Blakeley Construction Code Enforcement Issue

Background:  The outcome of the Blakeley Construction Company situation was not anyone’s desire or original expectation at the County level.  But as I have noted previously, the County is bound to comply with the law.  Unfortunately, this is one of those situations where what seems like an illogical or unfair result occurs as a result of the law …

These FAQs incorporate what I published in a recent newsletter article, a letter to the editor of the Calistoga Tribune, and answers to additional questions I have received.  I hope the following explains why the County’s options were slim, and that we did what we could to allow the Blakeleys to continue to use as many of their structures as legally possible for an agricultural business operation.

Questions:

What assistance was given to the Blakeleys?
Why wasn’t there another hearing last fall?
Why did the Blakeleys have to demolish buildings?
Why can’t a construction business operate where a farm management company does?
Why couldn’t Blakeley Construction be given amnesty?
Why couldn’t Blakeley Construction be given a variance?
Why is the County favoring a few people over this business?
What are the alternatives for Blakeley Construction?
What about the real property taxes they paid?

Why didn’t the Board of Supervisors and the County of Napa provide assistance to this long-term local business, which is in a very unusual situation?  In many other instances, the business owners have been allowed to continue in business at the same location after paying “fix-it” fines. 

The only such business owners are ones whose businesses are either permitted under the zoning code or entitled to a CLN (Certificate of Legal non-conformity).  If a business owner can prove they were in existence before a prohibitive zoning code was established for their property, they can continue their existing use and operate legally if they obtain a Certificate of Legal Non-Conformity (CLN).  If the property owner can prove that the use began before the prohibitive zoning code provision went into effect, the business can get a CLN to operate legally.

More than a year ago, complaints came to the County about the Blakeley Construction business operating illegally in its location within an agricultural zone.  Like most local governments, Napa County has a complaint-driven code enforcement program.  In other words, the County doesn’t go around looking for code violations, but when presented with evidence of a code violation, it cannot be ignored.

The agricultural zone was established in 1955, and only allows agricultural businesses and residential use.  It was commonly thought that Blakeley Construction Company was operating at its Franz Valley Road site since before 1955.  The County and the Blakeleys originally believed that the company could obtain a CLN to stay at its site.  However, last June the Blakeleys had difficulty substantiating that their business existed there prior to 1955.  Without clear evidence of that, it was not possible for the County to issue a CLN.  Blakeley Construction Company was put in the position of having to move, because its commercial activity is not solely related to agriculture and so cannot be legitimized at its current location.

A winery or residence that is illegally built can be allowed to continue because those are legal uses in agricultural areas; they must, however, bring buildings into conformance with the current building codes, and wineries have lot coverage and other size limitations with which they must comply.  The County has made wineries – and residences – demolish structures when they were in violation of the code.

An example of a legal non-conforming use is the Oakville Grocery, a commercial use that is situated in the Ag Preserve but has existed since before 1955.

Why wasn’t there another hearing last fall?  

At the June 2015 public hearing, the Zoning Officer (a county employee) opined that there would be another hearing, which appeared to be the case at the time.  However, after that hearing, the Blakeleys voluntarily decided not to pursue their CLN application.  There were no further public hearings because there was no application or permit being sought, about which to hold a public hearing.  The Blakeleys and the County subsequently entered into an agreement to allow the business to stay at the property for another 2.5 years, while it downsizes and prepares to move its construction business and/or change to a farm management operation.

Why did the Blakeleys have to demolish their buildings?

If a business can document that it existed prior to a zoning code change, it only gets to maintain that same business without changes or expansions.  So even if Blakeley Construction had proven that the business existed at the site prior to 1955, it could not expand the operation beyond how it existed in 1955.

Nine structures have been constructed on the property since 1961 without building permits.  If these had been agricultural-use related structures covering less than 25% of the property, or residential-related buildings, the Blakeleys could have obtained building permits and brought the structures to current code standards.  The County cannot allow a structure to remain for a use that is not allowed.  The Blakeleys were given the opportunity to convert some of the nine structures to an agricultural use (upgrading them to current building code standards), with the remainder to be removed.

This process is the same that’s used for every property throughout the County in a similar situation.  A winery that has constructed buildings illegally can keep the buildings if it goes through the use permit modification process; the buildings need to be brought to current code standards.  Similarly, the County recently cited a property owner with a third residential unit on their property in a zone where only two such units are allowed.  When I explained to the property owner that she could keep the unit if she documented that it existed prior to 1955, she found the documentation, and was able to keep the unit.

Why can the same business location legally be the home of a vineyard management company but not a heavy construction company?  What is the difference between a vineyard management company and a heavy construction company in terms of impact on the surrounding neighbors?  It uses the same equipment and produces the same noise and same dust. In fact, a vineyard management company may have a more disruptive impact on the neighbors, since there are typically more employees, toxic chemicals are stored on-site, and, during harvest, there is activity into the late evening and early morning hours. 

That’s a good question and quite logical.  A little background:  We have always had construction-type companies in the agricultural areas, but most were exclusively engaged in agriculture related activities.  Nevertheless, they were not specifically allowed by code.  That is why one such operation had to move from Mee Lane into the St. Helena industrial park; the neighbors complained about the operation on Mee Lane.  Other such companies have their operations at the airport industrial area to avoid a potential code violation situation.

