LAKE COUNTY, Calif. – A judge has issued a proposed ruling in a lawsuit filed by a group that sued the county over a building project on Rattlesnake Island, finding there was not sufficient evidence to support allegations that the county didn’t require sufficient environmental studies before allowing the project to move forward.

Judge Michael Lunas issued the proposed statement of decision on Tuesday in the Friends of Rattlesnake Island’s suit against the county of Lake and the Lake County Board of Supervisors.

Emeryville resident John Nady, who has owned the 57-acre island off of Clearlake Oaks since 2003, was named as a real party of interest in the suit, which was filed in late 2011, as Lake County News has reported.

Friends of Rattlesnake Island, which formed shortly before filing the suit, sought a writ of mandate in its suit against the county as well as a requirement that an environmental impact report be completed before Nady could go forward with building a 2,930-square-foot residence, 1,258-square-foot caretaker's cabin, standalone bathroom and utility trenching on the island.

Lunas found the claims in the lawsuit alleging that the county failed to carry out enough environmental study to lack sufficient evidence, and said that zoning ordinances allowed Nady to use the island for residential purposes, with the island having been used for similar purposes for years.

Friends of Rattlesnake Island’s attorney, Rachel Mansfield-Howlett, did not respond to messages seeking comment, and Lake County News was unable to make contact with Nady’s attorney, Frederic Schrag.

County Counsel Anita Grant said Wednesday that, because the decision is still not final, she can’t offer much in the way of comment at this point.

Lunas said the parties have 15 days to serve and file objections to his statement of decision. He will consider those filings in a final statement of decision.

Sarah Ryan, one of the members of the Friends of Rattlesnake Island, said the group needs to confer and determine a way forward, since Judge Lunas’ proposed ruling is allowing them to submit additional briefs. “We will definitely take advantage of that.”

Ryan said the proposed decision does not take into account certain facts, and she expects Mansfield-Howlett will submit that information on behalf of the group.

The suit was filed in response to the Board of Supervisors’ 3-2 decision in September 2011 to grant Nady’s appeal of a May 2010 Lake County Planning Commission vote requiring him to complete a focused environmental impact report on the island’s cultural archaeological resources.

One of the group’s key concerns is the island’s status as a cultural, religious and political center for the Elem Pomo, who call it “Elem-Modun.”

The island is the location of many prehistoric and historic sites, and was placed on the California Register of Historical Resources in 2008.

Elem tribal members say the island was illegally taken from them in 1877.

Lunas, the newest judge on the Lake County Superior Court bench, heard arguments in the case on Feb. 21.

“The County conducted environmental review of the impacts to aesthetics and adopted mitigations designed to reduce those impacts to a less than significant level,” Lunas wrote in his 39-page proposed decision. “There is no substantial evidence to demonstrate that potential impacts were not identified or that the mitigation does not reduce the potential impacts to a less than significant level.”

Judge Lunas found that there was no substantial evidence to show that there were potential project impacts that the county didn’t consider or that the project would cause “a substantial adverse change in the significance of the Island, or any part thereof, as a historical resource.”

He also stated that the evidence presented didn’t prove that the project would prevent the island from being included in the National Register of Historic Places and the State Register of Historic Resources.

A brief history of the island’s planning issues

Rattlesnake Island has been the source of numerous public planning hearings, county actions as well as legal wrangling for nearly a decade.

According to county and court documents, Nady first proposed to build a caretake dwelling and standalone field bathroom on the island in 2004, applying for and obtaining septic permits for the buildings.

In January 2005, the Board of Supervisors sought – and received – a court order to stop Nady’s building project until mitigation and artifact studies were completed after it was determined that the county incorrectly issued him the septic system permits.

Later that month, the Lake County Planning Commission ordered Nady to carry out further study before beginning his project.

In April 2005 Nady applied for the permits to complete his proposed project, revising his plans in October 2007 to include the main residence.

In 2008, the county contracted with archaeologist Thomas Gates to evaluate the sites archaeological resources, with Gates performing an investigation the following spring.

“In sum, Gates found that the discovered archeological materials did not present much further information potential and, in his opinion, with a high degree of certainty, there were not present any unique archeological resources at the site of the Project,” according to Lunas’ proposed decision.

