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HomeMy WebLinkAboutMINUTES - 06032014 - D.12RECOMMENDATION(S): 1. OPEN the hearing on the appeal by the East Bay Municipal Utility District (EBMUD) of the County Building Official’s determination that EBMUD is required to obtain a County grading permit and pay the associated permit fee for the Argyle Reservoirs Access Road Project at Rancho Road in the unincorporated area of El Sobrante, APN 430-190-004; RECEIVE and CONSIDER oral and written testimony and other evidence from County staff, the Appellant, and other persons; and CLOSE the hearing. 2. AFFIRM the determination by the County Building Official that EBMUD is required to obtain a County grading permit and pay the associated permit fee for the Argyle Reservoirs Access Road Project. FISCAL IMPACT: If the Board of Supervisors affirms the County Building Official’s determination in this matter, EBMUD would be required to pay a grading permit fee to the Department of Conservation and Development upon issuance of a grading permit. The permit fee is estimated to be $15,576. BACKGROUND: On February 25, 2014, the East Bay Municipal Utilities District (EBMUD) informed the County of its proposed project to construct a new access road connecting Rancho Road to the Argyle Reservoirs in El Sobrante (the Project). APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 06/03/2014 APPROVED AS RECOMMENDED OTHER Clerks Notes:See Addendum VOTE OF SUPERVISORS AYE:John Gioia, District I Supervisor Candace Andersen, District II Supervisor Mary N. Piepho, District III Supervisor Karen Mitchoff, District IV Supervisor Federal D. Glover, District V Supervisor Contact: 925-674-7722 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: June 3, 2014 David Twa, County Administrator and Clerk of the Board of Supervisors By: June McHuen, Deputy cc: D.12 To:Board of Supervisors From:Jason Crapo, County Building Official Date:June 3, 2014 Contra Costa County Subject:Appeal by the East Bay Municipal Utility District regarding the requirement to obtain a grading permit for the Argyle Reservoirs Access Road Project BACKGROUND: (CONT'D) > The County Building Official informed EBMUD staff that EBMUD is required to obtain a grading permit from the Department of Conservation and Development (DCD) for the grading work associated with constructing the new access road. Public Works Department (PWD) staff informed EBMUD staff that EBMUD is required to obtain an encroachment permit from PWD for construction-related activities within the County right-of-way along Rancho Road. However, EBMUD chose to begin construction of the new access road without obtaining either a grading permit or an encroachment permit, resulting in DCD issuing a Stop Work Notice to EBMUD on March 13, 2014 for performing grading work without a grading permit. EBMUD’s decision to begin work without the required permits created a public safety hazard by obstructing Rancho Road and jeopardizing the structural integrity of Rancho Road and the adjacent hillside where the new access road was under construction. County regulation of the Project through the issuance of a grading permit is authorized under the County Ordinance Code and is necessary to protect public safety. EBMUD contends the Project is exempt from the County’s grading ordinance and has filed an appeal of the grading permit requirement to the Board of Supervisors. Ordinance Code section 14-4.002 authorizes an appeal of the County Building Official’s determination that a grading permit is required for this project. County staff disagrees with the argument for exemption put forth by EBMUD and recommends the Board of Supervisors uphold the requirement that EBMUD obtain a grading permit and pay a grading permit fee consistent with the County’s fee schedule. Timeline of Events and Impacts to Public Safety On February 25, 2014, County staff was informed of the Project by EBMUD’s contractor, McGuire and Hester. The Project involves construction of a 515 foot paved access road beginning at the edge of Rancho Road and continuing up a steeply sloped hillside to the existing Argyle Reservoirs near the top of the hill. Approximately 200 feet of the new access road would be 20 feet wide, and the remaining length of road would be 12 feet wide. The grade of the access road would vary from 10% to 20%, with over 200 feet of road having a grade of 20%. The Project involves grading approximately 3,700 cubic yards of soils. Based on the description of the Project, County staff determined that both a grading permit and an encroachment permit would be required. Over the following two weeks, DCD and PWD staff communicated with EBMUD’s contractor and EBMUD staff regarding the Project in an effort to obtain compliance with County permitting requirements. During this time period, EBMUD submitted an application for an encroachment permit to PWD, but did not submit an application for a grading permit to DCD. On or around March 10, 2014, EBMUD’s contractor began construction activities along Rancho Road. At the time work commenced, EBMUD had obtained neither a grading permit nor an encroachment permit from the County. In the absence of precautionary measures required by the County’s permitting process, EDMUD’s actions endangered the safety of the residential community surrounding the project site. At the time work commenced, residents in the surrounding community, who rely upon Rancho Road as the primary access route to their homes, were not notified of the Project as required by the County grading ordinance. EBMUD had not developed plans to mitigate the traffic impacts of the Project, as is required by an encroachment permit. On the