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News: 05/01/2020

Local squabble over pot farms tests state fire safety laws

County’s interpretation of backcountry fire rules in for major review



Craig Harrison lives on Sonoma Mountain Road and he objects strenuously to having a pot farm next door. As an attorney, he looks deeper into the murky world of county ordinances and state fire safety rules than most people, and last year found the leverage he was looking for to stop Sonoma County from approving new development on one-lane roads that don’t meet state fire safety standards.

Along with dozens of other folks throughout the county, including many with no animosity toward cannabis farms, Harrison and his neighbor Deborah Epstein stopped the State Board of Forestry and Fire Protections from what looked like a routine certification of the county’s revised fire safety rules. Under California rules, counties either apply the state regulations applicable to rural areas covered by CalFire, or they develop their own rules that have to be certified as either equal to or better than the state standards.

The state standards were promulgated by the State Board of Forestry and Fire Protection (BOF) when the state legislature required it back in 1991. Del Norte, Humboldt, Napa, Orange, San Bernardino, San Diego, Shasta, Sonoma, and Tuolumne have their own rules; the other 49 counties use state standards. The BOF re-certifies individual county regulations whenever they are modified.

Sonoma’s revised fire rules, codified as Chapter 13 of Sonoma County ordinances, were submitted for certification last November. The objections filed by Harrison and dozens of others caused the BOF to pull the item from its January agenda. The matter was taken up in April with no conclusion. BOF staff is now proposing an Emergency Regulation to clarify the state rules.

When the state rules were initially promulgated in 1991, they specifically exempted projects already on the books from a requirement that two-way, 20-foot wide roads be in place to allow development in state covered lands. Roads servicing new development had to be capable of two-way traffic to let fire engines get to the scene while occupants fled the other way. Roads any narrower than 20 feet can cause traffic jams and worse in emergencies, according to the thinking of the day, which hasn’t changed since then.

As the rules were written, however, Sonoma County has taken the view that any new project on a dead end road built before 1991 is exempt from the road width requirement.

Harrison, et al., assert that the rule means that any new development is not permitted on non-conforming rural roads. BOF Land Use Policy Manager Edith Hannigan tended to agree and has proposed changes to the state language.

Deputy County Counsel Linda Schiltgen has taken strenuous exception to the delay.

“The County of Sonoma needs to protect our community with our local fire safe ordinance. We need to move forward with our additional fire safety protections. The public comments that halted this review have no merit. They support a change in interpretation that has been in place for 29 years. They argue the fire safe regulations should reach back retroactively to pre-1991 access roads and driveways that were in place before the original adoption of these laws. They argue that all new construction and development (including new residences and accessory dwelling units) would require pre-1991 access roads to be redesigned and rebuilt to modern regulations – including 20 foot widths.”

Schiltgen also asserts that the novel interpretation would require people who lost their homes in the 2017 and 2019 fires to have to rebuild roads to modern standards.

She also pointed out that the BOF has routinely re-certified Sonoma’s changes over the years.

Both Harrison and BOF staff found those arguments to be inaccurate and overreaching.

BOF’s Hannigan asked Schiltgen to provide some legal basis for her conclusions while serving up several reasons for thinking a review of how the rules are applied is appropriate, including two Attorney General interpretations since 1991 saying just the opposite.

Hannigan’s proposed revisions to the applicable state rules clarify that homes and buildings lost to fire and disaster can be rebuilt according to county codes and that, while a county can approve new development on substandard roads, it will have to require that the new construction “be reasonably accessed and served in the case of a wildfire, with adequate ingress, egress, and capacity for evacuation and emergency response,” which would be definitely a higher standard than is now imposed.

Support for changing the rules has been voiced from people and groups throughout Sonoma County, including Bennett Valley, Graton, Healdsburg, Matanzas Creek, Oakmont, Petaluma, Santa Rosa, Sebastopol, Sonoma Mountain, and St. Helena Road.

BOF monthly meetings typically stretch over two days, with subcommittees meeting one day and the whole board the following day.

This matter will be heard in a virtual public hearing of the Board of Forestry on May 5 and 6. Registration links and staff reports for these meetings are available on the Board of Forestry and Fire Protection website (bof.fire.ca.gov/).


Email: jay@kenwoodpress.com

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