Based on an evaluation of Gates’ work, the Community Development Department prepared an initial study that identified potential impacts to historical and archaeological resources and aesthetics, proposed mitigation and mitigation monitoring measures to reduce impacts. County staff recommended approval of the project based on a mitigated negative declaration.

In May 2010, the Lake County Planning Commission voted to require that Nady complete a focused environmental impact report to look specifically at Rattlesnake Island’s cultural and archaeological resources.

The Board of Supervisors agreed to hear Nady’s appeal of that decision, with Nady arguing that a mitigated negative declaration be sufficient instead.

The appeal was heard over two meetings in August and September 2011, before the board voted 3-2 – with Supervisors Anthony Farrington and Denise Rushing dissenting – to allow Nady to move forward without completing the focused environmental impact report.

Friends of Rattlesnake Island would later apply unsuccessfully three different times to get a restraining order to stop further work on the project.

The group filed its lawsuit against the county in November 2011.

Judge’s take on the evidence

Lunas’ proposed statement of decision went through a list of items he said lacked substantial evidence.

Among them, he questioned the claims in the suit that the project has altered or substantially changed the archaeological resources, that unique archaeological resources existed at the project site or that such resources may be substantially adversely changed.

An Elem Pomo was not used as the project’s American Indian monitor, but Lunas didn’t find evidence that the absence of an Elem monitor impacted the environmental review’s validity or integrity.

“The values and feelings that the Elem Pomo have for the Island as a historical and spiritual place are definite and certain,” Lunas wrote. “However, this Project is not the barrier to the physical contact, access and use of the Island – Nady’s ownership controls those claims.”

The inquiry that the Friends of Rattlesnake Island group is seeking under the California Environmental Quality Act relates to whether the project “will affect the environment of persons in general and not whether a project will otherwise affect particular persons in a specific manner,” Lunas said.

Lunas said that, based on zoning ordinance, Nady has the right to construct two residences and use the island for residential purposes.

“For years, the Island has been substantially exposed to the type of use and activities occasioned by residential occupancy, involving farming, ranching and recreational activities,” Lunas wrote. “These activities are not subject to CEQA review and have been lawful use of the island by the owner. There is no substantial evidence to suggest that the residential use of the Island intended by the Project will cause any real change in that environment or the utilization of the lands by Nady.”

Lunas ordered Nady’s counsel to prepare and present a form of judgment in preparation for a final decision.

Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.

052213 Friends of Rattlesnake Island Proposed Statement of Decision

CLEARLAKE, Calif. – The same week as the Lakeport City Council held a first reading on a medical marijuana cultivation ordinance, the Clearlake City Council is set to discuss its own ordinance to govern where marijuana is grown in the city.

The meeting will begin at 6 p.m. Thursday, May 23, in the council chambers at Clearlake City Hall, 14050 Olympic Drive.

City Manager Joan Phillipe is taking to the council a proposed ordinance that mirrors the county’s medical marijuana cultivation ordinance, which the council previously had indicated it wanted to use as a template.

The city’s ordinance proposes the following maximum plants numbers and parcel sizes, with associated setbacks: half an acre or less, 6 plants, 10 foot setbacks on lots smaller than half an acre and 25 feet on half-acre lots; lots of between half and acre and less than one acre, 12 plants, 75 foot setback; one acre up to just under five acres, 18 plants, 150 foot setback from off-site residences; five acres to less than 40 acres, 36 plants, 150 foot setback to off-site residences; 40 acres or larger, 48 plants, 150 foot setback from off-site residences.

The ordinance also prohibits outdoor cultivation at mobile home parks – outside of a designated garden area – and multifamily dwellings, Phillipe said. In addition, processing of marijuana must be compliant with the number of plants that can be grown on those parcels.

Other business items on the council’s Thursday agenda include consideration of awarding a bid for the Safe Routes to School project, report on the progress regarding council’s direction to make Pomo Road a one-way street, consideration of a lease agreement between the city and Lake County Youth Services for the operation of the youth center at 4750 Golf Ave., and the first reading of an ordinance relating to state video service franchises.