first day of construction, approximately 13 large dump trucks, each 35 to 40 feet in length, appeared along Rancho Road, without consideration of the impact on the surrounding community or the structural integrity of Rancho Road. Rancho Road is a two-lane residential street with no shoulder that serves as the main route of travel between Appian Way and a residential neighborhood of several dozen homes. During the week of March 10, 2014, construction vehicles obstructed Rancho Road at various times. Traffic along Rancho Road was severely disrupted, restricting access to an entire residential neighborhood. According to accounts from local residents, a school bus transporting disabled children was prevented from passing through the area. Traffic control measures were inadequate, with minimal direction provided to vehicle or pedestrian traffic along Rancho Road. Passenger vehicles were observed driving into the lane of oncoming traffic in order to navigate around construction vehicles. Amidst the traffic congestion, one of the construction vehicles hit a fire hydrant along Rancho Road, rendering the fire hydrant inoperable. EBMUD’s construction activities also represented an immediate hazard to the structural integrity of Rancho Road and the adjacent hillside where the new access road was under construction. No analysis was conducted concerning of the structural impact to Rancho Road associated with the large number of heavy construction vehicles used for the Project, as required by an encroachment permit. Nor had EBMUD submitted plans to DCD concerning the grading and design of the new access road, as required by a grading permit. EBMUD had not provided a soils report, as required by the grading ordinance, to substantiate that the geologic characteristics of the hillside were suitable to the construction of the proposed access road and associated loads that would be placed on the new road. Given the steep grade of the hillside where the access road was under construction, the absence of grading and road design information created a significant risk to public safety, including the safety of those constructing and the new access road, and those traveling along the abutting Rancho Road (a County street). EBMUD’s construction activities also represented a long-term safety hazard to future users of the new access road and Rancho Road. In the absence of a grading permit, and given the steep grade of the construction site, County staff had no assurance the proposed access road and underlying soils could withstand loads associated with emergency vehicles, such as fire-fighting apparatus, that might be required to use the access road. In addition, absent a grading permit County staff had no information concerning the drainage system that would convey storm water run-off from the new access road to the adjacent Rancho Road downhill. This raised concerns regarding the future structural impact of storm water drainage onto Rancho Road, and well as concern regarding compliance with storm water pollution control requirements under the County’s National Pollutant Discharge Elimination System (NPDES) permit with the Regional Water Quality Control Board, which enforces State water quality laws under Division 7 of the California Water Code. The safety of the community, the County road and adjacent hillside were placed at significant risk by EBMUD’s actions. These negative community impacts would have been addressed and mitigated had EBMUD obtained the required grading and encroachment permits prior to construction. The actions of EBMUD and its contractor caused outrage and frustration among residents in the community along Rancho Road and connecting streets, which include properties in unincorporated El Sobrante and within the City of Pinole. During the week of March 10, 2014, officials at the City of Pinole and Contra Costa County began receiving complaints from residents concerning the impacts of the Project. On March 13, 2014, the City of Pinole called a meeting at Pinole City Hall to discuss the Project. Representatives from the City of Pinole, EBMUD, DCD and PWD were in attendance. At this meeting, EBMUD repeated its contention that it is not required to obtain a grading permit for the Project. At the conclusion of the meeting, DCD staff issued a stop work notice to EBMUD representatives. EBMUD staff agreed that EBMUD would stop work on the project. Over the following week, EBMUD and DCD staff exchanged communications regarding EBMUD’s requirement to obtain a grading permit. On March 21, 2014, EBMUD provided a letter to DCD (attached) indicating that EBMUD would obtain a grading permit for the project and would pay the required grading permit fee. EBMUD also indicated its intent to appeal the requirement of a grading permit to the Board of Supervisors. Since March 21, 2014, EBMUD has submitted a grading permit application and supporting documentation to DCD. DCD has reviewed the grading plans and supporting documentation submitted by EBMUD, and has made numerous technical comments concerning plan revisions required to comply with the County grading ordinance. EBMUD has submitted revised plans responding to many of DCD’s comments. However, EBMUD has not fully complied with all County requirements at this time, and a grading permit has not been issued for the Project. At the request of EBMUD, a community meeting was held at Pinole City Hall on April 8, 2014 to provide community members an opportunity to discuss the Project with EBMUD representatives. Representatives from the City of Pinole and the County were also in attendance. At the meeting, community members expressed anger and disappointment with the manner EBMUD has