HomeMy WebLinkAboutMINUTES - 06051990 - 2.8 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on June 5, 1990 by the following vote:
AYES: Supervisors Powers, Schroder, McPeak, Torlakson, Fanden
NOES: None
ABSENT: None
ABSTAIN: None
SU13JECT: Quimby Island Issues
The Board received the attached report dated June 5,
1990 from Harvey Bragdon, Community Development Director, relative
to alleged violations at Quimby Island.
John Nejedly commented on the need for more stringent
enforcement of regulations in the Delta area.
Supervisor Nancy Fanden inquired of County Counsel as to
whether the County has any authority to enact an ordinance to
protect this area.
Victor J. Westman, County Counsel, advised that there
are numerous Federal and State statutes and agencies with
jurisdiction in the area and it is his opinion that the Board' s
authority in this area is very limited.
Supervisor Fanden recommended that a resolution be
forwarded to the involved Federal and State agencies expressing the
Board' s strong support of enforcement of Delta regulations. She
also referred to a previous proposal for a creek patrol to report
violations, and requested a report on the proposal.
Supervisor Sunne McPeak referred to the attached report
from James L. Sepulveda, Deputy District Attorney, stating that his
department' s investigation disclosed no evidence of violations in
the Quimby Island area. She recommended that a meeting be held
with the Chair and affected departments to discuss the issues..
Board members being in agreement, IT IS ORDERED that the
following actions are APPROVED:
1. ACCEPTED reports relative to alleged violations at
Quimby Island;
2. REQUESTED County Administrator to schedule meeting with
Supervisors Fanden and Torlakson, the District Attorney
and the Sheriff to discuss the Quimby Island issues;
3 . REQUESTED County Administrator to determine status of
the proposal to establish a "creek sleuth" to patrol.; the
County' s waterways; and
4. DECLARED intent to adopt resolution requesting the
responsible Federal and State agencies to adopt
stringent monitoring and enforcement policies relative
to Delta regulations.
CC: County Administrator
District Attorney I hereby certify that this is a true and correct copy of
Sheriff an action taken end entered on the minutes of the
Community Development Director Board of Supervis on the date shown.
ATTESTED: E
PHIL B CHELOR p:terk of the Board
of Supervisors and County Administrator
Deputy
gE C
Tc BOARD OF SUPERVISORS
FROM: Harvey E. Bragdon • ; "_
Director of Community Development . •�-�'
. DATE , June 5, 1990
Reports from County Department's Regarding �osT_ - C1
SUBJECT; "1 COUK�
Violations at Quimby Island
SPECIFIC REQUEST(S) OR RECCMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
Accept reports from County Counsel and the District Attorney' s
Office on potential for legal action; and the Sheriff' s Marine
Patrol Services .Bureau on the extent of debris remaining in the
waterway off Quimby Island.
FISCAL IMPACT
None.
BACKGROUND/REASONS FOR RECOMMENDATION
On April 3 , 1990 complaints were received by the Board that
trees, bushes and other debris were dumped into the waterway from
Quimby Island during levee repair operations. Lt was reported
by the U.S. Coast Guard and the Sheriff ' s Marine Patrol that the
remaining debris (some floated downstream) had been removed and
subsequently burned on the island. Former Senator John Nejedley
and owners of ski shacks contend that some debris still .exists
beneath the water . surface.
This matter was heard before the Board on several occasions, and
was referred to various County departments. The Community
Development Department enlisted outside agency involvement and
reported to the Board on this issue; Building Inspection examined
pertinent building and grading ordinances for potential County
authority; the Sheriff' s Marine Patrol made many , of the initial
contacts and physically investigated the site on three separate
occasions; the District Attorney examined thea potential for
prosecution; and County Counsel considered possibilities of legal
action and potential for .County legal authority on levees.
a
CONTINUED ON ATTACHMENT' YES SIGNATUR ,
RECOMMENDATION OF COUNTY ADMINISTRATOR REC E TION OF B D COMMITTEE
APPROVE OTHER
SIGNATUREIS):
ION OF BOARD ON APPROVED AS RECOMMENDED OTHER
VOTE OF SUPERVISORS ,
a
1 HEREBY CERTIFY THAT THIS IS A TRUE
UNANIMOUS (ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN
AYES' NOES: ENTERED ON THE MINUTES OF THE BOARD
ABSENT; ABSTAIN: OF S VISORS ON THE DATE SHOWN.
