In a purely symbolic move on Tuesday, November 5, the Mendocino County Board of Supervisors discussed a “Right To Industry” ordinance that would tell anybody living near industrial activity in the County to just shut up about any nuisances the “industry” may generate.
The proposed ordinance is along the lines of the County’s controversial “right to farm” ordinance from the 1990s, which told people living near farms to grin and bear it.
The logic was, and is, “This stuff was here before you moved in, and if it bothers you, leave,” a gross oversimplification that sounds good to County’s ag “community.”
Tuesday’s proposal was accompanied by a fact-free backgrounder which alleges — without a single example — that people who complain about noise, smell, glare or other “annoyances” have effectively made Mendo into an industry-free zone, not only scaring away prospective businesses, but forcing existing manufacturing facilities to flee Mendo rather than face “overly burdensome” agreements to “change their operations.”
Unfortunately, the backgrounder, prepared by a young County Admin staffer named Brandon Merritt, was, so to speak, without merit because it provides no examples of industries or businesses which have run-off by neighbor complaints.
None of the supervisors asked for specifics or challenged these whoppers:
• “this ordinance is a reflection of historical challenges that manufacturing businesses and related industries have faced in Mendocino County.”
Actually, the challenges that manufacturing businesses and related industries have in Mendo are associated with shortages of employable people with the necessary skills, financing, and infrastructure — and in some cases the county’s extended permit review periods.
• “these businesses have often borne criticism from local residents or other businesses located adjacent to these industrially zoned districts. These grievances involve accusations that the manufacturers are producing excess noise, smell, light glare, and other ‘annoyances’ that are often the simple consequence of day-to-day industrial operations.”
Often? And why the quote marks around “annoyances”?
• “The criticism received by manufacturers located in industrial zones often results in a public nuisance complaint to the County about the annoyances that the resident, or business, perceives from the manufacturer. This in turn results in an investigation by the County and a fine to the manufacturer if the nuisance complaint is validated to be true."
Again, “often”? And if the County is so industry friendly, why would anyone worry about having a nuisance complaint validated?
In more than 20 years of closely following Mendocino County business and government, we’re not aware of a single case of a local business being fined for creating a nuisance. (There have been a few fines for violations of state air and water quality laws, but these are few and very far between and this ordinance wouldn’t apply to them.)
• “The more damaging outcome of this escalation of tensions between residents and manufacturers is a mediation process that often produces an overly burdensome agreement by the manufacturer to change their operations.”
Merritt himself was quick to point out that neighbors could still avail themselves of the (mythical) “mediation process” even if the new ordinance was approved.
• “In some cases, manufacturers have to uproot their place of business entirely and move to another location that is less disturbing to the local neighbors. In other cases, sound modification devices have had to be installed at a cost borne entirely by the manufacturer and to the tune of tens of thousands of dollars. In still other cases, certain manufacturing techniques have had to be eliminated, resulting in a manufacturing process that may be less efficient, less effective and at times less environmentally sound.”
We’re not aware of a local business moving their operations solely on the basis of neighbor noise complaints. For instance, neighbors of Martin Mileck’s composting operation in Potter Valley, had their complaints either passed along to the business for voluntary consideration or they were ignored.
• “Industrial operations and manufacturers who would like to do business in Mendocino County are often discouraged by local residents who have located themselves near to an industrial zone and who ardently object to any disturbance to their lifestyle.”
Even if this were true — and it’s not — nothing in the proposed ordinance would change anything. If an industrial outfit applies for a construction permit there’s the usual permit process with environmental reviews, announcements, hearings at the Planning Commission and the Board of Supervisors, etc. The “right to industry” ordinance would not change that, nor would it preclude “ardent objections” to the permit application.
• According to the ordinance proposal, nuisance complaints lead directly to “the hypothetical number of manufacturing jobs, in the dozens if not hundreds, that have been foregone because of a lack of public support for industrial businesses and manufacturers locating themselves in Mendocino County.”
Simply not true.
Not one example of any of these self-described “hypothetical” horror stories was offered and nobody on the board asked for one. We can only recall one category of “industry” that has been “ardently” objected to — gravel and asphalt plants — and again, nothing in this ordinance would change that because the objections are not nuisance complaints, although certainly during the permitting process various “mitigations” are proposed and imposed, even though they are seldom enforced or followed up on.
In fact, if nuisance complaints were the only problem facing existing or potential industrial operations in Mendocino County, we’d have lots more industry than we have.