chosen to pursue the Project. Concerns were raised regarding the public safety impacts of the project resulting from traffic congestion and heavy loads placed on Rancho Road during construction. Concerns were also raised regarding long-term impacts to Rancho Road resulting from drainage and increased storm water run-off flowing from the new EBMUD access road onto Rancho Road. Many of the concerns raised by the community would have been addressed and mitigated had EBMUD obtained the required grading and encroachment permits prior to construction. Also on April 8, 2014, EBMUD submitted its appeal of the County grading permit requirement to the Clerk of the Board. Legal Basis for Grading Permit and Grading Permit Fee EBMUD contends that it is not required to obtain a grading permit from DCD for the Project because the Project is exempt from the County grading ordinance. EBMUD also claims it is exempt from paying grading permit fees. County staff disagrees with EBMUD’s claims. County Authority to Require a Grading Permit Under County Ordinance Code section 716-4.204, “no person shall grade without having a valid permit as provided in this chapter [Ordinance Code chapter 716-4].” “Grading” is defined in Ordinance Code section 716-2.426 and includes digging, excavating, transporting, placing, spreading, depositing in an embankment or fill; compacting or settling, or shaping of surfaces and slopes in excavations and on embankments; backfilling of trenches, pits, ditches and other excavations or natural depressions; and “[a]ll other operations performed by or controlled by human agency involving the physical movement of rock or soil.” The construction of the new access road involves “grading” as defined in the County Ordinance Code. EBMUD asserts it is exempt from obtaining a County grading permit under Government Code section 53091(d), which provides that building ordinances of a county or city do not apply “to the location or construction of facilities for the production, generation, storage, treatment, or transmission of water, wastewater, or electrical energy by a local agency.” However, this exemption is limited only “to facilities directly and immediately used to produce, generate, store or transmit water.” (See City of Lafayette v. East Bay Mun. Utility Dist. (1993) 16 Cal.App.4th 1005, 1014 (emphasis in original).) The proposed access road would not be directly and immediately used to produce, generate, store, or transmit water. It will be a road used to obtain access to a reservoir from a County road. The proposed access road project is therefore not exempt from the permit requirements of the County Grading Ordinance. EBMUD’s contention that the proposed access road is an essential component of its water distribution system is further undermined by the fact that the Argyle Reservoirs are currently served by two access roads. The reservoirs have been in operation for many years while being served by these two access roads. This indicates the new access road is not essential to the operations of the reservoirs. EBMUD also asserts that it is exempt from obtaining a County grading permit under Section 716-4.208 of the County grading ordinance, which exempts certain types of projects from the grading permit requirement. One exemption under Section 716-4.208 applies to grading in an isolated, self-contained area where the county building official has determined that no danger to public or private property is likely to result. However, the access road site is not isolated and self-contained because it will connect to a County street. There are also numerous residential buildings in close proximity to the site of the proposed access road. As noted above, the unpermitted grading work already performed at the site has resulted in a danger to both public and private property. Specifically, inadequate attention to the impact of heavy construction vehicles along Rancho Road created immediate traffic safety hazards for residents in the surrounding community. In addition, the lack of information concerning the geologic characteristics of the construction site and the lack of road design or drainage system design information placed the public at risk of harm from potential structural failure of the access road and associated risks to those using Rancho Road, the adjoining public street. Another exemption under Section 716-4.208 applies to access roads that lead to gas and electric transmission lines. However, this exemption does not apply to access roads that lead to reservoirs. County Authority to Require Payment of a Grading Permit Fee The County is authorized by State law to charge fees to EBMUD for inspection and plan check work related to the required grading permit. Government Code Section 6103.6 authorizes the County to charge fees for inspections “of work done in, under, on or about” any county street or highway. (Emphasis added.) The word “about” means “near” or “in the immediate neighborhood of.” The proposed access road would connect to Rancho Road, which is a County street. Because work will be occurring “about” a County street, EBMUD is not exempt from paying fees for inspections of this work. In addition to protecting the safety of those who use the proposed access road, the grading permit will also protect the safety of those traveling on Rancho Road by enhancing the safety of the connecting access road. Furthermore, the grading permit will ensure the impacts of additional storm water runoff generated by the access road are mitigated, reducing potential damage to the adjacent County road. The County is also authorized by Government Code Section 6103.7 to charge fees to EBMUD for plan check work related