CC: ATTESTED
PHIL BATCHELO . LERK OF THE BOARD OF
SUPERVISORS AND C TY ADMINISTRATOR
M382 7-83 BY DE
In addition, . .this . issue . was referred to the Board' s Water
Committee and the Delta Advisory Planning Council (DAPC) to
develop a process for better control and enforcement of
regulations in the Delta area. ;The Water Committee and DAPC are
already addressing these issues. The . Board also referred this ,
issue to the County Fish and Wildlife Committee for immediate
investigation, and to Supervisor_ Torlakson to pursue formation of
a "citizen-watch" type of committee with East County
organizations.
Outside agencies such as the U..S. Coast Guard, the Regional Water
Quality Control Board (RWQCB) , the California Department of Fish
and Game, the Army Corps of Engineers . and the Bay Area Air
Quality , Management ;District (BAAQMD) were contacted regarding
this matter. -..'The . Coast Guard originally pronounced the: site as
cleared, , requiring no more action on _their part; the RWQCB and
Fish and Game declared no jurisdiction in this matter as ,natural,
native materials were dumped, therefore current regulations do
not apply. The Army, Corps of Engineers admits, jurisdiction, but
has not, as yet, determined that a. permit for levee work was
required in this case. The Corps is still examining this
situation and will report further on this matter. The BAAQMD is
contacting the landowner in regard to current burn regulations,
and will attempt to, report. to the Board in writing prior to
June 5 1990.
2.
TO: Harvey E. .;Bragdon, Director
Community Devlopment Department
Attn- Roberta Goular.t
FROM: James L. Sepulveda
Deputy District Attorney
DATE: May. 23 , 1990
. SUBJECT: Quimby Island
In response to your memo of May 17., 1990, I will reiterate for
hopefully the last time that our investigation has not disclosed
any state law or- County Ordinance violations regarding the levee
clearing at Quimby: Island. Your. memo indicates that the Board has
"determined that ' significant evidence of a violation has been -
presented, . " What violation? what statute or ordinance?
My conclusion is that.there is no evidence of any violation! There
is simply no basis that I am aware of for the County or any other ,
government agency to take any action. If the County wishes to
-proceed without any legal basis to do so, then so be it. However,
this office prefers to abide by the. law.
CONTRA COSTA COUNTY,
COMMUNITY DEVELOPMENT DEPARTMENT
TO: Gary Yancey, District Attorney DATE: May 17 ' 1990
Attn: Jim Sepulveda FILE:
FROM: Harvey. E. Bragdon, Director
.By: Roberta Goulart, Planner
SUBJECT: Board of Supervisors Directiv
#ngolat' t
Quimby Island
During their May 15; .1990 meeting, the Board of Supervisors requested that a
letter be sent to the District Attorney's Office requesting the DA .to' closely
examine actions which the. DA's Office can initiate regarding prosecution of
violations at Quimby Island. Per Board request, this report will be combined
with reports from the Sheriff's Department and County Counsel to: become a
comprehensive report which will go before the Board on June 5, 1990..
The Board has determined that significant evidence of, a violation' has been
presented,and in the absence of other agency willingness to take action,, is
requesting DA input on methods by which this can �be accomplished through the
County.
