[email sent to John McDowell, with copies the Heather Phillips and Anne Cottrell]
I have read with interest the Reverie staff report, and I must say, that this is a poster child of what is wrong with the permissive nature of the “build it and seek forgiveness” attitude which has for too long been the policy of this county. I see very little distinction between what has occurred at Reverie relative to a number of breaches of county ordinances/codes and violations of use permit conditions, and the recently disposed, although in an anodyne fashion, the Caves Project. Recall that in the latter matter, the PC decided to forego the requirement that the property be restored to a condition consistent with the use permit granted the Caves. Specifically, the PC did not require the removal of the offending tasting pavilion nor the sealing of the cave portal that accessed the tasting pavilion. I think that was the wrong decision but the citizens lost that vote 4 to 1.
Regarding the Reverie Project, I am disappointed to see the staff report recommending the conditional approval of historical breaches of use permit conditions
applicable to this property. I shall refrain from engaging in ad hominem arguments to burnish my points here but I suppose the blithe disregard of those conditions by the operator certainly opens a window into the moral fiber of an operator of a business enterprise that would engage in so many sustained and long standing violations for which he now seeks “papal absolution”. Certainly it was not by accident that a second story was added to the property and certainly it was not by chance or careless error that the visitations and events were exceeded from the numbers approved in the use permit. And of course, one cannot ignore the malfunctioning septic system that has been in use for years. This was volitional action that the county must neither countenance nor approve.
Leaving such points aside, I want to urge the PC to reconsider its promiscuous granting of ex post facto approvals of use permit violations. Reading between the lines here, I think this winery probably got caught up in an enforcement action or audit proceeding and thus had to “fess up” and seek retroactive approval of its illegal activities. I point this out to illustrate my point that the “after the fact” county approval of structures or impermissible activities, is a bankrupt and horrid policy. Instead of encouraging compliance ab initio, it fosters the view that “I will build beyond my use permit, and if caught (low percentage generally) I will merely seek retroactive approval.” We saw that mind set play out in the Caves hearing. One can only speculate as to how many other scofflaws are out there doing the Caves/Reverie mea culpa shuffle with a wink, a smile a bag full of money earned through conditional use permit violations. Let’s stop this unlawful activity by not falling prey to the “It’s easier to ask for forgiveness than permission” business model that may be prevalent in the Valley. And let’s not cobble public policy from anecdotal testimonials from neighbors about what a “great person and neighbor” the violator is. This is poor foundation for effective public policy when it comes to enforcement of use permit conditions that are enacted for the public health and welfare of all the citizens of the county.
Unlike the Caves matter where the staff provided the PC a palette of choices from which to craft a cogent and enforceable decision, here I find it extraordinary that you are recommending the very thing that was decided opposite in the Caves. Does not this smack of selective enforcement? Would not the County be found vulnerable to an attack about selective enforcement? How can the Caves be required to stop its operations for a year, and yet in Reverie you are recommending retroactive approval (or as you euphemistically call it “recognition”) of activities that, but for the sharp eyed audit of this entity, would have gone unnoticed. The County has to tack a consistent course in similarly situated breaches. I see very little difference between what occurred in the Caves and the breaches that your report seeks to retroactively launder in Reverie. It makes no sense and it is bad public policy. The citizens of this county must know the rules of the game and draw comfort from the fact that such rules will be enforced firmly and appropriately against all who violate them without selectively putting the county’s heavy thumb on the scale of justice.
Please reconsider your recommendations and enforce the use permit conditions aggressively and effectively. Doing otherwise would cause the citizens of this county to lose (if not already lost) faith in its policy making processes and those who govern them. And when that faith is lost it is hard to rebuild and recapture.
In sum, I want to remind you of a few equitable principles in the California Civil Code. They go something like “No one can profit from his own wrong” and “Those who seek equity must come to [the county] with clean hands” Civil Code Section 3517 and Kendall-Jackson Winery Ltd. V. Superior Court (1999) 76 Cal.App. 4th, 970, 978. I am certain that the pending sale of this property to the far east investors which own the adjacent property is conditioned on whitewashing all the use permit violations that exist on this property. I am equally certain that the price has been enhanced with an “as built” compliant property than without. The value of the property through the proffered retroactive approval of these violations will undoubtedly be enhanced. Should not the citizens of this county be able to capture some of this “newly created value” as a stiff sanction to be directed to enhanced code enforcement? And shouldn’t the citizens of this county, in the public interest, be compensated for the long term breaches of the use permit conditions? After all how else will you get the scofflaws of this county, of which I am certain there are many, to comply with their conditional use permit? Enhanced enforcement and taking the profit incentive out of the violative behavior will go a long way to returning to conditional use permit compliance and level the playing field for CEQA review and other regulatory oversight. The letter from the Law Firm of Abbott & Kindermann
, LLP dated April 29, 2015 and addressed to the Board of Supervisors and the Planning Commission, succinctly stated the confounding problem of retroactive whitewashing of use permit violations: “In short, the County’s failure to enforce its code, allowing ongoing violations and issuing after-the fact [sic] permits, encourages more violations. …[T]his process is having the practical effect of allowing these winery owners/operators to skirt CEQA compliance. They do so by claiming that a new and elevated ‘baseline’—created by the code violations that have been allowed to continue for years at a time—must be considered for purposes of the CEQA analysis of the after-the-fact permit.”
Allow me to make a modest proposal which I heard recently reverberating around the county halls. Why not simply require all persons found to have violated their conditional use permits in a material way, to revert the property, where practicable, to a state which would comply with historically approved conditional use permit. Such in terrorum ordinance or sanction would certainly focus the citizens’ attention to their contractual obligations under their use permits. Such proposal provides clarity, is swift in its application, and encourages compliance, unless, of course, the BoS, in its infinite wisdom botches it by its other promiscuities in granting variance permits. On that, more later.
Finally, I have read with great interest the learned and substantive letter
addressed to you by Mr. George Caloyannidis dated May 18, 2015, the contents of which I adopt herein as though fully set forth in this email to you. In addition, I would like to have the above referenced and previously submitted Abbott & Kindermann, LLP letter dated April 29, 2015 and part of the Caves administrative record noticed by the PC under Evidence Code Section 452 et seq. as though fully set forth in this hearing.
With warmest regards,