Eighteenth century judge and philosopher Charles de Secondat Baron de Montesquieu is credited with first developing the concept of the letter and the spirit of the law. He would doubtless be intrigued by today’s 21st century conundrum of whether to ‘pay or not to pay’ county building permit fees for fire victims rebuilding their homes. Is it codified in law? If so, what exactly does it mean? What is its intent?
The Mendocino Board of Supervisors decided in its wisdom that to pay even partially for these permit fees (which typically run thousands of dollars), despite the federal-and-state-declared emergency declarations following 2017’s catastrophic fires, would amount to “making a gift of public funds,” a practice they claim is verboten by state statute — the letter of the law. A portion of the state statute that most directly addresses this matter appeared recently in this paper and, like all laws, is open to interpretation — in this case an interpretation that is either not shared outright or shared for purely financial reasons by Mendo’s surrounding counties. Nobody else even mentioned a gift of public funds.
So can counties legally reduce those permit fees for fire victims or not? How literal is the law that appears to apply to this matter, and what is its actual intent?
The issue of building permit fee waivers or reductions is a tiny part of the complicated federal/state/county/private network that plays many roles in disaster recovery. In a nutshell, once the president declares an area a major disaster at the request of the state’s governor, the feds (in the form of FEMA) step in to establish coordination between state and county governments. FEMA provides a one-time cash payout to burned-out homeowners, trailers for temporary housing (for a maximum of 18 to 24 months), low-interest loans, the lion’s share of infrastructure rebuild costs, and a host of other services.
FEMA’s role is one of initial support immediately following a disaster proclamation. So when FEMA and its funding inevitably pack up and leave, the state assumes some responsibilities; but in the end many things roll down to the counties — to where we live. Here is a snapshot of what our neighboring counties had to say about waiving or reducing building permit fees.
Napa County Director of Building, Planning, and Environmental Services David Morrison told me that Napa County supervisors took a look at the legality of reducing permit fees for fire victims and decided that it is entirely legal to do so. “We looked at state statutes [but] the basis of rebuilding doesn’t cost us as much because we’re not building from scratch,” he said. Because we’re not starting at the beginning [of initial construction], there were efficiencies that allowed us to reduce fees.” Morrison added, “On average there’s about a 30% reduction for anyone whose house burned down as a result of the 2017 [Napa Complex] fires.” A list of permit fee reductions on that county’s website shows that many fees were reduced by as much as 50%, while some were eliminated entirely. The county’s supervisors found a way to do it, with no mention of legality. For Napa County it was more a matter of balancing the books and setting priorities than a fixed interpretation of a state statute. It went to intent — the spirit of the law. “We lost almost 700 homes,” he said. “Half the people were underinsured through no fault of their own. Some policies did not cover the extent of the damage [because] they were made for individual house fires” (which typically cost less to rebuild than those in a multi-home area where houses burn to the ground). Morrison added that prices were further pushed up by the supply and demand of architects and contractors. “Some are backed up 4 or 5 months,” he said. As for the spirit of the law, he said that reducing fees is one way to give fire victims a break and get members of the community back in their homes as soon as possible. “Their kids go to our schools, they shop locally, we care about our fellow community members,” he said.
“We’re a strapped county and couldn’t reduce them,” said Lake County District Five Supervisor Rob Brown of the permit fees. “If you reduce them you risk losing state and/or FEMA funds.” Brown told me that Lake County, one of the poorest in the state where some 20% of residents live below the federal poverty line, reached out extensively to nonprofits and others for grants to provide funds for rebuilding fire victims’ homes. He said that one grant alone for $4.6 million was key to rebuilding homes for 30 to 60 people in Lake County at no cost to them. “It’s a patchwork of solutions,” he said, adding that Lake County supervisors just recently voted to cut by half the space requirements for homes so that residents could receive funding for smaller houses. “We also just made a pitch in Sacramento for more funds,” he said, adding that his poor county was squeezed particularly hard by the fires since at one end fire victims still pay most of the same taxes while at the other end the county has lost revenue. “Every nickel counts,” he said. “We don’t have a lot of money but we have expertise,” he said. “Nobody sat in a corner. We’re still in the air so we have to keep moving.”
It would be easier to crack Fort Knox’s bullion repository than break out of Sonoma County’s rabbit hole of a phone tree, though after many messages I did eventually get a callback from Maggie Fleming, Public Information Officer of Sonoma County’s Permit Sonoma. She told me that its director, Tennis Wick, was in Butte County assisting recovery efforts there and was unavailable for an interview, but she did email a message summarizing the county’s position on building permit fees. Like all counties, Sonoma County offers a smorgasbord of services for immediate and temporary housing for fire victims but relies on federal funding and a patchwork of mostly small private and nonprofit grants for help in actually rebuilding their houses. Relatively rich Sonoma County flip-flopped on its permit fee issue, initially passing a resolution to waive permit fees entirely after the 2017 fires. But once it received a federal disaster proclamation supervisors reversed that decision a month later because, like Lake County, they feared a reduction in federal aid if they did so. “FEMA essentially said, ‘Well, if you’re able to waive fees for fire a survivor that means you have enough money to cover other costs,” Wick said in an interview with the North Bay Business Journal. In the short email summary Fleming sent me, shortening wait times to “deliver quick, time certain permit turnaround times” was pledged as a means of ultimately reducing rebuilding costs for fire victims — the time is money philosophy.