HEB:RG:jal
j148:yan:mem
Sheriff-Coroner Richard K. Raley
.`Field Operations SHERIFF-CORONER`
Warren E.Rupf
1980 Muir Road Assistant Sheriff
Martinez, California 94553-0039
(415) 646- Gerald T.Mitosinka
Assistant Sheriff
To:
Lieutenant J. D. Sizemore Date: June '4y 1990 Rodger L.Davis
Central -Station Commander Assistant Sheriff
From: Sergeant Rod Carpenter subject:' 'Quimby Island Update
Marine Services Bureau DR 90-.2449
Review ,
On. Sunday, .April 1, 19901T I received a detail from Sheriff's Radio
because a citizen. was complaining about debris being dumped -in the
water at Quimby Island. At about 2:00 `p_.m. I inspected the island.
I left a message on the unmanned tractor to have the bushes and
tule which had been trimmed from the island be .removed from the
water. The U.S. .Coast .Guard checked the area the next day and said
the debris hadbeencleaned..up.
Within the next 10 days, I either called or -received phone calls
from a variety of persons and governmental agencies on the Quimby
Island matter. The persons who hold rights to the boat/ski houses
had been served notices of. eviction by the new landlord. The
boat/ski house persons called the Sheriff to report the dumping of
debris in, the water. The boat/ski house persons made a video
taping of the landlord cleaning. off the levee.
On Tuesday, April 10, 1990, I wrote Civil report #DR 90-2449. At
that time I concluded that the case was a civil matter and I still
feel that it is. • -The landlord is . complaining that the boat-ski
house people are. littering and maintaining sewage drops on his
land. There is debris/drops on his land. There is .debris/sewage
around and in 'back of the boat house apparently from the boats.
The landlord did clean the levee by scraping it into the water then
removing it. This process is used' on all the levees when they are
being cleaned. Presently, the Department of Fish & Game is working
with the reclamation districts to help. maintain and improve the
levees .for wildlife habitat.
Continued- Investigation
On Wednesday, April 25, , 1990, Roberta Goulart, County Community
Development Department Planner, accompanied Deputy Doug White and,
myself on a tour of Quimby Island . and the Delta levees. We
inspected some boat/ski house sites which . had debris and a '
makeshift toilet and dump. There was no debris in the water.
There was .a tractor pushing dirt on the inside of the island.
AN EQUAL OPPORTUNITY EMPLOYER
On May 16,. 1990 at 3 :30 p.m. , Sheriff, District Attorney, County
Counsel, Community. Development, and Fish and Wildlife Commission
personnel met to discuss the Quimby Island matter. Each agency
will submit their concerns and comments to the Board.
on Sunday, May 19, 1990, I met with Joe Roberts.,. 85 Moraga Way,
Orinda, CA 94563, (415) 254-8228, at his site #2 boat/ski house.
He and his son were cleaning up the building for summer use. There
was no landlord work being done. Mr. Roberts said that he; has had
one of the boat/ski houses for many years. He bought it from a
party who had it since 1959.
After several= attempts I was able to talk with Ray Peterson from
the Bay Area Air Quality Management District, 939 Ellis Street, SAn
Francisco, CA 94119, (415) 771-6000. • On Tuesday, May 22, ; 1990 at
about 2:10 p.m. j I gave Mr. Peterson information on the Quimby
Island. case and the ,report of .possible illegal burning. : He said
that his agency would look into the matter.
At my request, deputies assigned to Marine Patrol have been giving
extra patrol time to Quimby Island. . They have not observed any
illegal dumping. On Friday, June 1, 1990, -Deputies Fred Reno and
Wes Dodd observed a crew on a barge dismantling the most southern
of the boat/ski houses.
On Monday, June 4, 1990, at about 9:50 a.m. , I discussed the
burning situation with B.A.A.Q.M.D. Officer Andy McQueen. He said
that he was still investigating the burning matter.
Opinion/Conclusion
The land owners of the levees. must work with the Department° of Fish
& Game to work out a uniform way to maintain the levees. This case
has helped to bring the. problem into the open before ,it is drawn
into the courts. There are several problem areas which the County
has not addressed over the years. They include:
no permit requirements for dirt movement on islands. .
no permit requirements for boat/ski houses without . sewage.
no permits for levee work.
not all the islands are in fire district control.
