The dirty little secret of the Water Quality and Tree Protection Ordinance (WQTPO) is that it quietly imposes the California Environmental Quality Act (CEQA) on private homeowners. The WQTPO is the Trojan horse that brings CEQA into your back yard by requiring you to get discretionary permits to build or to clear brush.

CEQA applies to discretionary permits but not to ministerial permits. Ministerial permits must be granted by right if the applicant’s project meets specific objective standards, such as the California Building Code. Building permits have always been ministerial, thus not subject to CEQA. Currently, if your house plans meet code, you are entitled to your permit by right, without needing a negative declaration or environmental impact report.

Discretionary permits are granted only if the permitting authority subjectively determines that your project meets all the arbitrary requirements and concessions it demands in order to grant you a CEQA negative declaration, or alternatively, only if you include all the mitigation measures required by your environmental impact report. Use permits, always discretionary, must currently be obtained for any project not specifically allowed by the zoning ordinance, such as a new winery or vineyard in one of the ag zones.

Despite the good intentions of CEQA to keep new projects respectful of the environment, it often becomes a political weapon wielded by no-growthers, NIMBYs, or irate neighbors to prohibit development or to delay it and make it too expensive to pursue.

Currently, a permit for a new vineyard takes two years and costs hundreds of thousands of dollars. Any legal challenge to the environmental impact report can double or triple the time and cost. CEQA has also been used to bludgeon grape farmers into granting permanent conservation easements over much of their land (70,000 acres so far) as one of the conditions required for approval to farm the rest of it.

The WQTPO brings these bureaucratic nightmares to your doorstep by making your residential building or brush clearing permit discretionary if you try to build or clear brush in the areas this ordinance seizes. If your new home, deck, driveway, garage, barn, or room addition is within one of the many thousands of new setbacks the ordinance creates, you will be required to get a use permit to build. You will also need a use permit to clear underbrush for fire hazard reduction within your setbacks or to clear more than 30 percent of the underbrush on the rest of your property if that work is not mandated by Cal Fire.

Even if the county wishes to enforce this new regulation only in egregious cases, it is legally bound by CEQA on all discretionary permits and, thus, vulnerable to lawsuits to force strict compliance. Radical elements have sued Napa County over this in the past and won. As a result, every permit applicant must now sign an indemnity requiring the property owner to pay all costs of defending the county if it gets sued for granting the permit.

If you lack the deep pockets required to fund that legal battle, you will have to surrender your permit or lose in court by default. This leaves you forced to beg the person or group who sued the county to withdraw the lawsuit. You will have to meet all their demands or find some way to placate them, or you won’t get to build or cut your brush. The WQTPO, thus, gives anyone willing to sue total control over what you get to do on your own property.

George Bachich


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