October 1, 2012

Arguing over words and a whole lot more in the California Court of Appeal

By Arguing over words and a whole lot more in the California Court of Appeal

We recently filed an amicus brief in JHP LLC v. Japp, a case pending before the California First District Court of Appeal.  At issue is the scope of the California Department of Forestry and Fire Protection‘s (CalFire) authority to regulate “timberland” under the Z’Berg-Nejedly Forest Practice Act.  Under that Act, CalFire may regulate “timberland” which is defined as “land . . . which is available for, and capable of, growing a crop of trees of a commercial species used to produce lumber and other forest products . . .”

The case arose in Del Norte County when property owner and developer JHP tried to build residential housing on two parcels of land.  Both parcels were zoned for residential development and were identified as such in the County’s General Plan.  In addition, JHP obtained the County’s permission to subdivide the parcels, underwent environmental review under the California Environmental Quality Act, and—for one of the parcels—obtained a Coastal Development Permit from the California Coastal Commission.

In spite of all that, CalFire, wanting to extract its own “pound of flesh,” insisted that JHP could not develop the land without obtaining its approval because the land was “timberland.”  JHP argued in court—as did we in our amicus brief—that the land is not timberland because it does not satisfy the statutory requirement of being both “available for” and “capable of” growing a crop of trees.  While it may be “capable of” growing the requisite trees, it is not “available for” that purpose because the County affirmatively designated the land—both through its General Plan adoption and zoning—as an area for residential development.  CalFire’s interpretation of “timberland” is legally impermissible because it reads the “available for” requirement out of the statute.

Aside from this concern for statutory fidelity, CalFire’s interpretation of “timberland” has serious and disturbing real-world consequences.  If “timberland” only means land that has the sheer biological capacity to grow a crop of trees, large swathes of the state are subject to CalFire’s jurisdiction.  As we noted in our brief, “[e]ven land in fully developed, urban areas replete with houses, office buildings, department stores, and every other mainstay of urban living, would fall within CalFire’s broad sweep, provided the underlying soil qualified.”

This is problematic since in order to cut down trees on timberland, one must generally obtain an expensive and burdensome timber harvesting plan.  A registered professional forester must prepare the plan, it must include mitigation measures to address environmental impacts, and it must be approved by the Director of CalFire.  Even where the Act exempts particular activities from the timber harvesting plan requirement—such as chopping down a single tree in a suburban backyard—the property owner must still submit a notice of exemption.  Further, she must comply with all other “operational provisions” of the Act if she engages in “commercial purposes” which includes any “sale, barter, exchange, or trade.”  As a result, someone living in the suburbs who wants to cut down a backyard tree to sell as firewood, or even trade the firewood to a neighbor in exchange for apples, would be engaging in “timber operations” and be required to obtain a timber harvesting plan or an exemption from CalFire!

Given the Act’s detailed regulatory requirements and its stated purpose of regulating forests, it beggars belief that the California Legislature intended CalFire to exert such expansive authority over suburban dwellers.  But that is exactly the result that occurs if CalFire’s expansive definition of “timberland” is allowed to stand: everyone who lives in an irrigated area of the state is potentially subject to CalFire’s jurisdiction.

The County of Del Norte signed onto our amicus brief because it is particularly concerned about CalFire’s expansive definition of timberland and its ability to forestall development projects.  Like all California counties, Del Norte is subject to state law mandates to contribute to the statewide housing goal and to provide a certain amount of moderate and low income housing for its residents.  The State Department of Housing and Community Development has set the County’s housing need for its unincorporated areas at 1,569 dwelling units.  The two parcels at issue in this lawsuit have the ability to provide up to 18% of those mandated units.  If the County cannot rely on these two parcels to contribute towards that mandate, it will have to try and find other areas to develop.

As we noted in our brief, “[t]he cost to the County for the identification of land, necessary land use changes including General Plan amendments, rezoning and potential amendments to the Local Coastal Plan would be onerous.”  Moreover, finding other land may be infeasible as almost 80% of the County is already owned by the State or the Federal Government.  This means that the County has only 20% of its geographical area to work with to meet its housing goals, much of which is already developed.  In addition, if the County fails to satisfy its state-mandated housing quota, it risks losing Community Development Block Grant money which it relies on to construct low income housing and to provide humanitarian services to its residents.

Two other groups also joined our brief: the Del Norte Association of Realtors and the California Association of Realtors.  Both groups realize that if CalFire’s expansive interpretation of timberland is sustained, a new, burdensome and unnecessary layer of bureaucracy will stand in the way of home construction.  Ultimately, consumers will pay the price in the form of costlier housing.  Given the important role that home purchases play in driving the U.S. economy, making homes more expensive is poor public policy and certainty contrary to legislative intent. Because both organizations’ members are troubled by these ramifications, they have chosen to support JHP in this lawsuit.

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