the report.

Deputy District Attorney Jim Clinchard, however, discussed the case Wednesday in a phone call responding to a Mountain Democrat request for information.

The case was originally handled by an attorney in 2012-2013 who is no longer with the department, Clinchard said. Relevant documents and office records are incomplete and not easily traced, but more importantly, he said that as a misdemeanor criminal case, “it would have been incredibly difficult to prove criminal intent.” Winning a criminal case would not necessarily solve the pollution problem because the owner could tell a judge he had no money for the cleanup work and putting him in jail or on probation, likewise, would not address the issue, Clinchard reasoned. Based on considerable experience with “environmental” cases, he said proving criminal intent is typically a huge barrier to winning a case. He also pointed out that the case was dismissed long before the recent Grand Jury was impaneled and that the case may be more appropriately handled by the state, that is Fish and Wildlife and Water Quality agencies.

Clinchard described the county’s existing ordinance as “a very powerful tool” that could have been used and could be used to resolve the actual environmental problems. The statute of limitations has run out on the matter as a criminal case, he said.

The report describes the initiation of the case as follows: “Citizens using the El Dorado Trail, a bike/pedestrian path on the former railroad right-of-way at the North perimeter of the property, reported white, milky water and dead mammals in two tributaries of Webber Creek to the CDFW. CDFW documented lime discharge from the property on March 17, 2011. Testing showed alkalinity up to pH 12, equivalent to ammonia or oven cleaner, on the property. A CDFW violation case was filed with the county District Attorney.”

Why the situation was not addressed more aggressively and therefore persists to today is noted in the report:

“Both County staff and officials reported that they perceived it to be the will of the Board of Supervisors that the Ordinance not be enforced. They stated that El Dorado is a property rights county; the will of the Board of Supervisors is that property owners not be burdened by strict compliance with requirements perceived to be onerous for some property owners. Several witnesses reported they believed the Ordinance imposed excessive burdens on property owners maintaining rural access roads.

“The public appears to understand that the Ordinance is not enforced. Neither of the contractors who performed illegal grading in Report No. 13-15 or 13-16 felt required to obtain a permit for the grading they performed. In Report No. 13-16 the Contractor appears to have understood that if he failed to pay the fee for a grading permit no action would be taken to enforce the terms of the permit.”

Under the guidelines of the Grand Jury, the county has 90 days from publication of the report to issue an official response. The departments that had and continue to have the authority under the ordinance to do something about the specific situation described in the report, mainly transportation and the community development agency, are under the direction of Assistant Chief Administrative Officer Kim Kerr. She responded by e-mail to a request for comment from the Mountain Democrat Tuesday.

“We received your e-mail. The County will not be providing a comment on the report until our official response is due,” she wrote.





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