HomeMy WebLinkAboutMINUTES - 11132012 - D.1RECOMMENDATION(S):
A. CONTINUE the hearing on the appeal by Robert Zupetz and Janet Zupetz from the April 9, 2012, decision of the
County Health Officer affirming the denial of a septic system permit at 5525 Old School Road, San Ramon area;
RECEIVE and CONSIDER oral and written testimony and other evidence from staff, the property owners and other
persons; and CLOSE the hearing.
B. ADOPT the Staff Report and Findings regarding Appeal of Robert and Janet Zupetz, Appellants, from the April 9,
2012, decision of the County Health Officer upholding the Environmental Health Division’s denial of an application
for a septic system permit, 5525 School Road, San Ramon area (District III).
C. AFFIRM the April 9, 2012, determination of the County Health Officer.
D. DENY the appeal of Robert and Janet Zupetz.
FISCAL IMPACT:
If the Board denies the appeal and affirms the April 9, 2012, determination of the County
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD
COMMITTEE
Action of Board On: 11/13/2012 APPROVED AS RECOMMENDED OTHER
Clerks Notes:See Addendum
VOTE OF SUPERVISORS
AYES 5 NOES ____
ABSENT ____ ABSTAIN ____
RECUSE ____
Contact: Marilyn Underwood,
925-692-2521
I hereby certify that this is a true and correct copy of an action taken and entered on the
minutes of the Board of Supervisors on the date shown.
ATTESTED: November 13, 2012
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
D. 1
To:Board of Supervisors
From:William Walker, M.D.
Date:November 13, 2012
Contra
Costa
County
Subject:Hearing on the Appeal of Robert and Janet Zupetz
FISCAL IMPACT: (CONT'D)
Health Officer, the Appellants have the option of submitting a new septic system permit application to install a new
septic system to serve a second residence. Staff’s review of the application materials would be paid for with permit
application fees and cause no impact to the General Fund.
BACKGROUND:
As outlined in the attached Staff Report and Findings, the Appellants seek to legalize a second residential unit on
their property at 5525 Old School Road in the San Ramon area. Among other things, legalizing the second unit
requires compliance with the County’s sewage disposal requirements. To that end, on December 2, 2011, the
Appellants submitted a septic system permit application to Contra Costa Environmental Health, seeking permission to
continue using an existing septic system on their property at 5525 Old School Road to serve the second residence.
Staff denied the application, advising the Appellants that their proposal did not comply with applicable regulations
and that a new system would need to be installed to serve the second residence. The Appellants appealed the decision
to the County Health Officer, who upheld the denial of the permit.
The Appellants are now contesting the determination of the County Health Officer. The Appellants claim they should
be allowed to continue using the existing septic system to serve both a primary residence and the second residence
because the system currently works. The Appellants also seek to have the County pay their attorney’s fees and costs.
Staff has investigated the Appellants’ claims and has determined that there is no merit to the appeal. Staff therefore
recommends denial of the appeal.
CONSEQUENCE OF NEGATIVE ACTION:
If the appeal is upheld, the April 9, 2012, decision of the County Health Officer will be overturned, and the
Appellants may continue to use an existing septic system to serve the second residence, in violation of County
regulations.
CHILDREN'S IMPACT STATEMENT:
Not Applicable
ATTACHMENTS:
1. Staff Report and Findings
2. Exhibits 1-51 to Staff Report and Findings
Contra Costa Environmental Health
2120 Diamond Blvd., Suite 200
Concord, CA 94520
Phone: (925) 692‐2500
Fax: (925) 692‐2502
www.cchealth.org/eh/
Date: October 23, 2012
To: Board of Supervisors
From: Marilyn C. Underwood, Ph.D., REHS, Director of Environmental Health
By: John Wiggins, Supervising Environmental Health Specialist
Subject: Staff Report and Findings re: Appeal of Robert and Janet Zupetz, Appellants,
from the April 9, 2012, decision of the Health Officer upholding the
Environmental Health Division’s denial of an application for a septic system
permit, 5525 Old School Road, San Ramon area (District III)
______________________________________________________________________________
I. INTRODUCTION
In May 2005, the Contra Costa County Building Inspection Department received a
complaint that a horse barn at 5525 Old School Road in the San Ramon area (“Property”) had
been converted illegally to a second residence. A Notice to Comply was issued to the owners,
Robert and Janet Zupetz1, advising that either the second residence would have to be converted
back to a barn, with permits, or building and zoning permits would need to be obtained to
legalize it.
Nearly six years later, in April 2011, the Department of Conservation and Development,
Community Development Division, issued a Residential Second Unit Permit to Hasseltine
Consulting on behalf of Zupetz. But the issuance of this permit alone did not legalize the second
residence. Building permits and the approval of Contra Costa Environmental Health (“CCEH”),
a division of Contra Costa Health Services, were also required.
