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Extracted from Consolidated Report

This investigation was originally published as part of a larger consolidated report containing multiple investigations. View the consolidated PDF for the complete document.

Napa County Grand Jury • 2001-2002

Note to Respondents General The legal requirements for response to Grand Jury findings and

Published: June 10, 2002 104 pages Consolidated Report
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Findings 9 findings

F1
The Grand Jury finds it repugnant that an entity of Napa County sued the County itself. The taxpayers of the County and of American Canyon funded this litigation; American Canyon residents were taxed twice, both as citizens of the City and citizens of the County. Both bodies should have instructed staff to meet and consult until the need for litigation was resolved. The Napa County Board of Supervisors (“the Board”) and the American Canyon City Council (“the Council”) should have given way to the common good.
F2
The Board seem to be content to operate on a "status quo" basis with an invalid Housing Element, an invalid General Plan, and an invalid 1998 Airport Specific Plan (see October 26, 1992 letter from Deputy Director of Department of Housing and Community Development in Attachment). BACKGROUND The participants in this lawsuit seem to have had various reasons for filing suit. Citizens for Honest Government was a small organization unhappy with the Napa County Board of Supervisors; the Sierra Club was concerned about environmental issues near the Airport; and the City of American Canyon was embroiled in a long-standing dispute with Napa County. This dispute arose as a result of the incorporation of American Canyon in the early 1990's. When the City incorporated, it resulted in a net loss of revenue to the County's tax base. The incorporation greatly reduced Napa County's intended new housing base which was part of the Housing Element of the 1983 General Plan as amended in 1986. The County had planned to authorize the construction of new houses in south Napa County to meet its state and regional obligations for housing, including low-cost housing. American Canyon's incorporation resulted in a loss of new housing area to meet the County's housing obligation. Throughout the years following the incorporation, there had been additional skirmishes between American Canyon and Napa County. American Canyon has been unable to obtain a Rural-Urban Limit for growth purposes. There has been little cooperation from the County in responding to legitimate requests from American Canyon. The City's joining in the suit against the County regarding the Airport plan was a further attempt to get the County's attention. In 1999, the Napa Superior Court (the "NSC") ruled that the County’s 1998 Airport Industrial Area Specific Plan (the “Plan”) was invalid because the Environmental Impact Report (the "EIR") that had been prepared to assess the Plan's impact was deficient in its consideration of the Plan’s impacts after buildout upon traffic, housing and steelhead trout. The 1998 Plan was an updated version of the County’s 1986 Plan for the airport area, with more specific and comprehensive “industrial park” design, improvement and density standards. The NSC also held that the 1986 Plan, which the 1998 Plan superceded, remained valid and that the County could continue to process and approve projects in the airport area which complied with the earlier standards, while the County worked to correct deficiencies in the 1998 Plan and its EIR. This latter portion of the NSC’s decision was not appealed. The County appealed the invalidation of the Plan. The appeals court in San Francisco (the “Court”) in a published opinion, affirmed the NSC’s decision. The County asked the Court to reconsider its decision and was denied. The California Supreme Court declined to hear the County’s appeal. Several significant issues of “first impression,” not previously ruled upon in California environmental law, were decided by the Court. First, the County could properly decide to delete certain traffic mitigation measures adopted as part of the 1986 Plan, which the passage of time proved were infeasible. The 1986 Plan called for traffic interchanges to be build at the intersection of highways 29 and 221 at the south end of the Southern Crossing bridge and at the intersection of highways 29 and 12 at Airport Boulevard and Jamison Canyon Road. The 1998 Plan deleted these improvements as a required element of Plan buildout because: (1) the contribution of project traffic to congestion problems caused by other traffic using these roadways was “minor”; (2) the County lacked the funds to implement these very costly improvements (perhaps $70 million); and, (3) the County did not control the design, approval and construction of these State highway improvements; Caltrans did. These were legitimate reasons for County to conclude these improvements were “infeasible.” Evidence supported these reasons. Changed circumstances over time allow a county to delete or modify project mitigation measures previously adopted. They are not cast in stone. Mitigation measures to minimize significant environmental effects, such as traffic, are “infeasible” if they cannot be accomplished within a reasonable time, taking into account economic, environmental, social