Several Board members repeatedly pointed out that the proposed ordinance is primarily a disclosure requirement — as if trying to steer attention away from the “shut up” aspect of the proposal. But even that lead to long, stumbling discussions of exactly what it meant: Does it apply to both renters and property owners? Where do you measure the distance to the neighbor? Will it affect anyone’s ability to get a loan? Will property values go down; is it a “taking”? Etc., etc.
But the essential question — Why add yet another regulation when there’s no demonstrable need? — went unasked.
The closest we got to substantiation in the entire discussion was in Supervisor Carre Brown’s rambling introduction: “I remember there was Morgan Trucking which was close to Talmage Road and South State Street that was enticed by the Board of Supervisors at the time to go find another piece of property so it could move out of a heavily populated area.... Also, Reliable Supply, when they relocated out around Jensen’s Truck Stop on Feedlot Lane, that particular area, that was a business that also would fabricate steel for broken parts of machinery to get a mill or other industrial business back up and running, sometimes they would start and have to go all night to get that piece fabricated and I do remember when the phone calls started to come in and after, well it was apartment complexes moved in over the fence. So they had to stop working after 10 o'clock at night.”
Supervisor John McCowen, ignoring the “shut up” provision of the proposal, thought that the idea was a simple no-brainer: “It simply puts people on notice that they are contemplating purchasing land within 300 feet of industrial zoned property; then they are notified to that effect, and they could expect to be subjected to noise, light, glare or other things that are a normal part of industrial operations. It doesn't really place a significant burden on anyone. They just want people on notice when they are moving next to industrial zoned property.”
Supervisor Hamburg asked if the ordinance would really prohibit nuisance complaints by anyone in the 300-foot notification zone.
Deputy CEO Merritt, instead of simply saying, “Yes,” hesitated nervously, then replied that “the ordinance would waive an affected parcel owner’s ability to file a nuisance abatement complaint with the County. That does not waive their right to seek mediation services from the County or the board of supervisors or anyone else. But they do waive their right to put on a physical signed file, a nuisance abatement complaint, yes. That right is waived, a nuisance abatement complaint.”
Hamburg pointed out that no other counties in the state have such an ordinance, and only one small town in the Central Valley has one. Hamburg's sensible contribution to the discussion produced the day’s weirdest exchange:
Merritt: “The real trouble with this is the nomenclature. When I say nomenclature I am talking about including the word ‘right,’ or including the word ‘preference for,’ or even the fact that the county or the city has an ordinance on their books. However, what is much harder to find are a little more subtler [sic] versions of this ordinance such as a right to seafood.”
Hamburg: “Such as what?”
Merritt: “A right to seafood.”
Hamburg: “The right to seafood? [Laughs.] You mean to see food as opposed to not seeing it?”
Merritt (ignoring the question): “So you have all these iterations that are much harder to search for, a right to manufacturing, a right to business. Cities and counties may have versions of this that are much more subtler [sic] legal versions of this. This is telling up front to the residents of Mendocino County in very clear terms ‘Right to Industry’ whereas it's probably the board’s wish to not be more subtle about it so that people can actually know what it is they're talking about. So to me it's more of an expression of the Board's desire to —”
Hamburg wondered “if we are going after mosquitoes with shotguns. I want to support this. But there are just some things that kind of bug me about it.”
Supervisor Brown, seeing that Supervisor Hamburg had some reservations, lobbied in favor of the ordinance: “I want to remind everyone here that the GMO regulation— we were the first in the nation [to ban the cultivation of genetically modified organisms). There were farmers at the time who felt that was a taking… Years ago, when I went to Bakersfield for the first time, I was in an airport transport car heading to a resort for a conference; I had never seen so many mansions sitting around oil fields. It was quite breathtaking to me, the beautiful homes overlooking these oil fields…”
Ms. Brown went on to make the dubious point that with disclosure industrial enterprise and neighborhoods could co-exist and that even the wealthy owners of those operations could live side by side with their oil derricks. No problem.
Supervisor Dan Gjerde seemed to at least understand that an outright ban on complaints was a little much: “I trust that this is modeled after the Right to Farm ordinance in the County that the intent of the ordinance is to notify people. However, it doesn't necessarily waive their rights as I understand it. That is a clarification that needs to be brought back from staff. It's pretty clear that the intent is that they're being discouraged from bringing forward frivolous complaints about a neighbor, but there obviously needs to be a mechanism that they can bring forward something that is a violation — whether it's noise or water quality or whatever. It obviously needs to be investigated by the County. I guess that's a little unclear in my mind exactly how that works out in practicality. I hope that staff can clarify that before they come forward with this.”
This spawned another exchange between Hamburg and Brown.