In December 2011, Robert Zupetz submitted a Septic System Permit Application to
CCEH. Documents submitted with the application indicated that Zupetz wished to have an
existing septic system that serves a primary residence on the Property also serve the second
residence. In January 2012, CCEH staff denied the application, advising that pursuant to the
Health Officer Regulations, the second unit would need to be disconnected from the existing
septic system and connected to a new Class 1 system.
Zupetz appealed staff’s decision, and a hearing was held before the Health Officer on
March 29, 2012. On April 9, 2012, the Health Officer denied the appeal and upheld staff’s
determination. On May 8, 2012, Zupetz timely appealed to the Board of Supervisors, seeking an
order allowing the existing septic system to serve both the primary residence and the second
residence, and other relief.
1 Robert and Janet Zupetz may be referred to individually or collectively in this report as “Zupetz” or “Appellant.”
Board of Supervisors
October 23, 2012
Page 2 of 15
This report presents staff’s response to the appeal.
II. SITE DESCRIPTION
The property at 5525 Old School Road (Assessor’s Parcel No. 204-040-030) is 2.28 acres
in size and located in a semi-rural area in the unincorporated area of Contra Costa County, about
four miles east of the community of Blackhawk, approximately three miles east of San Ramon,
and nearly two miles south of the Morgan Territory Regional Preserve. The Property is within
the postal zip code area for Pleasanton and for that reason has a Pleasanton mailing address.
The Property is zoned General Agricultural, A-2, which permits specified land uses,
including a detached single-family dwelling and residential second units complying with the
provisions of the County’s Residential Second Units ordinance (Chapter 82-24 of the County
Ordinance Code). The Property is located nearly two miles outside the Urban Limit Line and is
not in the service area of any sanitary district. An aerial photograph of the Property and map of
the vicinity are attached as Exhibit 1. Currently existing structures on the Property include the
three-bedroom primary residence, a barn that has been converted to a second residence, and a
horse stall.
III. BACKGROUND FACTS
A. 1976 Approval of Septic System
On April 26, 1974, a previous owner of the Property applied for a permit to construct a
septic system. (Exhibit 2.) Percolation tests were conducted three days later with acceptable
results. (Exhibit 3.) A permit was issued in 1974 (Exhibit 4.), renewed in 1975 (Exhibit 5.)
and renewed again in 1976. (Exhibit 6.) On April 6, 1976, CCEH approved plans for the
system, which was to serve a single-family residence. (Exhibit 6.) CCEH performed a final
inspection of the construction of the system on June 29, 1976. (Exhibit 6.) The same year, the
three-bedroom, three-bathroom primary residence was constructed. (Exhibit 7.)
B. Construction of Horse Barn; Conversion to Second Residence
In approximately June 1980, a prior owner of the Property submitted a plot plan for a
concrete footing to CCEH and the Building Inspection Department (“BID”). (Exhibit 8.) The
plan does not indicate the type of structure to be supported by the footing, but does show the
proposed footing to be in approximate location of the second residence at issue in this appeal.
Later, the barn was converted to provide accommodations for a caretaker, and a pipeline
was extended from the barn to the existing septic tank. (Exhibit 9-1.)2 This work was
performed without any septic system permit. Zupetz purchased the Property in 1984 and
2 Exhibit 9 is a narrative statement submitted in support of a 2011 application by Zupetz for a septic system permit.
Citations in this staff report to specific pages of multiple-page exhibits, such as the citation to Exhibit 9-1, indicate
the exhibit number (here, Exhibit 9), followed by the referenced page(s) of the exhibit (here, page 1 of a three-page
exhibit).
Board of Supervisors
October 23, 2012
Page 3 of 15
converted the barn to a residence for their daughter and grandson in 1997-1998. (Exhibit 9-2.)
This work was also completed without a septic system permit.
C. Zoning, Building Violations Alleged; Options to Correct Violations
In 2005, someone complained about the second residence to the County’s Building
Inspection Department (“BID”). (Exhibit 10.) In response, BID issued a Notice to Comply to
Zupetz on August 30, 2005, citing as violations the conversion of the horse barn into a detached
second living unit in an A-2 zoning district without a land use permit and without building
permits. Two options were given to clear these violations: (1) Convert the second residence back
into a barn, with a building permit; or (2) legalize the second residence by obtaining zoning and
building permits. (Exhibit 11.)