and technological factors. Secondly, the Court concluded that the 1998 Plan EIR adequately identified traffic impacts from the airport industrial area and mitigation measures, even though the only mitigation it required was funding an area traffic study, not funding the actual improvements if the study concluded they were necessary. Mitigation measures must be roughly proportional to the impacts of a project. Since there was evidence that project traffic impacts were a “minor” contributor to area traffic problems, funding the costly improvements was not proportional and therefore did not require mitigation. The County will continue to impose a traffic mitigation fee on plans for area development, which so far has raised more than $2 million for internal roadway improvements. Third, the Court held that the EIR contained an adequate discussion of housing impacts and mitigation, but that its discussion of significant impacts due to water availability and wastewater treatment was not adequate. Since preparation of the EIR American Canyon has constructed its own sewer plant and there is capacity to service the Plan area (American Canyon south of Fagan Creek and Napa Sanitation District north of Fagan Creek). American Canyon has also contracted with Vallejo for extra water and, according to the Napa Flood Control and Water Conservation District, is in good shape for both short and long-term water supply. Finally, the EIR failed to adequately consider project impacts on steelhead trout in the Napa River. The County unwisely elected not to amend the Plan EIR to discuss this and incorporate necessary mitigation (stream setbacks, riparian cover, prevention of siltation/sedimentation). Aside from finding these deficiencies in the EIR, the Court also held that the 1998 Plan was invalid because it was in conflict with the County’s General Plan. The General Plan is the highest and most authoritative document in the hierarchy of County plans and ordinances. All specific plans or zoning ordinances are subordinate to it and must be consistent with the dictates of the General Plan. What is particularly significant about the Court’s ruling is that the 1998 Plan was inconsistent because it frustrated the general “Goals” of reducing congestion and implementing a comprehensive circulation system set forth in the General Plan. The County argued these Goals were advisory only, but the Court concluded they were mandatory. The Court found the 1998 Plan failed to implement these Goals, contained no specific improvements to reduce congestion and to handle the increase in traffic from the project area without increasing congestion. This will be a challenge to the County, since it has concluded it lacks the funds and authority to make congestion-reducing improvements on adjacent State highways 221, 29 and 12. It may be that the County will have to amend its General Plan Goals to recognize this reality before it can approve a “consistent” Specific Plan for the airport area. The Court also concluded any new Specific Plan must include affirmative steps to mitigate project impacts on housing and growth in order to be consistent with the General Plan. The result of the decision is that no pending projects may be approved under the 1998 Plan, as it is invalid and will remain so until properly adopted after certification of an adequate EIR. Processing of all project applications in the airport area by the County under the 1998 Plan have been processed under the 1986 plan. Each project must comply with the California Environmental Quality Act (CEQA), and several are required to prepare their own EIRs. The 1986 Plan remains valid and in force. There appears to be a lack of concern by the Napa County Board of Supervisors regarding the invalidity of the 1998 Plan, the invalidity of the General Plan, and, most importantly, the invalidity of the Housing Element of the General Plan. The monies spent on the 1998 Airport Specific Plan appear to be largely wasted. It appears to the Grand Jury that the resolution of the Housing Element has the highest priority. If the General Plan is to be updated, the Airport Specific Plan can be part of the General Plan update. Because of the invalidity of the Housing Element, and the General Plan and the Court’s determination of the invalidity of the Airport Specific Plan, property rights of owners county-wide are in great jeopardy. The Grand Jury is informed that a court could prohibit all building permits in the county until a lawful Housing Element of the General Plan is adopted and the General Plan is updated. The Grand Jury determined that the City of American Canyon spent $173,000 on attorney’s fees and that the County of Napa spent over $380,000 on attorney’s fees and consultants on the litigation in addition to the substantial cost of preparation of the 1998 Airport Specific Plan The Grand Jury is unable to determine the cost of lost staff time for either entity. PROCEDURES The Grand Jury interviewed members of the Napa County Board of Supervisors, members of the American Canyon City Council, members of Citizens for Honest Government, the Napa County Planning Director and staff, the American Canyon City Manager, Napa City Council members and members of the public.
F3