The council also will discuss scheduling budget workshops for June 6 and June 20, and hold a discussion to determine if there is conceptual approval to move forward with a contract with Lake County Animal Care and Control.

Also on the council agenda will be two public presentations, one from Police Chief Craig Clausen extending his gratitude to community members and volunteers in the wake of the Mikaela Lynch search, and a proclamation designating May 2012 as Watershed Awareness Month.

Items on the consent agenda – considered to be noncontroversial and accepted as a slate with one vote – include minutes from the April 11, April 25 and May 9 meetings; authorization of a professional engineering services agreement for construction management and inspection of the city’s Old Highway 53 and Dam Road Safe Routes to School projects; receipt of a letter from Lake Community Pride Foundation giving notice of termination of the contract with the city for the use of 4750 Golf Ave. for the youth center; and consideration of a temporary street closure for a a portion of Golf Avenue between Lakeshore Drive and Ballpark Avenue for a special event.

Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.

052313 Clearlake City Council - Draft Marijuana Cultivation Ordinance

LAKEPORT, Calif. – At its Tuesday night meeting the Lakeport City Council unanimously approved the first reading of a medical marijuana cultivation ordinance that would require grows be conducted within detached structures on residential properties.

The council will hold the second reading of the ordinance at its June 18 meeting.

In February, city staff had presented a draft ordinance to the council that prohibited outdoor cultivation and required all marijuana growing to take place in outdoor accessory structures, as Lake County News has reported.

Finding that draft document too limiting and open to legal challenges, the council directed that a committee be formed to work on an alternate ordinance.

Council members Kenny Parlet and Stacey Mattina, city staffers, and city residents Howard Holtz and Kim Beall were on the committee, which met in March and April before unanimously accepting a final draft that later, with some minor modifications, was recommended to the council by the Lakeport Planning Commission.

The document before the council on Tuesday night also prohibits outdoor cultivation and requires grows to be contained in accessory outdoor structures. However, it also puts the emphasis on complaint-driven enforcement.

The new document may not be free from legal challenges. Lower Lake attorney Ron Green, who attended and participated in the committee meetings, appeared on behalf of a group calling itself the Emerald Unity Coalition. He warned that the city could be sued if it implemented the new rules.

With marijuana grows already under way, Councilman Marc Spillman asked what city residents could expect this year if they report a nuisance grow.

Police Chief Brad Rasmussen said city staff intended to immediately begin a public education campaign about the ordinance and its requirements in advance of any enforcement actions.

“We want to educate the public to make sure the information is out there and everyone understands what the consequences will be before we implement enforcement,” he said.

City officials said the consequences for noncompliance are infractions and citations, and would be routed through the city's recently approved administrative citation process. Nuisances could be abated without fines.

“It's primarily complaint-driven,” said Rasmussen.

Parlet said the committee had included a section that emphasized that dealing with grows that were nuisances or caused public safety concerns were a priority.

“We're not looking for trouble,” Parlet said. Rather, he said they were attempting to protect city residents.

Councilman Martin Scheel asked City Attorney Steve Brookes if the city would need to wait until Jan. 1 for full enforcement. Based on a judge's ruling last year in a case challenging the county's medical marijuana cultivation ordinance, enforcements were prevented against grows that were already planted by the time the county's document was accepted through Dec. 31 of last year.

Brookes said waiting until January for full enforcement might be the prudent thing to do, with the first six months devoted to public education.

“My concern overall has been avoiding litigation, obviously, but also protecting the people that are not involved in the growing of medical marijuana,” and who have their own financial interests and property, said Parlet.

He said many people have become collateral damage, losing property values and use of their property. Referring to a recent California Supreme Court ruling that upheld local governments' zoning rules with relation to medical marijuana, Parlet said the court has shown the city can do what it's proposing.

City Manager Margaret Silveira said the ordinance will take effect 30 days after the final reading, and that they would work on education between that point and January and take up enforcement on a case-by-case basis.

During public comment, Holtz asked Brookes if noncompliance without causing a nuisance is a legitimate complaint.

Brookes said he couldn't speak for police, but he said if the city received a complaint about growing with no nuisance element, he didn't think they would be willing to address it.