D. Septic System Evaluation
In response to the Notice to Comply, Zupetz retained Questa Engineering Corporation
(“Questa”) to evaluate whether a new septic system could be constructed on the Property, and
Questa contacted CCEH in February 2006 to discuss available options. (Exhibit 12.) In March
2006, CCEH received an application from Questa on behalf of Zupetz for a soil profile
evaluation and percolation test to be observed by County staff. (Exhibit 13.) The evaluation
was conducted in April 2006 and the percolation test in June 2006. (Exhibits 14, 15, 16.) On
June 22, 2006, Questa submitted to CCEH a conceptual design plan showing the proposed
location of a subsurface drip wastewater disposal system on the Property, designed to
accommodate both the primary residence and the second residence, and asked for staff’s
assessment. (Exhibit 17.) Additional design calculations were submitted on July 13, 2006.
(Exhibit 18.) The same day, CCEH staff reviewed the plan and advised Questa to submit plans
for review based on that design. (Exhibit 19.)
E. Land Use Permit Application and Denial
On January 29, 2007, a Zupetz consultant, Peter Daly of Constructive Resolution
Associates, filed a land use permit application with what was then the County’s Community
Development Department, seeking to legalize the second residence. (Exhibit 20.) In response
to a request for comment on the application, CCEH staff advised that septic plans would need to
be submitted and approved prior to approval of building plans. (Exhibit 21-1.)
The County Zoning Administrator denied the land use permit application on May 21,
2007. (Exhibit 22-2.) The Agricultural Lands (AL) designation in the County General Plan
allows a maximum density of one dwelling unit per five acres; accordingly, a parcel designated
AL would need to be at least 10 acres in size to legally accommodate a residential unit. (Exhibit
23-3.) The Zoning Administrator found that, because the Property is only 2.28 acres in size, the
proposal to establish a second residence was not consistent with the General Plan. (Exhibit 22-
5.)
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October 23, 2012
Page 4 of 15
On May 25, 2007, the applicant appealed the denial.3 (Exhibit 24.) The San Ramon
Valley Regional Planning Commission was scheduled to hear the appeal in late 2007, but at the
applicant’s request the hearing was put off. (Exhibit 25.) Mr. Daly withdrew the application in
June 2008.4 (Exhibits 26.)
F. Residential Second Unit Permit Issued
On July 8, 2008, Mr. Daly submitted a Residential Second Unit Application, seeking
approval of the existing detached second unit.5 (Exhibit 27.) Additional documents were
submitted in support of the application on July 31, 2008. (Exhibit 28.) Initially, staff with the
Community Development Division (“CDD”) of the Department of Conservation and
Development determined that the permit request did not meet the requirements of the Second
Unit Ordinance. (Exhibit 29.) But nearly three years later, on April 12, 2011, CDD issued the
permit to Hasseltine Consulting. (Exhibit 30.) A June 30, 2011, letter from CDD staff to Eric
Hasseltine explained that the law did not permit CDD to recommend approval of the project at
the time of the 2008 application, but changes since then provided more flexibility with regard to
second unit development standards. (Exhibit 31.) 6 The permit indicates that the request to
establish a second unit was approved per a site plan, floor plans and elevations received by CDD
on April 8, 2011.7 The permit also contains an advisory note that the applicant “must comply
with the requirements of the Department of Conservation & Development, Building Inspection
Division and Contra Costa Environmental Health.” (Exhibit 30-2.)
G. Discussions with CCEH
Shortly after the permit was issued, Mr. Hasseltine delivered a package of documents to
CCEH, including a copy of the 2006 plans for the second unit, a septic inspection report, a
preliminary title report and utility bill. (Exhibit 36.)
3 Counsel for Zupetz asserted in the appeal document submitted on May 8, 2012, that the County issued a land use
permit to his client on May 25, 2007. The record does not support this contention.
4 The June 11, 2007, date on the letter from Mr. Daly withdrawing the application appears to be a typographical
error.
5 A Second Unit Permit was not an option to legalize the second residence when the barn conversion was discovered
in 2005. Residential second units became a permitted use in agricultural zoning districts with the adoption of
County Ordinance No. 2006-19, which took effect on July 6, 2006.
6 When the application was filed, the Second Unit Ordinance restricted the size of second units in agricultural zoning
districts to 1,000 square feet on parcels less than five acres in size. (County Ord. No. 2008-09, § 2.) (Exhibit 32.)
The ordinance was amended effective April 14, 2011, to allow 1,200 square foot second units on agricultural district
parcels. (County Ord. No. 2011-05, § 4.) (Exhibit 33.)
7 The plans depict a second residence with a square footage of 1,555 square feet. (Exhibit 34-1.) Revised
calculations, however, indicate that with the conversion of a family room to storage and other deductions, the second
unit would measure 1,166 square feet – within the 1,200 square foot maximum allowed by the Second Unit
Ordinance. (Exhibit 35.)