to the required grading permit. Government Code Section 6103.7 authorizes the County to charge fees “to defray the costs of providing plan-checking services to any applicant.” Government Code section 6103.7 authorizes the County to charge fees for providing plan-checking services regardless of whether the plans being checked are building plans or road plans. The County’s grading permit fees are not charged merely for the act of issuing a grading permit. Grading permit fees defray the County’s costs of providing plan check and inspection work in connection with grading permits. Grading permit fees, like building permit fees, are regulatory fees that are based on the value of a proposed project. The courts have held that permit fees whose amounts are based on the value of a proposed project are permissible regulatory fees, and may be used to defray the cost of performing inspections and a wide variety of other services. (See Collier v. City and County of San Francisco (2007) 151 Cal.App.4th 1326.) DCD has provided EBMUD a grading permit fee estimate of $15,576 for the proposed project. This amount was calculated by applying EBMUD’s stated project construction value of $363,400 to the formula for calculating grading permit fees stated in DCD’s approved fee schedule (attached). DCD estimates the value of staff time already spent on the Project exceeds half the estimated permit fee for the Project and significant additional staff time will be required to complete the plan check and inspection services required under the permit. DCD staff, including a Deputy Director and two Senior Grading Inspectors, have collectively spent over 60 hours on the Project at an average cost of approximately $150 per hour, equating to an estimated cost of $9,000 incurred on the Project to date. This staff time includes corresponding with EBMUD and its contractor concerning DCD’s permitting requirements for the Project, reviewing and commenting on proposed grading plans, attending Project meetings and preparing notices and reports. DCD estimates that at least 40 hours of additional staff time will be required to complete the grading plan check and inspection work required for the Project, given that plan check work on the project is not completed and permit inspections are yet to begin. The resulting total cost of DCD staff time associated with the Project will likely equal or exceed the estimated grading permit fee. EBMUD asserts that the grading permit fee amount is unreasonable because the project is being supervised by an EBMUD engineer, making detailed plan-checking by the County unnecessary. Under Ordinance Code section 72-4.008, an applicant may be excused from filing detailed plans if the work is being supervised by a certified or licensed engineer. However, this code section applies only if requested by an applicant and approved by the County Building Official. EBMUD did not make this request before beginning grading and the County Building Official would not approve this request, given the conditions observed at the project site and the failure to submit adequate grading plans. CONSEQUENCE OF NEGATIVE ACTION: If the Board of Supervisors does not affirm the County Building Official’s determination that a grading permit is If the Board of Supervisors does not affirm the County Building Official’s determination that a grading permit is required for the Argyle Reservoirs Access Road Project, then EBMUD will be able to continue grading approximately 3,700 cubic yards of soil and constructing the 515-foot paved access road without any County oversight and regulation of the grading project. CHILDREN'S IMPACT STATEMENT: Not applicable. CLERK'S ADDENDUM Speakers: Casey LeBlanc, EBMUD; Derek McDonald, EBMUD; Debbie Long, resident of El Sobrante; Bill Rogers, resident of El Sobrante; Holly Raboli, resident of El Sobrante. CLOSED the hearing; AFFIRMED the determination by the County Building Official that East Bay Municipal Utility District (EBMUD) is required to obtain a County grading permit and pay the associated permit fee for the Argyle Reservoirs Access Road Project; and AUTHORIZED staff to draft a letter for the Chair's signature to the president of EBMUD to facilitate more dialogue in the future. ATTACHMENTS Appeal from EBMUD Argyle Road vicinity map Zoning map Photos Argyle Road Letter from EBMUD Grading Plan Check & Inspection Fees Pinole ElSobrante S o b r a n t e A v e Appian Way Argyle Rd Shea Dr Circle Dr Andrews Way Heath Dr Sunny Ln A vis Way Galbreth Rd Hacienda Ln Owens Ct Rancho Vista St Bluejay Ci rN Rancho Rd N R a n c h o P l N Ra ncho CtRancho RdRancho RdR-10 R-7 R-6 P-1 R-7 M-12N-B M-17 M-29 430190004 Argyle Reservoir Access Rd Project - County Zoning 0 500 1,000250 FeetMap created 04/21/2014by Contra Costa County Department ofConservation and Development, GIS Group30 Muir Road, Martinez, CA 9455337:59:41.791N 122:07:03.756W This map or dataset was created by the Contra Costa County Department of Conservationand Development with data from the Contra Costa County GIS Program. Some base data, primarily City Limits, is derived from the CA State Board of Equalization'stax rate areas. While obligated to use this data the County assumes no responsibility forits accuracy. This map contains copyrighted information and may not be altered. It may be reproduced in its current state if the source is cited. Users of this map agree to read and accept the County of Contra Costa disclaimer of liability for geographic information.® 89:z Rancho Road facing East towards project site Project site viewed from Rancho Road Construction site intersecting Rancho Road facing West Construction site intersecting Rancho Road facing East