Rasmussen said enforcement would be based on legitimate and verified complaints. If there wasn't a violation the city wouldn't take action.

If that is the true intent, “this is probably the best ordinance in the state,” said Holtz.

Community member Tom Kalk said he thought it was a good ordinance. Noting that he didn't think most people are interested in intruding in the lives of others, Kalk said he supported the ordinance and hoped the council would approve it.

In response to Holtz's comment about the ordinance, Green said, “It's kind of laughable to think that this is one of the best in the state. It's one of the worst.”

He said its ban on outdoor cultivation was likely to be challenged, and said the city should put of implementation until Jan. 1.

“We feel you ought to allow some outdoor cultivation,” Green said, calling the proposed ordinance “unreasonable.”

He said nuisance grows already could be dealt with through the city's nuisance laws, and added that the city should stay away from trying to control indoor cultivation, suggesting any rules established to address it wouldn't be enforceable.

Green wanted the city to increase the square footage for plants from 80 square feet to 120 feet, and said an environmental impact report on the new rules should be carried out. He also wanted the city to mirror the county's ordinance – which he had said had been challenged on the vested rights legal theory – in order to have uniformity.

Mayor Tom Engstrom asked Planning Services Manager Andrew Britton about the original growing area allowed for grows under the ordinance. Britton said it originally had been 50 square feet but was raised to 80 square feet.

Beall, who runs a child care business from the home she has owned for 23 years, said last summer she lost four clients – amounting to a $24,000 annual loss – because of the marijuana that could be seen and smelled in her neighborhood.

“If you pass the ordinance, what they're saying is, you could get sued,” said Beall.

She acknowledged that was true, adding, “But good fences make good neighbors,” paraphrasing poet Robert Frost.

Beall said the draft ordinance was designed to be a middle of the road approach. “We have to be able to live together.”

The city could wait to enforce it until Jan. 1, but that would mean the city would smell like marijuana all summer, which Beall said is not likely to help the tourist industry that's important to the area.

She said she believed the ordinance would work, and noted of the committee, “We worked really hard on it.”

Lakeport resident Terri Persons also encouraged the city council to adopt the ordinance. She asked that they be proactive in educating residents and persistent on enforcement.

Scheel said banning outdoor growing had been a concern for him. He said he was contacted by two people who represent those unlikely to come to a public meeting to voice their concerns. The individuals in question grew small amounts indoors.

“Don't ask, don't tell may have to suffice for us to get something passed,” he said.

Scheel said the city has to do something, explaining that in his neighborhood he can't stand to be outdoors due to the smell of marijuana grows.

Parlet said he didn't think they could wait until January, and said Green's remarks surprised him, considering Green had attended all but one of the committee's meetings and had been instrumental in some of the changes the committee had made to the document. There also has been a number of compromises, he added.

Parlet said Green's comment about the ordinance being the worst in the state was insulting. “Ours is anything but onerous.”

He pointed out that the city had brought in stakeholders to help craft the document.

The city is hearing “the same thing over and over again” from people – that they can't go outside and enjoy their property, Parlet said.

He said the ordinance was a great piece of work and added, “We need to move forward.”

Mattina emphasized the compromise that had been employed in writing the ordinance. She said there were people who wanted to grow marijuana everywhere and others who wanted it allowed nowhere. She said Britton collected a lot of information to help them in crafting the document.

“It's the right thing to do,” she said of passing the ordinance, adding that Green's threats to sue were not the right thing to do.

Scheel moved to approve the first reading, with Mattina seconding. The vote was 5-0.

Later, at the end of the meeting, Engstrom thanked Britton for his efforts, noting it must have consumed his time since February.

Britton emphasized it wasn't a staff-driven effort. “It really was the product of input from the community,” said Britton, adding that he was glad the city was moving forward on it.

The proposed ordinance can be seen below. It begins on page 23 of the packet.

Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.

052113 Lakeport City Council Agenda Packet by LakeCoNews

LAKEPORT, Calif. – A month after the county's sheriff cut off the Lakeport Police Department from its longtime access to a law enforcement records management system, the city of Lakeport filed a lawsuit against the county citing breach of a dispatch contract.

