CONTINUATION OF THE OCTOBER 21st, 2011 LDPCSD BOARD MEETING

Verbatim Transcript based on analog and/or digital recording of meeting.

Director Richardson:  Well I guess it’s Harry’s turn now.

Harry Alfier:  Well, I’d just like to once and for all look Lew in the eye

Director Richardson:  OK, hang on

Harry Alfier:  and have Lew look me in the eye, those regulations that you keep telling me that I’m violating and Tom Porter is violating

Director Richardson:  I’ve never said you violated them

Harry Alfier:  well my driveway violates them you tell me, the bottom line is, it says right on those regulations Lew, these regulations do not apply to any roadways constructed prior to 1991 when the regulations came in

Director Richardson:  right.

NOTE: SRA stands for State Responsibility Area and SO GOSIP = Same Old Group Of Special Interest People

[NOT A DRIVEWAY.   I believe Mr. Alfier is confusing terms because it is a roadway that actually serves his property off Alamo Drive, not a driveway.  A road provides access to more than two residential or access to any industrial or commercial occupancy. The Deerwood-Alfier road was clearly constructed to provide access to at least five parcels immediately:  one for Harry Alfier and four for the Deerwood Corporation further south.   Apparently there were plans to extend the road around the hill to the west to reach other properties and re-connect with Alamo Drive, but such a project would have to conform to 1991 SRA Fire Safe Minimum Roadway Standards.

A roadway is defined as any surface designed, improved, or ordinarily used for vehicle travel.  As discussed below, there are very good arguments to support the opinion the original “pathway” established in the early 1970s was not a road.   

I HAVE NEVER DISAGREED that preexisting driveways and roads were exempt from SRA 1991 Fire Safe Minimum Roadway Standards because it would be extremely unfair to make owners of existing driveways and roads spend money to bring them up to a newly created standard.  They were satisfactorily serving the purpose up to that point, but in this case the pathway was not being used to serve anything, yet it was upgraded to a roadway to serve multiple homes in the future with complete disregard for regulations and safety. 

NOT VERY REASONABLE

The new fire codes also applied to “new construction, not relating to an existing structure, which requires a building permit”.   IN MY OPINION, turning a minimally scraped pathway into a substandard and dangerous 1,600’ asphalt paved road to serve multiple homes is analogous to upgrading a temporary storage shed to a 4,000 sqft family residence with disregard for building code requirements concerning structural calculations, foundation engineering, framing, roofing, electrical, plumbing, etc., because the quality and safety of the finished project will suffer. (This is a great example of “cutting corners”.) 

A residence not built to code produces a dangerous and noncompliant home, and a pathway turned into a road without regard to minimum roadway standards creates a dangerous substandard road.      

Harry Alfier:  All the roads that you’re questioning and I know that you don’t believe me but I’ll, I’ll swear on my father’s grave and the life of my daughter, every road that you are talking about was constructed by Boise Cascade in the early 70’s to provide access to these properties.

[I’m sorry, but that’s kind of creepy – swearing on your father’s grave and daughter’s life?  I’m sure Harry was only trying to emphasize his point and instill confidence in that what he was saying was the truth, but I’m sorry, I disagree and find his method of persuasion rather melodramatic and in poor taste.  I do think Harry has convinced himself it is the truth, otherwise he wouldn’t say such a thing but there is a big difference between a scraped pathway serving nothing and only marking where a road might be constructed someday and roads “constructed by Boise Cascade”.       

If such roadways were indeed constructed by Boise Cascade in the early 70’s, where are the maps, engineer reports, grading permits, and county approvals?  

Why are there no official maps of these roads in county records?  Even the nonexclusive easements upon which these alleged “roads” were constructed were not filed until AFTER the Final Subdivision Map for Lake Don Pedro had been approved by the county.  

How can roadway infrastructure changes be made to the legally approved Final Subdivision Map without public input and discussion? 

The easements giving rise to these access roads were clearly “after-thoughts” designed to reach properties which already had designated driveways connected to state or county maintained roads.  These developer-convenience roads are not required for property access.    

Harry Alfier:  Don’t shake your head because that’s the truth and I can prove to you that’s the truth.  The courts have already, the courts aren’t stupid they saw it and saw the aerial photograph so you just keep telling the same lie and that’s why, when, you just kill me when you keep telling me how everything I say is the truth, everything, it’s not the truth, the truth is, it says right on the, how can they violate those regulations when the regulations clearly state those roads are exempt from those regulations? 

Director Richardson:  Any modification to an existing road had to come into conformance with the 1991 SRA …

Harry Alfier:  Where’s the modification?