Board of Supervisors
October 23, 2012
Page 5 of 15
On June 30, 2011, CDD staff advised a Zupetz representative that a building permit
would still need to be obtained in order to legalize the second unit, and prior to the issuance of a
building permit, the applicant would have to provide evidence that CCEH had reviewed and
approved the plans. (Exhibit 31.)
On August 24, 2011, CCEH staff met with Mr. Hasseltine and Supervisor Mary Piepho
and explained the requirements for on-site wastewater treatment systems and the need for an
application packet to be submitted to CCEH so that staff could commence an official review of
the means of sewage disposal for the second residence. At the conclusion of the meeting, staff
provided Mr. Hasseltine with an application form.
By October 2011, CCEH still had not received an application. Instead, on October 20,
2011, CCEH Director Dr. Marilyn Underwood received a letter from Craig F. Andersen, an
attorney representing Zupetz, stating his understanding that the approval of the second residence
was “subject to Environmental Health’s signing off on the applicable permit,” and threatening
litigation unless the County agreed to meet and confer and resolve the matter. (Exhibit 37.) In
response, Dr. Underwood informed Mr. Andersen that CCEH had not received an application,
and that until an application was submitted, CCEH could not render a decision. (Exhibit 38.)
H. Application Filed with CCEH; Denial of Septic Permit
On December 2, 2011, Mr. Andersen met with CCEH staff and submitted a septic system
permit application on behalf of Zupetz. (Exhibit 39.) Attached to the application was a three-
page narrative entitled “Application for Approval of Second Unit Permit,” which stated the
submittal was intended to “substantiate the approval of a second unit.” (Exhibit 39-6.) The
narrative stated that the existing septic system was working well and there was no need to tear it
out and build another one. (Exhibit 39-7.)
CCEH staff reviewed the application and the supporting materials and on January 3,
2012, notified Mr. Andersen that the conversion of the barn to a second residence constituted a
bedroom addition, and that it could not be served by the existing system. Instead, a Class 1
system would need to be installed. Typically, that would mean the existing septic system would
need to be replaced or modified. In this case, however, CCEH staff advised that Zupetz could
leave that system in place, disconnect it from the second residence and install an approved septic
system to serve the second residence. But staff also said it would reconsider its position if
Zupetz presented documents conclusively showing that CCEH had previously approved
connection of the second residence to the existing septic system. (Exhibit 40-2.)
In response, Mr. Andersen indicated that he believed the 1980 concrete footing plot plan
approved by CCEH was an approval of a connection of the second residence to the existing
septic system. (Exhibit 41-1.) Staff responded that the 1980 approval was not a connection
approval. Plans for a wide array of constructive projects that do not involve connection to septic
systems are routinely submitted to CCEH to evaluate impacts of the projects on existing septic
systems. The concrete footing plot plan was one such plan, as it did not show a building
diagram, floor plan, plan or any other evidence of an intent to add habitable space or connect to a
septic system. The approval by CCEH simply indicated that the project, as described, would not
Board of Supervisors
October 23, 2012
Page 6 of 15
impinge on the existing system, and was “not an approval of the existing septic system,
connection to the septic system, barn, or additional bedrooms.” (Exhibit 42.)
I. Appeal to Health Officer
On January 27, 2012, Mr. Andersen advised CCEH that its position was “not financially
viable,” and that his client wished to appeal the decision on the septic system permit application.
(Exhibit 43.) In response, CCEH staff set an administrative hearing for February 15, 2012.
(Exhibits 43, 44.) Mr. Andersen said his client would appear with a witness. (Exhibit 45). But
on that date, Mr. Andersen objected to the administrative hearing process and the hearing was
not held. Instead, a hearing was scheduled for March 29, 2012, before the County health officer.
(Exhibit 46.)
The health officer appeal hearing was conducted on March 29, 2012. Staff presented a
report, including exhibits, to the health officer, a copy of which is attached as Exhibit 47. On
April 9, 2012, the health officer issued a written decision denying the appeal. (Exhibit 48.) The
decision included a discussion of the division’s role, the importance of consistent enforcement
and the fact that the Zupetz consultant determined it was possible to comply with the County’s
requirements:
It is important that we do not abridge our responsibility to protect
public health or the environment, and that we equitably administer
the ordinance code and regulations that we are charged with
upholding in that regard. Other individuals in the Tassajara Valley
area have faced a similar situation of bringing a second living unit
into compliance, and have done so. Further, as described by your
own consultant, there are opportunities for you to comply with the
county ordinance and regulations given your property size and
layout.
(Exhibit 48-1.)
J. Appeal to Board of Supervisors
On May 9, 2012, Mr. Andersen timely submitted an appeal to the Board of Supervisors
on behalf of Zupetz, pursuant to Chapter 14-4 of the County Ordinance Code (“Appeal”).
(Exhibit 49.) This report constitutes the response of CCEH to the Appeal.
IV. LEGAL REQUIREMENTS
Both County ordinances and Health Officer Regulations apply to this matter. They are
attached as Exhibit 50 and summarized below.
Board of Supervisors
October 23, 2012
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A. County Ordinances
1. Zoning
The County’s Second Unit Ordinance8 provides that if a private sewage disposal system
is to be used to serve a residential second unit, that system must “meet all applicable regulations
and be approved by the health officer before a second unit may be established.”9
2. Sewage Disposal
The County’s sewage disposal ordinances are set forth in Chapter 420-6 of the County
Ordinance Code. The general rule is that all structures with plumbing fixtures must be connected
to a sanitary sewer; however, “individual” systems (commonly known as septic systems) are
allowed in certain circumstances.10
a. Individual systems
• If the health officer determines that connection to a sanitary
sewer is unavailable, an application may be filed for a permit to install an individual system.11
• An individual system is a system that consists of “the
drainage pipes of a structure and the septic tank and subsurface absorption system to which they
are connected” or an alternative system designed for sewage disposal and acceptable to the
health officer.12
b. Permit requirements
• A permit is required to repair, relocate, install or construct
an individual system.13
• The construction or alteration of any structure requiring
sewage disposal is prohibited without a currently valid permit for an approved individual
system.14
8 Chapter 82-24 of the County Ordinance Code.
9 County Ord. Code, § 82-24.012, subd. (f).
10 County Ord. Code, § 420-6.301.
11 County Ord. Code, § 420-6.301, subd. (a).
12 County Ord. Code, § 420-6.111.
13 County Ord. Code, § 420-6.501.
14 County Ord. Code, § 420-6.303, subd. (a).
Board of Supervisors
October 23, 2012
Page 8 of 15
• The health officer shall approve, conditionally approve or
deny an application for a permit, and issue or withhold the permit, “on the basis of compliance
with this chapter and the health officer’s regulations.”15
B. Health Officer Regulations
1. Adoption
On October 3, 2000, the County health officer adopted the Contra Costa County
Individual System Regulations (“2000 Regulations”). The 2000 Regulations took effect on
October 17, 2000.
2. Purpose
The underlying purpose of the 2000 Regulations is the protection of public health and
prevention of environmental degradation. Improperly designed, installed or maintained systems
can result in surfacing sewage or contamination of water resources. (Exhibit 51.) The U.S.
Environmental Protection Agency (“EPA”) has identified septic system failures in the form of
yard backups as a recognized “public health hazard and insult to natural resources.” In a 2003
report, the EPA identified malfunctioning septic systems as a potential source of waterborne
pathogens from fecal contamination found in ground water-based drinking water systems studied
by the EPA. The report stated that more than half of the existing onsite systems in the United
States were over 30 years old, and that surveys indicated that at least 10 percent of them back up
onto the ground surface or into the home each year. 16 In the report, the EPA also cited the
National Water Quality Inventory 1996 Report to Congress for its statement that “improperly
constructed and poorly maintained septic systems are believed to cause substantial and
widespread nutrient and microbial contamination to ground water.”17
These threats to public health and water quality can be mitigated through proper
planning, siting, design, construction, installation, operation and maintenance of septic systems.
The 2000 Regulations contain standards intended to address these threats.
15 County Ord. Code, § 420-6.503, subd. (b).
16 “Voluntary National Guidelines for Management of Onsite and Clustered (Decentralized) Wastewater Treatment
Systems,” U.S. Environmental Protection Agency, 2003, pp. 9-11.
17 Id. at p. 4.
Board of Supervisors
October 23, 2012
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3. Applicable provisions
a. Additions and remodels
• Bedroom additions: A Class 1 system is required.18
• Class 1 system: The individual system is in compliance
with all current requirements and an unencumbered 100 percent approved and reserved drainfield
replacement area exists.19
• Redwood tanks: Dwellings with redwood septic tanks or
cesspools will not be approved for any additions or remodels until an approved individual system
is installed.20
b. Septic tank requirements
• Sizing: Septic tanks to serve single-family dwellings shall
be sized on the number of bedrooms in the dwelling. For one to two bedrooms, a minimum
1,000 gallon pre-cast tank is required. An additional 250 gallons of capacity is required for each
additional bedroom.21
• Material: Wood septic tanks and metal septic tanks are
prohibited.22
IV. STAFF RECOMMENDS DENYING THE APPEAL
A. The Health Officer’s Decision was Correct
Staff believes the health officer’s decision was correct and should be upheld for
the following reasons:
1. A septic system permit is required to legalize the second residence
Section 420-6.303 of the County Ordinance Code prohibits the construction or alteration
of any structure requiring sewage disposal “without having a currently valid permit for an
18 2000 Regulations, § 420-6.416.c.1.