Trinity County is not an apples-to-apples comparison because it is too small to receive federal disaster assistance even in the case of this summer’s Carr fire, where a third of the fire was in Trinity County. Much larger Shasta County received the federal disaster designation. Trinity County Director of Transportation Richard Tippet called this a matter of “geopolitical boundaries,” which basically means a county has to lose at least 400 houses in a disaster to qualify for FEMA assistance, too high a bar for rural, thinly populated Trinity County. Tippet also theorized that a lot of elderly fire victims simply moved away to places with more services.
So back here in Mendocino County, is there a possibility that county supervisors might revisit the permit fees issue and cut fire victims a break in this way? Fire victim-turned-activist Wendy Escobar of Redwood Valley has so far collected over 300 signatures of county residents who believe the fees should be lowered or eliminated altogether and she presented the petitions at the most recent supervisors’ board meeting.
Escobar told me that after the meeting she got a call from First District supervisor Carre Brown, whose district covers the 2017 fire footprint. Escobar said that Brown told her the permit fees would be discussed at one of two scheduled supervisors’ meetings in December. But when I called Brown to ask her about it she said that board discussion of reducing building permit fees, if addressed at all, would be part of the board’s regular, twice-a-year discussion of the county’s master fee schedule. “I don’t know what will happen,” Brown said when she called me back. “I think our board took a strong stand on not taking the fee issue further.” She also said she didn’t really know where the “gift of public funds” concept originated.
As abstract as a lot of this seems, real people are on the receiving end of county policies like how much building fees cost. Poor county residents need every bit of financial help they can get to get back on their feet and into permanent housing.
Redwood Valley resident Carla Gutierrez is living in a FEMA trailer with two of her six kids on the land where her house of 25 years stood before the fire. Widowed and disabled, she told me she was forced to drop her home insurance when she lost her preschool teaching job after 18 years. Her one-time FEMA payout is nowhere near what she needs to rebuild any kind of permanent dwelling. “I can’t afford to buy a modular,” she said. “Maybe I could do a down payment but [then I] couldn’t afford to make payments.” She says she’s hopeful that somehow more grants will become available, like from Hope City, which she said is similar to Habitat for Humanity. She knows, of course, that reducing permit fees alone will not provide the wherewithal to rebuild her house. But when you’re counting every penny, every little bit helps. Meanwhile she’s counting down the last months she’ll be able to keep her FEMA trailer, getting food from the local food bank, getting clothes from garage sales, and hoping that something will somehow come through so she can at least get a foundation for the house she plans to build someday. “My grandma taught me not to let myself get down because it’s so hard to get back up again,” she said.
So it looks like Mendocino County could legally reduce its building permit fees if it has the will to do so. Outside of Mendo, not one of the neighboring counties I either spoke or corresponded with concluded that building fee waivers or reductions would be the illegal “gift of public funds” that Mendo’s supervisors claim them to be. One county (Napa) did look at potentially running afoul of state law but, confident in its interpretation of both the letter and the spirit of the law, reduced its permit fees by an average of 30% and as much as 50%, with some fees waived entirely.
Those counties that ultimately chose to keep the fees as they are did so because they feared the consequences of the loss of federal or state funding, not because they thought that do so was against state law. So it appears that nothing is legally preventing Mendocino County from waiving or reducing its building permit fees for fire victims. All it needs is the determination and the political will to do so. Long term, it would be in the supervisors’ best interests to reduce those fees so that fire victims, in this small way, can get back on their feet and stay in their communities. Supervisors in turn would also gain some much-needed public good will by giving fire victims a break. We elect them, after all, and the county is where we, our families, and our friends and neighbors live. Imagine how different public reaction would have been had supervisors taken the high road and voted to donate their exorbitant 40% salary increases to helping their struggling constituents instead of feathering their own nests.
When Lightning Strikes Thrice
Art and Denise Barclay were sound asleep when one of their neighbors on Fisher Lake started pounding on their door in the early morning hours of October ninth of last year to warn them to flee for their lives — in fifteen minutes. As they stepped out into the dark they saw a glowing wall of fire moving toward them down the hill behind their house. By the time they left — within those fifteen minutes — embers were raining down on them from the Redwood Valley Fire, which ignited the evening before. Their teenaged grandson was living with them at the time and everybody grabbed what was most essential in those panicky few minutes: PlayStation and school stuff for the grandson, uniforms and other things Art needed for work (he works as a county bailiff in Ukiah), and the animals, which Denise managed to corral and somehow get in the car.
Fortunately, they had a pre-arranged escape plan — just in case something like this ever happened. “My wife packed up the animals (five dogs and three cats) and I drove the motor home so we’d have someplace to live,” said Art. Which is where they lived for four months in Ukiah before moving their motor home back to their Fisher Lake property. They returned to a scene of total devastation, though in retrospect they say they’re luckier than many fire victims.
First, everybody got out OK, and second they had recently refinanced their house for a remodel, which both provided them with an accurate appraisal and required more homeowners insurance — which in turn provided them with enough to rebuild their house from the ground up. “We had proof of what it was really worth,” Art said.
I asked them if they were afraid that a fire could wipe them out again in the future. ‘Not anymore, everything’s done!” Denise said, gesturing to the blackened hill behind them and its charred sticks of burned trees. But another tragedy awaited them a little more than six months later. Their son-in-law was shot and killed in a neighbor’s home in Santa Rosa as he tried to protect everyone else in the house by barring the front door against a man who had driven out from Colorado to shoot and kill his ex-wife, who wasn’t even around at the time. Their daughter and her two adolescent sons still struggle with his sudden, tragic murder.
Finally, topping out this year so far with yet a third tragedy, Art’s cousin lost her home in the recent Camp Fire in Butte County. But life goes on. The Barclays say they’re looking forward to moving out of their cramped motor home and into their new home after the first of the year and hope that this year’s history won’t repeat itself in 2019.