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A Simple Lot Split

You might think that an ordinary lot split proposal in Yorkville wouldn't require too much in the way of furrowed brows from our Board of Supervisors, but this is Mendocino County and nothing is as simple as it seems. This is the story of one family with 144 rural acres who desire only that they make legal their desire to house dad and his three sons — three homes on 144 acres. One would think that purely on family values grounds the Mark family's request would sail on through Mendocino County's obfuscating process…

The Agenda Item Description for the January, 20, 2015 Board of Supervisors meeting is appended below.

Board Chair Brown kicked off the lot split request by asking newly seated Supervisor Tom Woodhouse and Supervisor Dan Gjerde if they had listened to the tape of the prior board meeting in December when Mr. Mark’s lot-split proposal had been considered but tabled because Gjerde was absent and Woodhouse was not on the Board of Supervisors at the time.

Woodhouse said he was in the audience at the time and had studied the proposal and was familiar with it. (The 3rd District supervisor is off to a conscientious start.)

Gjerde: “I would like to ask County Counsel if I’m required to listen to the tape of the earlier meeting.”

County Counsel Doug Losak: “Because this is an administrative — or this is a legislative action and not a quasi-judicial — you are not required to actually listen to the tape. They can make decisions without that.”

Brown: “What you are telling me is legally we need to go back through the public hearing process in its entirety?”

Losak: “No, that's not — they can make a decision. They can vote on the matter without having, you know, being present at the original hearing.”

Supervisor John McCowen: “Madam chair, [referring to Losak] I believe that's contrary to statements he made at the original hearing.”

Losak: “It is, Supervisor McCowen. You are correct. I've researched the matter a little further and found out that there is a distinction between quasi-judicial and administrative hearing matters and the distinction is simply that they do not have to — here for administrative matters, they do not have to be present to be able to vote on it. Just be familiar with the item.”

* * *

Brown: “County Counsel, since we are going through this process we need to go to staff? Because the regular hearing process, I think we closed the public hearing at the last meeting. So you need to tell me what the legal procedure is.”

Losak: “I just want to be sure… The legal — the hearing, the public hearing was closed at the last meeting and looking at the board agenda, what I'm saying is that the chair opened the public hearing. And I'm trying to recall if the actual public hearing was closed after the last one [turns to Planning staff]. It was. Okay. So at that point you can simply go to staff and the board and address the item and ask that. The procedure is if it was, if the public, the public hearing was closed you can proceed from there.”

Planner John Speka: “Correction: In the agenda summary we do reflect that at the last meeting the board decided to hold the — to keep the public hearing open.”

Losak: “Okay. Thank you.”

Brown: “So the public hearing was left open. Okay.”

Staffer John Speka described the proposal and the several prior meetings to consider it as it wended its way past both the Planning Commission and the Supervisors. The application for just the rezone was first submitted in 2012!

The Planning Commission recommended approval of the project in March of 2014 based on a “mitigated negative declaration.” There was also a question about whether a “Joint Management Agreement” should be applied to the project. Apparently the property owner, Mr. John Mark, gave the County reason to think that subdivision would ensue if the property was rezoned to allow a couple of smaller parcels, which is why a Joint Management Agreement was considered. “However that's [the Joint Management Agreement] not been requested at this point,” planner John Speka said.

Supervisor McCowen pointed out that although the Planning Commission had voted 4-3 to approve the application, planning staff had originally denied it.

Planner Speka said that they had denied it because of the possible need for a Joint Management Agreement to keep the original parcel and its parts in ag preserve under the Williamson Act (which provides a tax break for promising to keep land in ag status) being in place prior to any consideration of subdivision. “Without a Joint Management Agreement being required prior to the contract rezone we felt that it was not appropriate.”

Then there was some back and forth about whether the management agreement needed to be in place prior to the rezoning or later when Mr. Mark actually proposes to subdivide. (At present Mr. Mark only wants to rezone, the first step toward subdivision.) “The purpose of the management agreement would be to make sure that the land retains ag preserve status,” added Mr. Speka.