19 2000 Regulations, § 420-6.416.b.
20 2000 Regulations, § 420-6.416.b.
21 2000 Regulations, § 420-6.626 and Appendix 4.
22 2000 Regulations, § 420-6.624.a.
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October 23, 2012
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approved individual system or connecting to an approved sanitary sewer.”23 This provision
applied at the time Zupetz converted the barn to a second residence in 1997-1998, but Zupetz did
not obtain the required permit.24 Legalization of the second residence therefore requires issuance
of a septic system permit, among other things.
2. Septic system permits may be issued only based on compliance with
the law and regulations
The County Ordinance Code requires the health officer to approve, conditionally
approve, or deny a permit application “on the basis of compliance with this chapter and the
health officer’s regulations.”25 Therefore, permits issued today must be based on current County
ordinances and regulations.
3. The 2000 Regulations apply
The current regulations are the 2000 Regulations; however, the 2000 Regulations kept the
previous regulations (the “1983 Regulations”)26 in place as to septic systems “legally installed
thereunder” (Exhibit 50-15.) This means that, unless the Zupetz septic system was “legally
installed” under the previous regulations, the 2000 Regulations apply to that system.
The Zupetz system was not legally installed under the 1983 Regulations. A septic system
includes the “the drainage pipes of a structure and the septic tank and subsurface absorption
system to which they are connected.”27 The date of installation of the Zupetz system as it exists
today would be the date that the drainage pipes of the second residence were installed. Staff has
no evidence as to precisely when these drainage pipes were installed. However, if they were
installed before the 1983 Regulations took effect, they were not “legally installed” under those
regulations. If they were installed later, they were installed without a permit, in violation of
County Ordinance Code section 420-6.501.28 Either way, the existing system was not legally
23 County Ord. Code, § 420-6.303, subd. (a).
24 Before filing the Appeal, Appellant’s counsel contended that the approval by CCEH of the 1980 concrete footing
plan constituted an approval of the connection of the second residence to the existing septic system. But as staff
explained to counsel at the time, the approval meant only that the footings would not impinge on the existing
system.
25 County Ord. Code, § 420-6.503, subd. (b).
26 The 1983 Regulations were adopted on March 2, 1983.
27 County Ord. Code, § 420-6.111.
28 County Ordinance Code section 420-6.501 was adopted in 1981. The installation would have also violated
Section 420-1.609.2 of the 1983 Regulations, which required a septic tank serving any residential use to have a
minimum liquid capacity of 1,000 gallons for two bedrooms and 250 gallons for each additional bedroom. The
three-bedroom primary residence and two-bedroom second residence collectively required a 1,750 gallon septic
tank. As explained infra, the existing system is smaller than that.
Board of Supervisors
October 23, 2012
Page 11 of 15
installed under the 1983 Regulations. By default, the applicable regulations are the 2000
Regulations.
4. The 2000 Regulations require a new septic system
There are two reasons why the 2000 Regulations require the installation of a new
septic system:
• The existing system is not a Class 1 system. The 2000
Regulations require a Class 1 system to serve bedroom additions.29 Class 1 systems are
individual systems that are in compliance with all current requirements.30 The current septic
tank requirements prohibit all wooden septic tanks.31 The existing system includes a redwood
septic tank and therefore is not compliant with current requirements.
• The existing septic tank is too small. Under the 2000
Regulations, the required capacity of a septic tank serving residential uses is based on the
number of bedrooms. For one to two bedrooms, the septic tank must have a minimum capacity
of 1,000 gallons. Each additional bedroom adds 250 gallons to the required capacity.32 Based
on these requirements, a septic tank with a capacity of at least 1,750 gallons would be needed to
serve both the three-bedroom primary residence and the two-bedroom second residence on the
Zupetz Property. Staff cannot measure the existing tank, which is underground; however,
documents maintained by CCEH indicate its capacity is in the range of 1,000 gallons (Exhibit 6-
2) to 1,500 gallons. (Exhibit 47-63.) As this capacity does not comply with current regulations,
the existing septic tank cannot be used to serve both the primary residence and the second
residence.
5. Other nearby property owners have had to comply with septic system
requirements
In recent years, several property owners in the vicinity of the Property have either
removed unpermitted second residences or installed new septic systems in order to comply with
County requirements. The health officer’s April 9, 2012, determination was therefore consistent
with what has been required of other property owners.
29 2000 Regulations, § 420-6.416.c.1.
30 2000 Regulations, § 420-6.416.b.