Director Richardson:  When you asphalt pave 1,600 feet of road it’s a modification

Harry Alfier:  (inaudible)

Director Richardson:  Plus that road was not there at that time because the satellite images clearly showed that it was not there.

Unknown:  getting off the subject

Multiple voices

Harry Alfier:  We’re getting off the subject

[Oh…now you’re concerned about getting off the subject?  But you are the one that brought the matter up.  Now in regards to the Deerwood-Alfier Roadway that serves Harry’s property, I attended that court hearing and saw the same aerial photograph displayed on the court room wall which was evidently accepted as proof of a previous existing road.  With all due respect to Judge Parrish, I did not see a road but merely a pathway or trail through hillside grass. 

I would agree that a pathway may have been scraped once years ago but construction of a “real road” never occurred nor is there any past paperwork indicating such.  Part of Harry Alfier’s evidence that the road existed was based on a declaration by Wes Snyder who worked closely with Boise Cascade and Harry’s father “Uncle Milt” who has been selling property here since 1968 (Even before the subdivision had been approved.).  

Mr. Alfier provided evidence to the court about the operation of the Lake Don Pedro Owners’ Association which is interesting since he only makes a living here and is not a resident.   You must also remember there were “land developer friendly directors” on a board which refused to enforce regulations which Harry has always supported.   Part of our regulations prohibited “dirt work” without approval, but without enforcement from those directors and committees……anything desired was allowed.

The fact the CONSTRUCTED DEERWOOD PAVED ROADWAY indeed existed at the time Judge Parrish heard the matter undoubtedly played a big part in its being permitted to remain, however, it appears to me as though the circumvention of PUBLIC SAFETY LAW was essentially rewarded with the ruling a previous road had existed and therefore it was not subject to the new Fire Code Standards.  This is an old method of operation for developers not wishing to get “tangled-up” with restrictive or prohibitive laws, regulations or codes – sneak the project in under the authoritative/enforcement radar then request mitigation measures for approval and/or use.

PARRISH FIRE

I have been advised a number of people were interested in the Parrish fire tragedy and how that other road made the point of SRA Fire Safe Roadway Minimum Standards in regards to the similar “hairpin” turn on Harry Alfier’s property.  Judge Parrish made the favorable ruling for Deerwood and Alfier prior to his accident but begs the question if his decision might have been different if heard after his personal loss.   Rather than trying to “sum up” that original article, here it is: 

 

HOW AND WHY DID THIS HAPPEN IN LAKE DON PEDRO?

REMINDER TO THE SO GOSIP:  THIS IS MY OPINION as to how and why those dangerous roads were able to be created 12 years after passage of the 1991 SRA Fire Safe Minimum Roadway Standards.

THE HOUSING BOON.  At the time the housing construction industry was wild with growth.  Numerous properties in this area were available at distressed prices and Thomas Porter and his Deerwood Corporation had the ability to purchase several hundred.  With these properties and their votes came the power to vote in LDPOA elections providing him with the ability to place whomever he wanted on the board. 

PORTER HAD A TIME FRAME and could not be slowed down with normal procedures, constraining or even prohibitive subdivision regulations.

FIRST LINE DEFENSE DESTROYED.   Porter was able to “sponsor” real estate/land development “friendly directors” on the LDPOA who refused to enforce the CC&Rs and the Trifold which was a condensed pamphlet of regulations designed to protect the subdivision from uncontrolled development.  The TriFold had been successfully relied on for approximately  17 years and had been upheld in both Tuolumne and Mariposa County Superior Courts yet was ultimately rescinded in a highly questionable procedure by “Porter Supporters” on differing boards.   Only 40 year old CC&Rs now protect the subdivision and they too are rarely enforced if contrary to what the SO GOSIP advocate.

The LDPOA was supposed to protect this area on behalf of ALL OWNERS but it was quickly neutered and many speculative/model homes, and developer convenience roads were constructed without approval.  Despite assurances by former directors involved that “approval letters” establishing “compliance” were in every Deerwood file, the statements were completely untrue.  This is the ironic part, had Mr. Porter confined his building to the existing rules by only constructing homes for those ready to purchase he would not have found himself possessing so many new and vacant homes for so many years.  Obviously, Mr. Porter was not the only housing speculator practicing in this area at the time but Deerwood cleared the trail – so to speak.