Hamburg: “This is more than disclosure, though, right? It does actually involve the property owner or a — I mean, not only is there disclosure to the property owner that there is an industry in the vicinity whether it's 300 feet or 400 yards or whatever it is. But it also means that the property owner waives their right to file a nuisance complaint against an industrial use in that range of distance.”
Brown: “The example is that let's say a farmer is spraying sulfur. Okay? And the sulfur spraying actually goes off the property. That is a violation and they can be cited for that. And usually how that happens is when a neighbor complains. Neighbors don't lose their right to complain. It's too address frivolous complaints.”
Hamburg: “If I lived on an adjacent property and they’re spreading sulfur and sulfur comes on my property with the Right to Farm ordinance in place, can I file a nuisance complaint on my neighbor?”
Brown: “Yes you can. By calling the Ag Commissioner.”
Hamburg: “With the right to farm ordinance in place?”
Brown: “With the right to farm ordinance in place.”
Hamburg: “But this is kind of different because this takes away —”
Brown: “No! It's not. It really isn't. It doesn't supersede state law. So what a neighbor would do, and that neighbor may be agriculture as well, would phone the ag commissioner and the ag commissioner would investigate and many times when spraying, it is spraying season, you have your ag commissioner staff out there checking to make sure that the person next door does not lose that right. Because they are directed not to go off their property.”
Hamburg: “And how does that differ with an industrial drift? Say I'm an adjacent property owner and we have a Right to Industry ordinance and I am negatively, or I feel that I am negatively impacted by that industry, the Right to Industry ordinance is in effect, what is my recourse?”
Brown: “Okay, maybe we'll talk about air quality. If the air quality is, if you can smell something, but the air quality is well below the maximum level of pollution, it's a nuisance complaint that you're filing. So, therefore, this ordinance would protect the industry.”
Hamburg: “Because I as the property owner cannot file a nuisance complaint under this ordinance.”
Brown: “For something like that; sure, it could be investigated.”
Hamburg (exasperated): “Okay. I have to admit I am still confused. I am not getting something.”
Brown: “But it would not have to be abated.”
Supervisor Pinches wanted to know how renters would be affected?
County Counsel Tom Parker couldn’t just throw up his arms and say, “Got me!” So he laid on the legal blather: “In the ordinance as I understand its development at this point does not address that wrinkle you just raised by Supervisor Pinches regarding renters. Clearly the notice would not go to the renters as my office currently understands the proposed implementation options and the wording of the ordinance. This is a wrinkle which I think would arguably justify, if the board viewed it that way, a reason to follow Supervisor Brown's recommendation made earlier this morning of having staff take another look and answer various questions that have been raised by the board, but I — it's up to the board.”
Referring to the previously mentioned “mediation” option, Supervisor Hamburg asked: “Can you explain the difference between filing a nuisance complaint and filing a request for mediation?”
Parker: “I'll take it from a legal perspective. Mediation is what I would call an alternative dispute resolution.”
Hamburg: “And the county has staff ready to handle these mediation issues and step in and mediate between an industrial owner and themselves.”
Parker: “I'm not in a position to answer that.”
At something like $140k per year, he should be in position to answer that, but…
Hamburg: “I've never even heard of that process. Maybe it exists. I've heard of nuisance complaints. We have a nuisance ordinance. I don't know that I as a property owner living next to a factory, for one thing I'm not even going to, I mean, how am I even going to know there is a County mediator that I can go to? Is there a County Office of Mediation?”
Parker, again avoiding a simple “No,” replied: “I'm not aware of anything like that, no sir.”
Hamburg: “So what are we talking about?”
Merritt: “In the case of the Right to Farm ordinance, that responsibility falls every time on Chuck Morse, our County Agriculture Commissioner.”
Hamburg: “So who does it fall on in this case?”
Merritt (looking longingly to his right at Planning honcho Steve Dunnicliff for a fumble recovery): “In this case, when it involves a land-use dispute it would most likely fall on Planning and Building Services officials.”
Hamburg: “And they are ready to take this on? I just think there are a lot of questions that have not been answered about this ordinance.”
Planning Director Steve Dunnicliff: “The only comparison that I have at this time is often times there will be a concern that comes in from a property owner, a member of the community, sometimes it comes in through supervisors or the executive office, and we will engage. I'm not aware of any formal process or name for that. There are discussions that occur, however.”
Hamburg: “We've been throwing this around all morning, and it's kind of obvious that we don't really have it.”
After suggesting a few minor wording changes, increasing the proposed notification zone to 1000 feet, and inserting a question about how the ordinance might affect financing, Supervisor McCowen moved to have the staff tweek the proposal a bit and bring it back for more discussion on December 10.
We can’t wait.