31 2000 Regulations, § 420-6.624.a.
32 2000 Regulations, § 420-6.626 and Appendix 4.
Board of Supervisors
October 23, 2012
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B. Staff’s Response to Appellant’s Appeal Points
The grounds for the Appeal are not clearly set forth in Exhibit 49, the appeal document
submitted by Appellant’s counsel. But CCEH staff identified several contentions contained in
Exhibit 49 and presumed that those were the grounds for the appeal. Those points, and staff’s
responses, are as follows:
1. Appeal Point: Appellant and Appellant’s counsel were originally
assured that the permit application would be “signed off” by CCEH,
contrary to the position now taken by CCEH staff
Staff response: As an initial matter, a second residential unit permit is not subject to
“sign-off” by CCEH or BID; however, Appellant does still need to obtain building permits from
BID and a septic system permit from CCEH in order to legalize the second residence. To staff’s
knowledge, Appellant has not yet applied for any building permits, but in late 2011, Appellant
did apply for a septic system permit. That application is the subject of this appeal.
Septic system permits are not “signed off” but instead are either issued or denied on the
basis of compliance or noncompliance with the County Ordinance Code and the applicable
regulations. In this case, CCEH could not issue a septic system permit because Appellant
proposed using the existing septic system on the Property to serve the second residence, contrary
to the requirements of the 2000 Regulations. Staff’s position is that Appellant needs to either
install a new system to serve both the primary and second residence, or a new system to serve
just the second residence.
Staff never said or implied to Appellant or Appellant’s counsel that Appellant would not
need to comply with legal requirements. However, even if Appellant or Appellant’s counsel had
been told that that Zupetz would get a permit “sign-off” or otherwise be allowed to continue
using the existing septic system to serve the second residence, without regard to the actual permit
procedures, laws and regulations, such an unauthorized statement would not legally bind the
County.
2. Appeal Point: Staff’s position would be costly to defend
Staff response: The cost of defending staff’s position in this matter is not a factor that
may be considered with regard to whether a septic system permit may be issued or must instead
be denied. Permits may be issued or denied only on the basis of compliance with the laws and
regulations.
3. Appeal Point: Installation of a new septic system is impractical based
on topography
Staff response: Documentation submitted to CCEH by Questa, one of the Zupetz
consultants, indicates that there is a suitable location on the Property for the installation of a drip
dispersal system to serve both the primary residence and the second residence. (See Exhibit 17.)
Installation of a second system to serve just the second unit is another option for compliance.
Appellant has not submitted any documentation to suggest that the second option is not feasible
Board of Supervisors
October 23, 2012
Page 13 of 15
from a topographical standpoint, and staff is not otherwise aware of any physical impediments
on the Property in this regard.
4. Appeal Point: A new septic system would be inconsistent with the
County’s Second Unit Ordinance in that the regulations were
established after Appellant’s original application
Staff response: The installation of a new septic system would not undermine the
County’s Second Unit Ordinance. The Second Unit Ordinance incorporates the requirement that
if a private sewage disposal system is proposed to be used, “it must meet all applicable county
regulations and be approved by the health officer before a second unit may be established.”33
With regard to the 2000 Regulations, they took effect on October 17, 2000 – nearly seven
years prior to the January 29, 2007, application for a Land Use Permit to legalize the second
residence on the Property, and eight years prior to the application for a Second Residential Unit
permit.
5. Appeal Point: The installation of a new system would be impractical,
because the existing system functioned properly when it was tested
annually by Appellant
Staff response: With regard to the condition of the existing septic system, staff
acknowledges that the tank and drainfield were found to be in “acceptable” condition after an
inspection in May 2011 by A-1 Septic Tank Service. But the company also advised Zupetz that
it could not represent or warrant that any septic system would operate properly for any length of
time. (See Exhibit 47-63.) The company further stated, “You are advised that there is no simple
low cost method of determining if a system is close to failing. The lack of any physical evidence
is no guarantee that the system will operate for any specified length of time after this
inspection.”34 In other words, failure could occur at any time.
The redwood septic tank, in particular, is a concern to staff. Typically, septic tanks
constructed of wood are more subject to decay, and less likely to remain watertight than septic
tanks constructed of concrete or other approved materials. This condition may allow
inadequately treated wastewater to soak into the ground, potentially contaminating groundwater.
The unsaturated tops and other portions of wood tanks are particularly susceptible to rotting,
causing a dangerous physical hazard due to the risk of collapse. There are documented cases of
people and animals falling into collapsed wooden septic tanks. For these reasons, septic tanks
constructed of wood are widely prohibited.
Under the circumstances, the continued use of this system to serve both the primary
residence and the second residence is the impractical approach.