Traditional agricultural practices involving the application of toxic chemicals to soil can lead to cumulative chemical effects that contaminate the environment, threaten human health and compromise ecosystems. There is a growing trend among some County farmers that is resulting in a movement away from traditional chemical pesticides and towards a safer pest management approach. This concept of “Sustainable Agriculture” can provide agricultural product in a profitable way without creating pollution or risks to human health or environment. Sustainable Agriculture is "an integrated system of plant production practices that meet the needs of the present without compromising the ability of future generations to meet their needs" according to the Sustainable Agriculture Research and Education Program at the University of California, Davis. This Program was created in 1986 by CA legislature in response to concern about: • Protecting human health and wildlife in rural communities; • The environmental impacts of traditional agricultural techniques; • Profitability and success of small and family farming operations; and • Ensuring abundant, affordable and healthy farming product.
F4
Last year, more than 2,120,000 pounds of pesticide were used in Napa County, which ranked 22nd highest in pesticide use out of California's 58 counties. This represents a 10% decrease from the prior year. This is the third straight year that Napa County has experienced decreased conventional agricultural pesticide use. Three of the top five most-used pesticides or herbicides in Napa County: sulfur, glyphosate salt and copper hydroxide, are considered relatively safe to humans. The most commonly used chemical is elemental sulfur, which many believe is relatively safe for human contact and the environment. In fact, elemental sulfur is authorized for use by certified organic farmers. However, some observers still feel that there may be long-term health risks even with elemental sulfur use. Two others in the top five, methyl bromide and simazine, are among chemicals that most concern citizen activists: • Methyl bromide is a soil sterilant in gas form used prior to planting. It has been associated with human birth defects at low doses, and its use is closely regulated under the terms of Proposition 65: the State’s Drinking Water and Toxic Enforcement Act of 1984. • Simazine is a common herbicide used on grapes. It is categorized as a possible human carcinogen and endocrine disrupting chemical. It is a frequent ground water contaminant throughout the U.S. Some vineyard managers believe that most of the useful information on effective pesticide or herbicide choices comes from local dealers, marketing agents or word of mouth from other vineyard managers, rather than from our local government agencies.
F5
Watershed testing for ground and surface water contamination in Napa County done by State agencies over the past twelve years has shown undetectable levels of pesticide or herbicide. These tests are done on a random, unscheduled basis throughout high-risk areas in the county. State requirements vary from one time testing, annual testing or every three-year testing, depending on the chemical. Water is also tested for other contaminants, including pathogens, nutrients and sediment by these random tests. Currently the Department of Environmental Management (DEM) receives State funds of $26,000 per year plus additional tax revenues from local water districts for implementing these environmental health and safety regulations. However, neither DEM nor any other local Napa County agency is testing ground or river water for pesticide contamination at this time. According to the Director, this is in part due to DEM staffing shortages over the past several years. The State may take over the required testing in Napa County if DEM does not comply, and DEM could lose State and water district revenues for this testing. Currently, neither Sonoma nor Solano County agencies are doing local ground water testing; it is being done by the State.
F6
The Agriculture Commissioner, the Director of DEM and the Napa County Public Health Officer have investigated and found that there are no reports of any serious illnesses or injuries related to pesticide use in Napa County. There have been some mild eye and skin irritations or allergic reactions of a temporary nature in some pesticide workers. The Grand Jury finds that there is no data or evidence to link pesticide exposure with any chronic or long-term illness or injury affecting Napa County residents. Specifically, the Grand Jury finds that there is no evidence to indicate a clustering of cancer or higher incidences of cancer among residents in agricultural areas of the county or among agricultural workers.
F7
In last year’s NCFD Budget, there was a large surplus of revenue available at the end of the fiscal year. This is money that was not disbursed, but was “rolled over” into this year’s budget and is kept in an interest bearing Fire Protection Fund (1080). The amount of money in this fund was $3,278,727 as of 1/31/2002 according to the County Auditor.
F8
The FCD has proceeded to attempt to collect the cost of contamination clean up from the original polluter where possible.
F9
If the Federal share and the State share are not forthcoming, and in fact pay only that which is now budgeted by the FCD, there will be a short fall of revenues that will increase the cost of the project beyond the amount of the shortfall.

Recommendations 12