I feel the ecology issue can be handled more properly through the
Department of Fish & Game and the various reclamation districts.
I think the County should resolve its support to this issue.
RC:rk
cc: Roberta Goulart, Community Development
i
BAY AREA AIR UALITY
MANAGEMENT DISTRICT
Nancy Fah.den May 25, 1990
ALAMEDA COUNTY Chair, Board,of.Supervisors.
Edward R. Campbell Contra Costa County
Shirley J. Campbell
(Chairperson) 651 Pine Street', Room. 106
Chuck Corica Martinez CA 94553 - '
Frank.H Ogawa +
CONTRA COSTA COUNTY
Paul L. Cooper Dear Ms. Fanden;
(Secretary)
Sunne Wright McPeak
Tom Powers This is in'response to.your letter dated May 16, 1990 regarding an alleged
MARIN COUNTY . illegal fire on Quimby Island on April 1, 1990.
At Aramburu
NAPA COUNTY Our agency-received-nocomplaints or Information regarding this matter.
Bob whoa
However,.-folio
wing receipt of your letter, contact was made with the Contra
SAN'.FRANCISCO COUNTY Costa County Sheriffs Department, Bethel Island Fire Department and the
Harry G. Britt
Jim Gonzalez U.S. Coast Guard to find if any incidentreports had been filed regarding fires
SAN MATEO COUNTY on Quimby Island. It was found that although the Sheriffs Marine Patrol and
Gus J.N colopulos the U.S. Coast Guard.had responded, on.two separate dates, no actual fires
Anna Eshoo Were observed, therefore no incident reports are available. Quimby Island is
SANTA CLARA.COUNTY . not under the control of a fire district, but is in the sphere of influence of the
Martha Clevenger Rod Dnidon Bethel Island Fire Department. Bethel Island Fire Department will. respond to
Roberta H Hughan fires on Quimby Island if needed. They were not aware.of a Quimby Island
Susanne Wilson
fire on the date in question.
SOLANO COUNTY
Osby Davis.
(Vice Chairperson) We would like to state that we have received the utmost in cooperation from
SONOMA COUNTY the Contra Costa County Sheriffs Department, Bethel Island Fire Department
Jim Harberson and the U.S. Coast.Guard. Our a can, and will, take.enforcement
Patricia Hilligoss agency
action on the basis of incident reports generated by those agencies.
Further, the Enforcement Division of the BAAQMD, now being aware that
potential problems exist on Quimby.Island, will make an effort to more
closely observe that site for violations of our regulations.
As to your concern of jurisdictional authority. The BAAQMD has authority
over illegal burning within our district, in which Quimby Island lies. As a
matter of record, enforcement action was taken regarding a fire on Quimby
Island on October 16, 1985. It is our understanding that ownership has
changed since that time. The name and address of the present owner was
obtained through the County Sheriffs Department. The owner will be notified
by the BAAQMD of our regulations regarding open burningn and the
consequence should those regulations be violated.
The BAAQMD is,anxious to participate with your board in. a program that
would enhance air quality. Please notify us if you feel that we can be of
further assistance.
rely,
Ja s R. Gut ne
actor of Enforcement
RP:Ija
939 ELLIS STREET SAN FRANCISCO, CALIFORNIA 941(t9 (415) 771-6000• 'FAX (415) 928-8560
2.8
OFFICE OF COUNTY COUNSEL
651 Pine Street, 9th Floor
Martinez, California 94553
646-2074
Date: June 5, 1990
To: Board of Supervisors
From:. Victor J. Westman, County® ounsel
subj: Quimby Island Reclamation District Levee Vegetation Stripping and
Related Delta Waterways Dumping
You have asked this office (and other County departments and offices) to
further review the above—noted matter and report on it. This office's report
follows:
I. Prosecution of Any Statutory Violations. The Board has received
complaints about levee bank vegetation stripping activity, apparently undertaken'
by (or on behalf) of Quimby Island Reclamation District No. 2090. These
complaints have also been directed to disposal of some of the stripped vegetative
material into the adjoining Delta waterways.