33 County Ord. Code, § 82-24.012, subd. (f).
34 Id.
Board of Supervisors
October 23, 2012
Page 14 of 15
C. The Relief Requested By Appellant Is Not Authorized
Appellant is asking to be allowed to continue using the existing septic system, and for an
award of fees and costs. But as explained below, the County is not legally authorized to grant
this relief.
1. The County Ordinance Code does not permit the County’s sewage
disposal requirements to be waived
Appellant does not dispute that the applicable laws and regulations do not allow the
existing septic system to serve both the primary residence and the second residence on the
Property. Instead, Appellant essentially seeks a waiver of the County’s legal requirements. But
nothing in the County Ordinance Code authorizes a waiver of this sort. Moreover, a waiver
would be inconsistent with the County’s Second Unit Ordinance, which specifically requires a
private sewage disposal system serving a second unit to meet “all applicable county regulations
and be approved by the health officer before a second unit may be established.”
2. The Board does not have the power to order reimbursement of fees or
pay Appellant’s costs
Appellant asks for an award of “all costs and fees,” Because no legal authority
gives the County the power to award fees and costs to appellants in administrative proceedings
like this one, such an award could be considered an improper gift of public funds.35
D. Appellants’ Proposed Resolution Is Not Recommended
Counsel for the Appellants has proposed the following as a resolution of this matter:
1. The Appeal is granted;
2. Appellant is not required to install and connect a new septic system to serve the
second residence; and
3. Appellant enters into an agreement that would “run with the land” and require
annual inspections of the existing septic system and repairs if the inspections or
“other circumstances” indicate the system is not operating property.
This proposal is not recommended, for three reasons.
First, it would amount to a waiver of the County’s sewage disposals requirements, which
as explained above is not authorized by the County Ordinance Code.
Second, it is possible that someone could be injured or property could be damaged
because of a failure of the existing septic system. In this regard, staff notes that a neighbor of
35 See Cal. Const., art. XVI, § 6.
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October 23, 2012
Page 15 of 15
Zupetz recently applied for a new domestic water well permit. The proposed location of the well
is approximately 50 feet from the western boundary of the Property, and approximately 200 feet
from the Appellant’s septic system. These setbacks meet the regulatory requirements in place to
provide a level of public health protection. But due to the age of the existing septic system, and
use of a redwood septic tank, staff is concerned that groundwater degradation could occur that
may impact the neighbor’s water well quality. This concern arises because Appellant’s system,
while not showing apparent signs of malfunctioning a year ago, may not be providing the level
of wastewater treatment adequate to protect groundwater quality.
Third, staff has concerns about the enforceability of the proposed agreement. Generally,
a property owner’s promise to perform an act on his or her property, also known as a covenant,
“runs with the land” if the covenant benefits land owned by the recipient of the covenant.36
When a covenant runs with the land, it is binding upon and may be enforced against not just the
original owner who made the promise, but also successive owners. In this case, the proposed
covenant probably would not be binding on future owners of the Property because there is no
indication that inspections of or repairs to the Zupetz septic system would benefit any land
owned by the County. For these reasons, the proposed commitment probably would be only a
personal obligation of Zupetz, and not enforceable against future owners.
V. OPTIONS FOR COMPLIANCE
Appellant has two options to gain approval of a method of sewage disposal for the second
residence. Much of the preliminary work to establish an approved septic system on the Property,
taking into account the topography and space constraints, was done by Questa in 2006. The
options are:
1. Obtain a septic system permit, install an approved septic system to serve the second
residence, establish adequate replacement areas and disconnect the second residence from the
existing septic system.
2. Obtain a septic system permit, install an approved septic system to serve both the primary
residence and the second dwelling unit, and decommission (under permit from CCEH) the
existing septic system.
JW/
36 Civ. Code, § 1468.
October 16, 2012
Mr. Craig Andersen
Wood, Smith, Henning & Berman LLP
1401 Willow Pass Road, Suite 700
Concord, CA 94520
RE: Zupetz Appeal of Administrative Decision
You are hereby notified that Tuesday, October 23, 2012 at 10:00 a.m. is the date and time set for the
hearing of your appeal in regard to the denial of a septic system permit at 5525 Old School Road, San
Ramon area. The hearing will be held in the Board of Supervisors Chambers, 651 Pine Street, (corner of
Pine and Escobar Streets) Room 107, Martinez, California.
If you challenge this matter in Court, you may be limited to raising only those issues you or someone else
raised at the public hearing described in this notice, or in written correspondence delivered to the County
at, or prior to, the public hearing.
Very truly yours,
David Twa, County Administrator
And Clerk of the Board of Supervisors
By _____June McHuen_______________________
June McHuen, Deputy Clerk