April 26, 2013

Barren land is “timberland” if CalFire says so

By Barren land is “timberland” if CalFire says so

A California appeals court has sanctioned the California Department of Forestry and Fire Protection’s (CalFire) regulation, as “timberland,” of land containing no trees and zoned for residential development.  PLF filed an amicus brief in the case—representing Del Norte County, Del Norte Association of Realtors and the California Association of Realtors—pointing out the many problems with this rule.

Under the Forest Practice Act, CalFire can regulate “timberland,” land that is both “available for” and “capable of” growing a crop of trees.  PLF’s brief argued that by asserting jurisdiction over two parcels already zoned and subdivided for residential development, CalFire ignored the “available for” requirement in the statute.  Rules of statutory construction, and a 2006 California Supreme Court opinion, require that the phrase “available for” carry independent meaning.  In other words, land is not timberland merely because it is biologically capable of supporting a crop of trees; it must also be available for timbering.  And land that is already developed — or being used in another manner incompatible with timber operations — does not satisfy the statute’s “available for” requirement.

If all that is required is the biological capacity for growing a crop of trees of a commercial species, every parcel of California where the underlying soil composition is theoretically capable of supporting such a crop is ‘timberland,’ subject to CalFire’s jurisdiction.  Even 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.

The court acknowledged this reality—even quoting directly from our brief in its opinion—but nonetheless sanctioned CalFire’s definition because the agency wasn’t acting as outrageously as the examples we provided in our brief on this particular occasion.  The court seemed to forget that jurisdictional statutes, like this one, have broad-ranging impacts on many people—and the fact that a particular interpretation sanctions absurd results is a reason to reject it.

Fortunately, the court’s decision is unpublished, which lessens its impact on other courts in the state that may consider this same issue. But unfortunately, the plaintiffs must jump through more regulatory hoops to develop their property.  That, in turn, is bad news for Del Norte County and its residents.  The County desperately needs these two parcels developed into residences in order to satisfy its state-mandated affordable housing quota. Nearly 80% of the County’s land is already owned by the state or federal government, which leaves very little room for housing.  Because the court sanctioned a definition of “timberland,” which gives CalFire regulatory authority over virtually the entire state, Del Norte County and its residents must push through more regulatory red tape in order to build and develop their land.  It’s a sad day when a state agency that is designed to protect property from disasters creates a court-sanctioned regulatory disaster for California’s residents.

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