However, in 2006, some companies doing exclusively farm-related construction came to the County and requested an ordinance change so that they could operate in agricultural areas.  An ordinance was written that makes them compatible with the general plan – i.e., they can engage in agricultural work only.  That is a requirement of any such company and, further, it is specifically limited to cultivation and harvest activities.  [See Napa County Code 18.08.040 – https://www2.municode.com/library/ca/napa_county/codes/code_of_ordinances.]  Also, farm management companies are limited in lot coverage, just like a winery is.  They are not allowed to do all the types of construction that Blakeley Construction does.

Another way to explain this:  typical city zoning [Calistoga Chapter 17.43] allows someone to have a home business in a residential neighborhood except they can only have one employee (and there are other limitations).  Many such businesses exist.  Next door to the nice quiet home occupation can be a household of folks working on their cars and making all kinds of noise and disruption, or someone with a lot of dogs that bark, or … all kinds of other examples of things a lot more disturbing to the neighborhood than the home occupation – even if it had 4 employees (not just 1).  But we (government in general) can’t arbitrarily say that the quiet home occupation with 4 employees is okay and the noisy disruptive household is not okay, because zoning is based on use (residences and residential use).  We allow the 1 employee business use by calling it a “home” occupation.  But it’s probably a lot less disruptive than many residential uses.  We must use objective standards, not  subjective ones; we can’t say, oh, but if your home business is not disruptive you can have 4 employees.  We would be converting the residence to a business, i.e., a commercial use.

So, even though the Blakeley Construction operation might be no more disruptive than a solely agricultural-related construction use, all we can allow in an agricultural zone is an agricultural-related use.  Thus, we built into the agreement with the Blakeleys a 2.5 year grace period to allow them to convert to a farm management company operation.  It was the most we could do.

Blakeley Construction has always been a part of our local agricultural community. Charley Blakeley, Dick’s father, was a farmer and used Blakeley Construction, Inc. equipment to prepare the land for planting of his vineyard. The company has assisted in preparing vineyard land, and prepared sites, parking lots and roads for wineries and vineyard properties. While they don’t have all of the attributes of a vineyard management company such as harvesting crops, pruning, etc., virtually every job they perform could also be done by a vineyard management company.  Why won’t the County reach out to this business with some sort of an amnesty plan?

The County does not have legal authority to grant permanent amnesty to anyone.  Further, if  we granted amnesty to uses not authorized by the zoning, it would be like Pandora’s box; if we allow one unauthorized use to operate, it opens the door to others.  Allowed uses, like wineries, can be allowed to cure their code violations with a public use permit process and by meeting current building codes.

Allowing Blakeley Construction Company to become a farm management operation – limited to cultivation and harvest activities – allows some of the business to be retained at the site.

Why won’t the County give this business a variance?

A variance is only allowed when there is a unique hardship for an allowed use under the zoning regulations because of the parcel shape/size/topography/location/surroundings.  Example: you are allowed to have a residence, but you need change in the setback or road width or something like that to build the house.  OR you are allowed to have a winery because it’s a 10+ acre property, but there is no way to site the winery because of setbacks; a variance is given to allow you to reduce the setbacks.  But variances cannot be used to legalize a use that is not allowed by the code.

Why is the County favoring a few people who are complaining and threatening lawsuit(s)? 

The County isn’t favoring anyone.  The legal threats are real; the County has been sued in the past for for not following its own general plan or having inconsistent zoning/general plan.  They were slightly different situations, but the outcome was the same: the County was ordered to follow its own general plan and zoning laws.

Was there no other alternative to the Blakeleys?  Where can they go? 

The Board does not have the power to rezone property in agriculturally-designated areas to non-agricultural business and commercial uses.  Napa County voters have spoken twice – in 1990 and 2008 – to say that they want to control when agricultural land will be used for non-agricultural uses.

So one solution might have been for the Blakeleys to obtain voter approval for a zoning change to allow their continued operation.  There are numerous examples where such efforts have been successful in the last 25 years, especially where there is broad community support.  Examples:  the Pumpkin Patch in Napa near the corner of Highways 12 and 29 is an example of a business that grew out of code compliance, and chose to seek voter approval to retain its ability to operate at its location.  In Berryessa, property owners sought and obtained voter approval to install a commercial boat storage facility.

Blakeley Construction can also relocate to non-agricultural zones in the county or inside any city.  Unfortunately, most of these potential locations are located in the southern part of the county.

What about the real property taxes paid by the Blakeleys all these years?  Do they get a refund of those monies?

According to Assessor John Tuteur, the Blakeleys never paid real property taxes based on having a business at their real property.  He states as follows:

1)      Blakeley Construction INC. has paid a business property assessment, which is primarily based on the value of their heavy equipment.  They would be assessed for this equipment whether located on their own property or on leased land.  This entity is separate from the entity that owns the land on which the equipment is located, which is why the assessment is unsecured.

2)      Blakeley Land LLC owns real property.    There was a change of ownership of 2/3 of this property in 2008 when an interfamily transfer took place.  In determining the new base year value for the 2/3 reassessment, the property was valued based on the current zoning of agricultural watershed and potential uses based on that zoning.  The value enrolled did not consider the current, non-conforming industrial use of the property.

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