NONEXCLUSIVE EASEMENTS.   As mentioned above, these were filed after the Final Subdivision Map was approved and were intended to provide access to “difficult to develop lots”, however, they did not have anything to do with roadway standards being followed to produce adequate and safe roadways.  They merely identified the location where roads could later be established.   The future road would have to be constructed on top of the nonexclusive easement, yet in the Deerwood-Alfier Road due to the terrain, the road in places, was simply cut into the hillside where most convenient and wasn’t confined to the underlying easement.  This in combination with obstructing Public Easements for natural drainage (increased erosion due to installation of roads without required soil studies, proper engineering, drainage control, etc.) and the asphalt paving dedicated Pedestrian & Equestrian Trails in violation of Mariposa County Ordinance 950 -which prohibits motor vehicles on trails, has created a host of problems for this subdivision in the future.

GRADING PERMITS.  These “developer-convenience roads” definitely required a grading permit due to the substantial amount of material that would be cut and used for fill, however, had a grading permit been obtained from the Mariposa County Building Department, CDF/CALFIRE would have been notified.   This “trigger notification” would have resulted in an inspection/approval process CDF/CALFIRE.

CDF/CALFIRE WOULD NOT APPROVE. There is no doubt that CDF/CALFIRE would have inspected and denied the proposed roads due to their refusal to recognize a rudimentary scraped pathway or trail as a legitimate preexisting road which would be exempt from the 1991 SRA Fire Safe Minimum Roadway Standards established 12 years earlier.

CONSTRUCTION OF SRA FIRE SAFE COMPLIANT ROADWAYS would have been extremely expensive, if even possible considering the underlying easement and terrain, and time consuming which were two critical variables for a land developer dedicated to constructing as many homes as possible while the “Housing Boon” existed.

THEREFORE it was absolutely crucial to develop some kind of way to access the properties for residence construction while simultaneously avoiding application for a grading permit which would have triggered CDF/CALFIRE involvement and put an immediate end to his road construction business before it started.  

Apparently this is what happened:  Deerwood representatives would go to the Mariposa County Public Works Department and obtain Encroachment Permits which only allow construction of a driveway from one or two residences to an adjacent state or county maintained roadway. 

Once the encroachment permit was obtained, Deerwood (under the radar of the Building Department grading permit requirements) constructed several asphalt paved roads to access multiple properties at once!  Saved money, accessed more homes, and in Harry Alfier’s case, greatly enhanced his properties’ view of the high Sierras and Don Pedro Lake by allowing construction on top of the hill rather than at a lower elevation with a traditional and expensive driveway. 

PRESTO!  Regulations specifically designed to protect life and property IN A DESIGNATED HIGH FIRE SEVERITY ZONE were circumvented for convenience and profit.  (((YET I AM ACCUSED OF BEING AN EVIL MAN???)))   I find it extremely difficult, if not impossible, to believe a decades old land development/mortgage corporation like Deerwood, who had vast experience with construction in other California foothill communities was not familiar with SRA requirements much less local building and grading codes and regulations.   Sorry just can’t buy that one.

WHAT WAS THE PURPOSE OF FIRE SAFE ROADWAY REQUIREMENTS?

Were those original “pathways/trails” approved as “ROADS” by local government and therefore exempt?  I do not believe so.  Here are some interesting paragraphs from a March 31, 2004 CDF correspondence regarding interpreting SRA Fire Safe Regulations:

“BACKGROUND

Access is a major fire protection need, whether wild land or structural.  Failure to provide a reasonable access for emergency equipment and evacuation egress for civilians can result in major loss of life, property and natural resources.  Fire apparatus sitting at an intersection, waiting for civilians to exit on a narrow road cannot provide the necessary fire suppression action.  Safe access requires street and road networks that limit dead-end roads and provide reasonable widths, grades and curves on roads and driveways.”

“The suitability and safety of access is not dependent upon the date of construction, but rather the design criteria for that road.  Many existing roads may meet or exceed these standards, however many do not.  CDF and local fire fighters have responded to emergencies on unsafe, substandard roads for years.  The past use does not mitigate the danger to fire fighters and civilians.”

“The Board of Forestry recognizes the standards within the SRA Fire Safe Regulations are minimum standards and not intended to be applicable within the two zones of greater hazard levels.  The majority of SRA lands within Mariposa County fall within the “two zones of greater hazard levels.”  The Board also recognizes that past use of sub-standard roads does not mitigate this danger to firefighters and civilians.

While the Board recognized that retroactive application was impractical, the Board states the intent that transportation infrastructure would improve as development occurs.  In the last thirteen years of the regulations, rural counties have made little progress toward the improvement of existing infrastructure due, in part, to the miss-application of the intent of the law.”

SO ANYWAY – Since that original court hearing I have viewed many other aerial photographs and satellite images of that area taken over the years which supports the opinion it was indeed only a pathway/trail until Deerwood construction equipment graded and asphalted an actual roadway, which although better than the original pathway, didn’t even come close to meeting 1991 SRA Fire Safe minimum roadway standards.

