Council Decides Landscape Ordinance is Not Appropriate
Language, impact, government involvement and principle –
For over an hour and a half on June 18, the City Council considered a controversial landscape ordinance proposed for Piedmont. A number of residents spoke in favor of the principle of adopting new rules aimed at improving the environment by curtailing water use and transporting less green waste, while other residents found the ordinance unnecessary, inconsistent with existing Piedmont Municipal Code language, and intrusive on private property rights.
Katy Foulkes, former Piedmont mayor and council member, currently Piedmont’s elected representative to the East Bay Municipal Utility District (EBMUD) Board, asked the Council to adopt the ordinance to reduce the amount of water used in gardens. She acknowledged that she had not read the ordinance and could not comment on the language. She stated, “It is going to impact so few people; it is important to approve it.”
Others urged approval on environmental principles and implementation of the previously approved Piedmont Climate Action Plan (CAP), although the CAP emphasizes education and incentives, rather than mandates (except in a few limited circumstances related to new construction). Anne Weinberger, a landscaper, and Margaret Ovenden, a member of Piedmont CONNECT, recognized that the ordinance would apply to a very small percentage of Piedmonters, but contended it was an important ordinance as a matter of principle.
Speaking against the ordinance was Valerie Matzger, former mayor and council member, current President of the Piedmont Beautification Foundation, and a 20-year local landscape designer. Matzger noted her longtime commitment to the environment and recommended the use of organic pesticides and fertilizers as one way to protect the environment. She noted the ordinance was inappropriate, overly bureaucratic, and unnecessary for Piedmont, stating the Council should “Nip this in the bud.”
Piedmont resident Joseph Gold was also strongly opposed to the ordinance based on adding another level of bureaucracy and preferred the Council focus on priorities – police, fire, schools, etc. He stated, “Keep government out of our gardens.”
The Planning staff composed of Kate Black, Kevin Jackson and Jennifer Feeley had revised the proposal to accommodate issues previously identified by the public and Council. However, questions and concerns persisted.
Council Member Garrett Keating, Piedmont’s Council representative on the StopWaste JPA, was firmly in favor of approving the ordinance and, to reach consensus, was willing to change or remove language in the ordinance that Council members found unacceptable. Mayor John Chiang worked to seek a solution to newly presented issues at the meeting.
Council Member Jeff Wieler was the most outspoken critic of the ordinance, finding it so poorly written he was embarrassed for government. He found fault with the ordinance’s lack of clarity as to rebuilding a home and various wording, as well as the required Checklist. He questioned the origination of the $22,000 grant funding, which Keating clarified came from the San Francisco. This led Wieler to question why it was not coming directly to Piedmont as our money. Considering the projected few properties impacted by the ordinance, Wieler felt the ordinance was a waste of time.
Council Member Bob McBain stated since it applies to so few, the ordinance has no validity. He said he had received phone calls and emails from many, many people who were opposed to the ordinance. McBain felt landscaping education and information was preferable for Piedmont’s good, intelligent citizens who can make decisions on what makes sense to them. He preferred cooperative efforts, rather than legislating another mandate, and noted that Piedmont does not have the resources for enforcement.
Vice Mayor Margaret Fujioka raised additional concerns regarding poorly drafted language. She was particularly concerned about overly broad discretion by the Council and lack of specifics upon which the Council could grant a waiver to the ordinance. She advocated education over legislation.
Mayor John Chiang came off “of the fence” after hearing the other members of the Council and City Administrator Geoff Grote who acknowledged that the majority of the Council was not comfortable with the ordinance as the appropriate approach for the City. Using a “carrot rather than a stick” could be more effective and avoid many of the regulatory concerns.
After discussion, Council Member Keating’s motion to approve the ordinance died for a lack of a second.
Thank you, City Council, for not going forward with this ridiculous, invasion of privacy landscape ordinance.
I have been somewhat following the debate re this particular ordinance. This particular proposed ordinance seems guilty of being more inocuous than intrusive. I do wonder if the staff has researched existing State law which does require adoption of a water efficient landscaping ordinance. AB 325 from 1990 requires local jurisdictions to either adopt their own water efficient landscaping ordinance or accept the State Model Ordinance. This law was updated by AB 1881 in 2006 which requires DWR to update the Model Ordinance in accordance with specified requirements. Local agencies, not later than January 1, 2010, are required to adopt the updated Model Ordinance or, a local landscape ordinance that is at least as effective in conserving water as the updated model ordinance. If the local agency has not adopted the updated Model Ordinance, or a local ordinance, the updated Model Ordinance will be applicable within the jurisdiction of the local agency, including charter cities. I have not researched what Piedmont has done to comply but it appears that this current debate may be moot as it appears that such an ordinance is already mandated by the State. The prohibition of shearable hedges in the now-rejected ordinance probably is not relevant to the State law as that does not appear related to water conservation.
I think it is inappropriate to characterize the ordinance as poorly written, especially so when Council and the public were given an additional two weeks to provide suggestions on how to revise the first draft. None were provided to my knowledge. Rather than poor writing, it was a case of poor reading and listening that did the ordinance in. For example, the definition of a private project subject to the ordinance reads:
3) Construction of a new single-family residence on a vacant property which is homeowner-provided and/or homeowner-hired that includes a total project Landscape Area equal to or greater than 5,000 square feet, and that requires design review and/or a building permit.
That language clearly excludes rebuilt or fire-damaged homes from the ordinance. Kate Black, Planning Director, clearly stated that the city had more than sufficient resources to implement the proposed ordinance. As to Council discretion, the proposed ordinance said:
Unusual Circumstances. Compliance with the provisions of this Article may be waived in unusual circumstances where the City Council has, by resolution, found and determined that the public interest would not be served by complying with such provisions.
Most public objections to the ordinance were that it was overly bureaucratic and imposed “outside” standards on our community. That language seems highly responsive to those concerns.
So Piedmont will educate rather than legislate. That’s a nice platitude but most environmental progress has not come about that way. Fortunately, having adopted the Civic Bay Friendly Ordinance, Piedmont is in a good position to educate its residents about Bay Friendly practices. This ordinance extends the Bay Friendly Checklist to public building projects in excess of $100,000 and proposed improvements at Hampton Field and Blair Park will likely exceed that threshold. Certainly a City Council so intent on educating its citizens about Bay Friendly landscaping would not waive its application to these civic projects.
Michael – thanks for the background on the Model Ordinance which is probably intended for LaMorinda and Central Valley development where water usage has to be highly regulated. As I understand it, fulfilling the requirements of that ordinance can cost a property owner several thousands of dollars. BFO is not moot but is principally an ordinance intended to reduce green waste and is applied by SW member agencies to new residential development only with 5000 sq ft or irrigated landscape. But BFO has water conservation benefits as well and I think SW has data to show that it is as effective as the state ordinance in reducing water usage. If acceptable to the state, perhaps BFO could qualify as a local ordinance and relieve east Bay communities from the state mandate. My recollection is that Piedmont has adopted the state Model Ordinance.