Yeoryios Apallas | Jun 24, 2015

NVR LTE: Retroactive approvals of unlawful behavior?

I have read with interest the Planning Commission’s action on the Reverie Winery use permit breaches (Napa Valley Register Saturday June 19, 2015), 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 Planning Commission decided to forego the requirement that the property be restored to a condition consistent with the use permit granted the Caves. Specifically, the Planning Commission 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 Planning Commission’s approval of historical breaches of use permit conditions applicable to this property. How can this decision be justified in light of the Caves decision which was handed down by this very commission only a scant six or so weeks ago. Does this not smack of selective enforcement and does it not open the county to costly legal action by the Caves proprietor whose case was decided completely the other way? Does this not smack of arbitrary and capricious action on the part of county officials? And what of the credibility of this action? How can a citizen plan his or her business decisions when the rules of engagement are so arbitrary and without rational basis? Does this not smack of unfairness?

Leaving such points aside, I want to urge the Planning Commission to reconsider its promiscuous granting of ex post facto approvals of use permit violations. This illustrates my point that the “after the fact” county approval of illegal structures or impermissible activities, is a bankrupt and horrid public 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 and 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 arbitrary and irrational Planning Commission approvals and disapprovals of similarly situated applicants. This is a 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.

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 the Planning Commission retroactively laundered 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.

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 Reverie Property through the 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 monetary sanction which can then be directed to enhanced county 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 permits? Enhanced enforcement and taking the profit incentive out of this lawless 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.

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 the historically approved conditional use permit. Such in terrorem 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 Board of Supervisors, in its infinite wisdom, botches it by its other promiscuities in granting variance permits. On that, more later.

This addiction to retroactive cleansing of substantial use permit violations has to stop. If the county does not do it, perhaps the courts in protracted and costly litigation will. Or perhaps the citizens will take the matter into their own hands and stop at the ballot box this culture of blatant abuse of power.

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