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Wording is a Hoax Mission Viejo residents were led to believe the council majority rejected the idea of rezoning neighborhoods to very high fire hazard severity zones (VHFHSZ). The council’s 4-1 decision (Councilwoman Cathy Schlicht dissenting) to use interchangeable wording is a hoax on 15,000 homeowners. Following is Councilwoman Schlicht’s letter, which is in the public record from the July 2 council meeting. July 2, 2012 To My Council Colleagues and the Citizens of Mission Viejo: It is my view that the City's June 21, 2012 press release is very misleading in what it is NOT stating, sort of like leaving out "landscaping" from the price of the Tennis Resort plans, as we later learned. Government Code Section 51179 allows changes to the Very High Fire Hazard Severity Zone (VHFHSZ) maps if our city ordinances impose standards that are equivalent or more restrictive than state law. We have met those standards. Government Code Section 51179 (d) clearly states that those changes SHALL be final and SHALL not be rebuttable. As the city has met those non-rebuttable findings, Mission Viejo is NOT required to adopt a substitute map that includes ember intrusion hazard zones. The council has voted twice to reject the optional ember intrusion hazard zone maps. But now the council has proposed to accept and combine both the VHFHSZ and the optional ember intrusion hazard zone maps into a single map and then change the designation to Special Fire Protection Area (SFPA), which will encumber about 15,000 structures or about half of the city. The city's press release further states: "Some of the benefits to the SFPA are that it eliminates the state's record of VHFHSZ designation....as well as the state's vegetation clearance and fines, and does away with the state's real estate disclosure requirements for homeowners." That single sentence is distorting the facts on many levels. According to the staff reports and with concurrence from the OCFA, the city has met the findings for exemption from the state fire hazard maps, due in part because our vegetation clearance standards are greater than state requirements. Consequently, as the city is exempt from the fire hazard maps, the state does not have the authority to access fines; however, the municipal code and the OCFA have authority to levy fines for non-compliance. Secondly, the real estate disclosure requirement known as the Natural Hazard Disclosure Statement, per Government Code Section 51182, has indeed been eliminated because the city has rejected the fire hazard maps; however, the California Civil Code requires the disclosure of any known material facts that would have an impact on the value or the desirability of the property. In real estate, “disclosure disclosure disclosure “ is just as important as “location location location.” A property located in any kind of a special area, whether it be Mello-Roos or a Special Fire Protection Area, it should have to be disclosed to a buyer. One of the most important factors raised by the homeowners at the February OCFA meeting, was the concern about increased insurance rates, or cancelled policies. Comments have been made by public officials that creating this new fire hazard zone designation within the city should not have an impact on insurance coverage, as Cal Fire has a Memorandum of Understanding (MOU) with the Department of Insurance. However, if there was an impact, OCFA stated that California Fair Plan, an insurance of last resort, would be available. When I read the MOU, I was surprised to read that the Department of Insurance appears to be encouraging the insurance industry to pay attention to ember intrusion hazard zones. The top of page 5 reads: "The current inspection forms used by the inspection bureau(s) may not have incorporated a complete knowledge base conforming to national best practices and appear to focus only upon the distance to the hazardous brush with no attention to the impact of flying embers." My final comments on this June 21 press release, is the untimely notification to the 28 HOA management firms located within this proposed fire hazard designation. Not only is this insufficient time to notify homeowners who are now impacted by this greatly expanded zone, but the city placed the burden on HOA management firms when this is a city responsibility. Additionally, the city has not notified the families who do not live in a homeowners association, or the businesses within this fire hazard zone. Basically, the public has not been informed about this ordinance nor have had an opportunity to become fully aware of the implications of this pending ordinance. The letter of the law for noticing public meetings may have been met, but when virtually half of the city is going to be part of the Special Fire Protection Area (SFPA) designation, extraordinary means to inform the stakeholders should have been of the highest priority. Cal Fire acknowledges that public participation is an important part of the map process. In Mission Viejo, we have largely an uninformed public who were not given an opportunity to participate due to lack of knowledge. The city map outlining the SFPA lacked clearly defined boundaries, making it very unclear that about 15,000 properties will be registered in this zone. In reference to the June 18 OCFA Power Point Presentation, as well as city staff reports, it was clearly stated that the fire mapping process allows rejection of the fire hazard maps with "findings." It was explained that the city has met those findings based on its standards for vegetation management, fuel modification program and home hardening building codes. But apparently, even though Govt Code Section 51179(d) stated that findings cannot be challenged, the council majority appears willing to accept an optional creation of an ember intrusion fire hazard zone and thereby designating 15,000 homes into a Special Fire Protection Area. This new designation within our borders is a combination of the fire hazard maps that the council had rejected multiple times. The SFPA designation is a combination of the rejected Very High, High and Moderate Fire Hazard Maps. The SPFA designation is still a fire hazard zone. Real Estate disclosure laws as defined in the Civil Code, and I believe also in the Business and Professions Code, still require disclosure to the buyer. As earlier stated, the Department of Insurance is encouraging the insurance industry to include Ember Intrusion Fire Hazard Zones in its risk models. In doing so, the outcome for ember risk inclusion would make the insurance carrier become the enforcement arm by adding conditions for approval on policy renewals. OCFA Guideline C-04, dated 04/20/06, with an updated version currently being developed, makes the following two statements on Page 1 of 13: "The SFPA / VHFHSZ regulations were initially implemented on March 28, 1996 within designated portions of Orange County" "The SFPA / VHFHSZ have the same regulatory requirements." The US Forest Service acknowledges on its regulatory National Wildfire Programs Database, the OCFA SFPA / VHFHSZ guidelines and specific requirements including irrigation and groundcover. The City of Laguna Niguel Building Division has an OCFA Site Review Application #113 contains the following statement: The terms “SFPA” and “VHFHSZ” are interchangeable terms for high fire hazard areas designated by the State Fire Marshal. One of the questions found on the OCFA Planning and Development FAQ website: Do I need to submit plans for a gazebo, patio, or fireplace in my back yard? Such projects may require an evaluation by OCFA if adjacent to or in an area designated as a Fuel Modification Zone, Special Fire Protection Area (SFPA) or Very High Fire Hazard Severity Zone (VHFHSZ). The terms “SFPA” and “VHFHSZ” are interchangeable terms for a high fire hazard area designated by specific cities and the county. Contact Planning and Development at 714-573-6100 to inquire if your project is in this zone. Please submit the appropriate form, either the Accessory Structure Form or the Outdoor Fireplace Form in person or via fax to 714-368-8843. There is no charge for this service, and the process can generally be completed in 10 business days. Contact Planning and Development at 714-573-6100 to inquire if your project is in this zone I am emphasizing that “SFPA” and “VHFHSZ” are interchangeable terms for a reason. The Govt Code states that findings for exemption from the maps are non-rebuttable. The Resolution on this agenda tonight clearly states, with concurrence by the OCFA Fire Marshall, that there are "findings supported by substantial evidence" to reject the Very High Fire Hazard Severity Zone (VHFHSZ) maps. I am disappointed that the council majority are pursuing a SFPA designation. As someone who is employed fulltime in the housing industry, due to the SFPA designation, real estate disclosures are a requirement and new conditions placed on renewing insurance policies are a possibility. The SFPA designation carries requirements not only for the 15,000 property owners, but also for the HOA's - and that has not even been fully disclosed. The proposed Ready Set Go program, which is incorporated as part of the Special Fire Protection Area designation, is a program launched by the International Association of Fire Chiefs (IAFC). According to the April 5, 2010 IAFC press release, prior to launch, the OCFA was chosen to test and refine elements for the Ready Set Go program. As a pioneer for this program, is that why the OCFA is defiant in demanding that the city accept the twice-rejected ember fire hazard maps? In the proposed ordinance buried at the end of the back-up material, last sentence in Paragraph A(iii) reads: "Absent this areal designation the Orange County Fire Authority would not consent to the City Council's request for exemption from the Very High Fire Hazard Severity Zone maps." The Government Code Section 51179(d) is clear: Changes made by a local agency to the recommendations made by the director shall be final and shall not be rebuttable by the director. In my opinion, the OCFA is over-reaching - as a council, we cannot allow our community to succumb to an ordinance that will impact the private property rights of 15,000 stakeholders without their knowledge or consent. The proposed ordinance is making a declaration that the city has "satisfied the statutory requirements which authorize the City to determine that it is exempt from the map/zone adoption requirement set forth in California Government Code Section 51178." The city is exempt - period. If the Ready Set Go program is a voluntary program then it does not need a special zoning requirement for anyone requesting a consultation with the OCFA. But there appears to be more than meets the eye here, as the "property insurance companies will be active partners with the departments implementing the program this year" -- a quote from the April 5, 2010 IAFC press release. The 2012/13 OCFA Adopted Budget for the Ready Set Go program is as follows:
The Ready Set Go Consultation Sign up form contains this statement: OCFA will respond to your request as soon as possible. First priority will be given to residents that live in Very High Fire Hazard Severity Zones. Depending on the volume of requests, it may be several weeks or months before all requests have been fulfilled. Please do not re-submit your request So how is the OCFA going to be able to service an additional 15,000 property owners with 4 funded positions and a total county wide budget of $99,725? Why is it necessary to create a SFPA hazard map designation that has the potential to negatively impact the community when the program is implemented? As a proponent for all forms of public safety, I appreciate the outreach efforts of the OCFA, but question the methodology in attempting to force a fire hazard zone onto unaware and uninformed citizens. As we experienced in the 2007 California fires, and the wildfires burning today in Colorado, the results can be a catastrophic loss of life and property. We all recognize the importance of fire prevention measures and assessing the risks but the public needs to be part of the process - and it is they, the property owners, who need to agree to accept this OPTIONAL SPECIAL FIRE PROTECTION AREA, as the city has met the findings for exemption from the VHFHSZ maps, which are final and non-rebuttable. I would plead with my council members to step back and offer public workshops before voting on this legislation. Liabilities and risks need to be made known. Are adequate resources provided for fighting wildfires? What is the fiscal impact on the HOA’s common areas and open space maintenance? What will be the fees charged for the annual inspections? For the Ready Set Go program to be successful, you need public co-operation. Property owners need to be aware that in order to renew an insurance policy, the carrier might require fire-safe upgrades before renewal, such as enclosing eaves or replacing a deck with non-combustible materials. As a compromise, and since the OCFA states that“SFPA” and “VHFHSZ” are interchangeable terms, instead of creating a SFPA designation for 15,000 properties, let’s scale it back to include just the properties identified in the “VHFHSZ” maps, also known as Alternate 1. Reject the VHFHSZ maps, adopt our own scaled back version, and call it something different. And on the technical side - the city’s General Plan does not recognize a Special Fire Protection Area designation - would not creating any new zone require a General Plan amendment with public hearings and a CEQA process? |
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