Here are some photographs of photographs so the clarity is not all that great but good enough to make some points about how a “pathway/trail” was turned into a nonconforming and extremely dangerous road. 

PLOT OF AREA

Here’s a plot of some of the area for a better understanding of the road’s configuration.  Remember that lots in the subdivision were intended for residential development.  How can you build a house with an on-sight sewage disposal system with all the required setbacks when a roadway diagonally crosses the rectangular lot?  Lot 1177 was essentially scraficed so a developer-convenience road could access other properties.  The  purpose of FIre Safe minimum roadway standards were completely ignored.   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ABOVE: This particular developer-convenience road also partially covers and in one area, completely covers a Mariposa County Dedicated Pedestrian & Equestrian Trail with asphalt.  As the road continues south it actually veers off from its underlying easement, which is to say, the road wasn’t even built where it should have been.   Mariposa County Ordinance 950 prohibits motor vehicles on P&E Trails. 

Below are some photographs of photographs so the quality isn’t all that great, but they were part of the court record and were prepared and analyzed by a court recognized expert.  That brief analysis of the photo appears below the image.  Once the pathway/trail is scraped in later photos notice the difference in width between Alamo Drive which arches around the area that is supposed to contain the eventual Deerwood-Alfier Road.  How can such a trail be considered an actual road – especially when it serves no residence? 

  

ABOVE PHOTO: No activity is shown on the tract prior to 1971, with the exeptions of the lot access from Alamo Drive to the lots 1148-1152 and 1172-1178.  Native soils are very light colored and show up clearly once disturbed.  The section of Alamo Drive shown in the photo is not paved on this date.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ABOVE PHOTO: The 1974 photo indicates that a preliminary pathway has been cut into the side hill from lot 1149 south to 1152.  The pathway shows revegatation in some areas.  This indicated the pathway was done between 1973 and April 1971.  The tire tracks are visible with vegetation in the middle.  This pathway was not maintained after being initially scraped and cut into the hillsides.  (Note the shadows that show on the uphill side of the trail.) There is no indication that construction allowed for handling drainage water that would be discharged on the downside of the pathway. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ABOVE PHOTO: The 1985 photo shows some sections of the north south pathway are completely revegetated.  Other sections clearly show light vehicle use with vegetation in the middle.  The section across lot 1177 is the section with most exposed soils.  There is no indication that significant erosion has occurred on the slope below the pathway.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ABOVE PHOTO: The 1987 photo show continued, but light use, of the section of the easement from Alamo Dr. through lot 1177.  There is re-vegetation on some parts of this east to west pathway.  The easement extending south shows only small spots of bare soils.  Alamo Drive has been paved at the time of this photo.

PHOTO ABOVE: In 1993, the pathway from Alamo across lot 1177 has been maintained to remove the vegetation and permit temporary vehicle access to lot 1178.  Also an area south of this segment has been scraped leaving bare soils in the center of lot 1177.  The segment of pathway from 1149 south is completely re-vegetated.  The exception being narrow channels cut by water erosion parallel to the pathway.  The photo indicates increased erosion on lot 1150.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ABOVE 1997 PHOTO: Photo shows declining use of the pathway across lot 1177.  The upper portion across lot 1178 going south is difficult to see in the photo.  No change on the pathway from 1149 to the south.  Pathway is completely covered with vegetation.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ABOVE 1998 PHOTO: The segment of pathway from Alamo across lot 1177 shows more use than segment going south.  The segment going south has no indication of bare soils.  This segment is also variaable in width from 5-7 feet.  The narrow portion is on the south portion of the pathway near lot 1172.  There is no indication of vehicle traffic on pathway going south.  The southern portion of the pathway is too narrow for a vehicle at time of this photo.

ABOVE PHOTO: December 1 2004: This photo shows the completed surfacing of the access road.  The photo shows no measures to handle the increased water on lot 1150.

NICE DRAINAGE HUH?   

Who will be responsible for the maintenance and repair of these private dangerous roads which are open to the public?  Will a “special benefit assessment” for road maintenance have to be paid by all beneficieries of such roads?   Wouldn’t these dangerous roads consistute a known disclosure?  Wonder if that is on Harry’s little check list for buyers?

What about the liability for property loss, potential accidents, injuries and/or death?

I have so much more to share with you but I am very tired and need to get away from this monitor, but until then and as always……

My best to you and yours, Lew

PS: I’ve got something special to show you next time in my continuing response to Mr. Harry Alfier’s “Swing of the Bat”.