Maven Mark, one of applicant John Mark’s three sons, owns part of the land. He explained that at present with only one legal parcel they can only build two residences on the 144 acres. They hope to build one more residence by making the zoning change and later subdividing. Mr. Mark explained that they only need a split for two parcels so they can build a total of three houses.

Planning staff pointed out that there is a provision in state law that allows for smaller parcels to remain in ag preserve, but it requires a Joint Management Agreement.

Supervisor McCowen balked. “The applicant has made it clear from the beginning that his fundamental interest was being able to subdivide the property. Smaller units, more houses. The odds that it goes out of ag production increase in my opinion. We have established that we have no ability to keep the property in ag production or in ag preserve.”

Speka: “If he did not keep it in ag preserve, once he was under a Joint Management Agreement contract there would be a rollout phase.”

McCowen: “It is more protective of preserving the ag resource to preserve the larger parcel for what is clearly marginal land most suitable for rangeland. There are small sections of the property that could support some vineyard development but the real interest here is subdivision, not ag production. Because every acre that could be planted to grapes now could be done.”

Woodhouse said he supported the lot split because he supports letting responsible landowners make changes they feel are necessary. Gjerde said he supported the lot split because he believed that they really did mean to maintain the ag status of the property after the split.

McCowen leafed through some letters which he said were from four neighbors who were opposed to the change. “They prefer to uphold the rural ag character of the neighborhood. Mr. Marks obviously wants to join the trend towards smaller and smaller parcels, drive out ag, make it harder for the ag producers to stay in business. That's going to be the long-term result of this. It was approved by the Planning Commission on a 4-3 three vote following a three-year campaign of lobbying. This board has been lobbied and we have set the road mark for how you bust the General Plan. So I will not support it.”

Chair Brown cited her credentials as a rancher and farmer and former representative of the local Farm Bureau and her efforts to preserve agriculture. She also pointed out that she was aware of other individuals with similar proposals regarding their children who were denied by the Planning Commission and the Board of Supervisors. “I hate to see the breaking up of our grazing land, so I will be in agreement with Supervisor McCowen’s position.”

The board voted 3-2 to approve Mr. Mark’s rezone, McCowen and Brown dissenting.

* * *

Agenda Item Description for the January, 20, 2015 Board of Supervisors meeting:

“On March 14, 1997, the Board of Supervisors denied General Plan Amendment and Rezone #GP 1-90/R 1-90 and #GP 12-90/R 27-90 to change the designation of the subject parcel to Remote Residential-40 acre minimum/Upland Residential-40 acre minimum (RMR-40/UR-40) and approved an Agricultural Preserve, #A 7-96. The item was originally set to be heard on December 2, 2014, but was continued to December 16 in order to provide the Board with additional information. On December 16, 2014, the Board of Supervisors (Supervisor Gjerde absent) held a public hearing on the request, opting to have the hearing remain open and continued to January 20, 2015, in order that the absent board member and potential tie-breaking vote be provided an opportunity to participate.

“Summary Of Request: The property owner requests that the Board of Supervisors amend the General Plan Land Use Classification of a 144 acre parcel in the Yorkville area from Rangeland-160 acre minimum (RL-160) to Agriculture-40 acre minimum (AG-40) and adopt by Ordinance a Rezone of this parcel from RL-160 to AG-40. The parcel is located at 32301 Highway 128, Yorkville (AP# 049- 370-63) and is subject to an Agricultural Preserve contract. On March 20, 2014, staff recommended the Planning Commission approve a contract rezoning with the land use amendment to require a Williamson Act Joint Management Agreement (JMA) if the property is subdivided in the future. This was based at least partly on the property owner’s early indication that a subdivision would eventually be sought following the amendment to have the property divided among heirs. The Planning Commission recommended, on a 4-3 vote (the split involving the requirement of the noted JMA), that the Board of Supervisors approve General Plan Amendment #GP 1-2011 and Rezoning #R 1-2011 to grant the request without the contract rezoning. Their [Planning Commission] recommendation is based on finding that the project would not have any significant environmental impacts, the changed land use designation would be compatible with surrounding land uses, that the zone change would be consistent with the new land use classification, and that the contract rezoning is not necessary as uniform application of the County’s existing subdivision regulations will require a JMA if the property is subdivided in the future.”

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