While these activities on their face seem to violate some state and federal
statutes and related regulations and/or otherwise..require. permits from some of
these state agencies, the agencies have indicated they do not propose,to exercise
their prosecutorial discretion and pursue violations (if any) of ..involved state
or federal regulations for various reasons (jurisdiction has not been previously
asserted, violations [if any] are not significant, limitations on current staff
to pursue this type of corrective activity, etc.).
You have asked this office if the County. has any legal recourse to compel
involved state or federal agencies to exercise their discretion and pursue the
prosecution of violations that may have occurred due to the Quimby Island levee
stripping activity. This office is not aware of any judicial remedy available
to the County to require state or federal agencies to exercise whatever
discretion they may have to prosecute any such violations. Of course, the County
may use any means available to it to attempt to persuade these agencies to
exercise their authority in this area. The Community Development Department's
report before you and its prior reports on this subject chronicle the staff
contacts made with various federal and state agencies and their responses.
II. County Grading Ordinance Application. This office has been asked
to comment whether the County's grading ordinance may be made applicable to this
levee vegetation stripping activity. The County's grading regulations are
------------
June 5,, 1990
Memorandum
Board of Supervisors
Subj: Quimby Island Reclamation District Levee Vegetation Stripping and
Related Delta Waterways. Dumping
contained in Division 716 of the County Ordinance Code. Present provisions of
Division 716 :exempt from its application activities for the construction, repair
and maintenance of levees performed by or for a governmental agency (reclamation,
irrigation, water, or flood control district - Ord. § 716-4.206(3) and (4);
also-, see Ord. C. § 16-4.022). Also, Division 716's, definition of regulated
grading activities would not appear to _include the cutting and removal of
vegetation alone, whether on a levee or Iany other land located within the
unincorporated area of the County. Of course, where Division; 716 is applicable
because its thresholds. for soil or rock removal or placement are met, the
ordinance on its face would apply absence an exemption provision (e.g. , levee
work).
The extent to which one public agency in 'California .may regulate another
public agency's activities has been a difficult legal question. In part for this
reason, the Legislature added Government Code sections 53090-53096.5. These
Government Code sections generally allow the county to require a special district
(such as a reclamation district) to comply with the County's zoning and building
ordinances (Govt. C. § 53090 & 53091). For the purposes of these provisions, .
building activities include regulating the building and construction of buildings
and structures. Based on our recent cursory review of this area it would appear
that a levee is arguably a structure. Also, we looked at the provision in the
Water Code (§§ 50000, et seq.) concerning reclamation districts. In those Water
Code provisions there is no express statutory provision excepting reclamation
district activities from the application of .any county.'s building regulations
allowed by Government Code sections 53090 and 53091.
Before attempting to assert any jurisdiction in this area, we recommend
that the County should first satisfy itself that present regulation of the
construction and maintenance of levees in the Delta is not being adequately
performed by the public agencies having primary responsibility for that activity.
We express concern on this point since the establishment by the County of
standards for levee construction and maintenance may expose. it to substantial
potential financial liability if such regulations are not adequately .enforced
(Morris v. County of Marin [1977] 18 C.3d 90.1). In addition, if the Board wishes
to pursue this subject further, it should probably undertake some sort of review
or investigation of whether an additional layer of regulatory restrictions is
required in this area and first consult those agencies having primary authority
for their views.
2
June 5, 1990
Memorandum
Board of Supervisors
Subj: Quimby Island Reclamation District Levee Vegetation Stripping and
Related Delta Waterways Dumping
We are available to provide whatever further assistance the Board may
require in this area.
cc: Harvey Bragdon, Community Development Director
Attn: Roberta Goulart, Planner
Robert Guise, Building Inspection Director
Joe Tonda, Risk Management
VJW:pr
.AT C:qutmby.vjw
3