The suit, which names Sheriff Frank Rivero along with the county, was filed on Monday. It alleges breach of contract, breach of the covenant of good faith and fair dealing, and seeks declaratory and injunctive relief.

City Manager Margaret Silveira said Rivero's “unilateral and unjustified actions” have harmed the city and its residents, threatened public and officer safety, and undermined the “cooperative and mutually beneficial relationship” the city and county previously enjoyed.

No amount of damages can compensate the city for the breach of its contract, and so the city is seeking to obtain specific performance of the contract. Silveira said the city is seeking a preliminary injunction to return the parties to the status quo prior to the contract breach.

“Time is of the essence in this matter because every day the LPD is denied access to RIMS the public and officer safety is jeopardized,” Silveira said in an email to Lake County News.

County Counsel Anita Grant said Tuesday evening that she had not yet seen Lakeport's suit and therefore couldn't comment on it.

The lawsuit's filing follows Rivero's decision last month to cut off the Lakeport Police Department's access to the Records Information Management System, or RIMS, without warning, at first telling Police Chief Brad Rasmussen there were no issues and later, after Rasmussen went public with his concerns, alleging inappropriate uses and access.

However, during a special Board of Supervisors meeting called to discuss the matter, Rivero – when pressed – acknowledged that he could not say for certain if the access had been inappropriate because Lakeport's police officers were not under his management and he couldn't launch internal affairs investigations on their actions.

At the same time Rivero also cut off access to RIMS for Lake County Probation, and has a long-running issue with the District Attorney's Office over cutting off access to that agency as well.

Despite requests by the city, Lakeport Police and the Board of Supervisors to restore Lakeport Police's access, Rivero has refused to do so, according to Silveira, which she said is in “wanton disregard” of the county's and Rivero's obligations under the dispatch services contract between the county and Lakeport.

At the end of last month the Lakeport City Council emerged from a closed session discussion to vote to hire the law firm of Colantuono and Levin PC – which specializes in government-related casework – to handle the suit against Rivero, as Lake County News has reported.

Silveira said that for nearly 25 years Lakeport and the county have worked cooperatively with one another to share dispatch services for their respective law enforcement agencies.

Under that contract the city holds with the county, Silveira said the county's dispatch services include providing the city access to the county RIMS system, which she said is a vital tool law enforcement agencies use to gather and maintain all dispatch records as well as other local criminal offender record information.

The city maintains that under the dispatch services contract, Lakeport Police has the right to use RIMS to access records of its own calls for service through dispatch dating back some 10 years, as well as related law enforcement information gathered by the county and other agencies that pooled resources to centralize dispatching services within the county, Silveira said.

She added that the Lakeport Police Department relies on the records in the county RIMS database for day-to-day operations, using the information to conduct investigations, respond to requests for information from the public and media, prepare reports and conduct statistical analysis necessary to obtain and report on grant funding opportunities, and develop better policing methods by identifying and targeting areas of greatest needs.

She said Lakeport Police's access to RIMS protects public safety and help ensure the safety of its officers by quickly providing up-to-date information about potentially violent suspects before an officer arrives on scene.

As examples of the importance of the information, the case documents cite a May 1 incident involving a grass fire that had been dispatched near a Lakeport residence. A Lakeport Police officer had incomplete information through dispatch and was not able to quickly access information in RIMS about the fire's location.

In other instances since Rivero cut Lakeport Police's access in late April, officers have overhead incomplete radio dispatches involving sheriff's deputies “responding to potentially high risk incidents just outside the City limits,” and have not been able to quickly determine location in order to provide assistance, the suit states.

When filing cases with the District Attorney's Office, Lakeport Police is required to submit information including Computer Assisted Dispatch, or CAD, logs, from the RIMS system. Officers used to be able to easily access the information but now must call Central Dispatch and request that the CAD logs be prepared, a time consuming approach for both dispatch and officers, according to the suit.

Lakeport Police also needs to access the information in order to apply for grants and meet other grant reporting requirements, according to case documents.

In addition to having RIMS access restored, the city is asking the court to award attorney's fees.

No date has yet been set for an initial hearing in the case.

Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.