Tuesday, June 22, 2010

"Los Fábrica del Fertilizante" -- The Series: Can't Afford the Sewer Assessment? Don't Put Your House on the Market. . . Yet.

TO: Paavo Ogren, Director of Public Works, SLO County
DATE: 6/22/10
[Note: Ogren, like SewerWatch, is a big, and long-time, Laker fan.]

Hello Paavo,

Howya been?

How 'bout those Lakers!

Hey, real quick, I think I may have found a gigantic mistake that was made back in 2008 by your hand-picked Technical Advisory Committee for the Los Osos sewer project.

It appears that the composting toilet option for Los Osos wasn't considered in the project's Environmental Impact Report due to faulty reasoning.

A 2008 TAC memo reads:

    "Q. Will other on-site options be considered, e.g. composting toilets?

    A. It is important to understand that the EIR can only consider alternatives and mitigation measures that are “feasible”. In the context of an EIR, “feasible” means “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.”

    We are concerned that the community’s response to the majority of the alternative systems being suggested (such as the nitrogen sequestering system and composting toilet systems) would render these approaches infeasible. That is, the majority of residents may not wish to modify their daily lives to the degree required to make these systems a success on a community-wide basis."

And that's the end of the discussion.

Your team, it would appear, made a HUGE mistake there... big time mistake.

If I may, allow me to inform your TAC what really is "important to understand."

It is vitally "important to understand" that when it comes to composting toilets in Los Osos, this: "the majority of residents may not wish to modify their daily lives to the degree required to make these systems a success on a community-wide basis," is completely irrelevant.

When it comes to composting toilets in Los Osos, who cares what "the majority" of prohibition zone residents think?

That decision, according to many sources, is entirely up to the individual property owner.

And, just like I showed you in your office on March 21, 2008, and then followed up with the next day with this e-mail:

- - -
Hello Paavo,

Just a quick "thank you" for meeting with me. I very much enjoyed the conversation.

Afterwards, I went and had a beer at Gus's where I read the New Times story involving your "green" practices (which I applaud), and I saw how you just installed a greywater system at your house, and that reminded me, did you ever get a chance to read Item 19, specifically the part about composting toilets?

Because, I have to admit, after reading Item 19, and after reading about your greywater system, I don't see why a PZ property owner with a little bit of construction skill and a few extra grand can't do this:

Wake up Saturday morning, pump out their septic tank, fill it with sand, drive down to Home Depot, purchase a composting toilet system, install it, develop an "appropriate greywater system," and by Monday morning, that property owner would be 100-percent (legally) compliant, because they would no longer have a drop of discharge coming out of their decommissioned septic tank.

What's stopping anyone from doing that?
- - -

... there's doesn't appear to be anything stopping a prohibition zone property owner from doing that, today. They simply don't need permission from "the majority of residents" to drive down to Home Depot, and purchase a composting toilet, and they certainly don't need it from the TAC.

And, just like I personally showed you over two years ago in your office, if just ONE property owner in Los Osos goes the composting toilet route, ALL will eventually be economically forced to do the exact same thing. Because for each property that's exempt from the Prop 218 assessment ("no benefit, no assessment") that means it'll make all of the other already-through-the-roof assessments that much higher, and so on, and so on, until ALL PZ property owners will be economically forced to do the exact same thing.

And if the sewer assessment reaches, oh, say $1,000/month, trust me, the "majority of residents" will be overjoyed to make composting toilets systems "a success on a community-wide basis."

So, do you see what happened there, with that TAC memo? It's extremely, unbelievably, over-the-top interesting -- your TAC mistakenly thought that they actually had a say in whether a PZ property owner went the composting toilet route. Obviously, they don't.

Which means that, due to my super-tight rationale -- that once ONE property owner goes the composting toilet route, ALL will eventually be economically forced to HAPPILY "make these systems a success on a community-wide basis" -- the composting toilet option is a HIGHLY "feasible" "alternative" and, therefore, should have been "considered" in the EIR.

Heck, even the RWQCB in Item 19 called composting toilets "one of the few available alternatives," that "will lead to improved water quality."

And the even MORE interesting thing is that, if the composting toilet option HAD been considered in the EIR, like it clearly should have been, that "viable option" almost certainly would have come out on top as the "environmentally preferable" option... by far.

Something tells me that the EIR's analysis of composting toilets -- had it occurred, like it clearly should have -- would have sounded an awful lot like the RWQCB's Item 19, where it all but raves about composting toilets, and that, according to the RWQCB, are "not subject to Coastal Commission approval."

But, I guess we'll never know the EIR's take on composting toilets, because your department failed to consider that option in the EIR, due to terribly faulty reasoning.

By the way, you never responded to my 2008 e-mail from above, so I'll ask again (two years later): What's stopping a property owner in the PZ from buying a composting toilet and installing it today, and then arguing "no benefit, no assessment" to the pending sewer assessment?

I recently contacted a lawyer with a leading property rights association (both shall remain nameless... for now), and, when I asked him if a California property owner can get out of an already-passed Prop 218-style sewer assessment by installing a composting toilet, he told me, "I honestly don't know the answer to your question, which is whether a property owner can avoid paying an assessment for a public improvement that (will benefit) his property by taking steps to render the benefit obsolete. There is no case law on this issue to my knowledge. The text of Proposition 218 doesn't specifically address it."

He added, "I just don't know how a court would rule on that."

Which appears to make everything County/Los Osos sewer related seem VERY much up in the air, if you ask me, at least. Think about it, according to an attorney, we "just don't know how a court would rule" on any of this, because there's "no case law."

And -- and this is very, very important -- I'm also personally advocating to him, that his organization take this extraordinary, precedent-setting case, and argue that a property owner in the Prohibition Zone should be exempt from the sewer assessment, if that property owner installs a composting toilet(s), just like the RWQCB considered "requiring" in Los Osos as far back as 2004, and use an "appropriate greywater system," which could be as simple as their existing septic tank.

And who cares what "the majority" thinks... well, OTHER than your confused TAC.

If you would like to comment on your TAC's faulty position regarding composting toilets, I'd be very interested in hearing it.

As always, much thanks,
Ron

P.S.
A source has informed me that at least one property owner in Los Osos will be putting their house on the market this week, because that property owner feels that they can not afford the upcoming sewer assessment, estimated at over $200 a month.

So, if I could get an answer from you (this time) on this question:

"What's stopping anyone from installing a composting toilet in Los Osos?"

... as soon as possible, that'd be great, because, "it's important to understand" the extreme urgency of this matter.

P.P.S: I've published this e-mail on my blog:

sewerwatch.blogspot.com

###

[25 weeks down... 27 to go.]

6 Comments:

  • Amazingly, it was just four and a half years ago - hard to believe, seems like our whole lives - that the CCRWQCB chose our tiny CDO group as a "test case" to participate in the CDO process and ordered us to comply with various CDO requirements at our own expense. After all this time the water board has chosen to issue enforcement orders to no one else in town. And so we remain the perpetual "test case" at our own expense.

    Just about four and a half years ago a CDOer contacted the water board about installing composting toilets as a way to crawl out from under the Proposed Cease and Desist Order received in January 2006. The water board told the CDOer that, and I paraphrase, "The water board has no problem with composting toilets, but installing one would require approval by the County, and the County won't approve composting toilets in Los Osos."

    When that CDOer then asked the County if what the water board said about composting toilets in Los Osos was true, the County said that, and I paraphrase, "The County has no problem with composting toilets, but installing one would require approval by the water board, and the water board won't approve composting toilets in Los Osos."

    More recently a different CDOer asked Harvey Packard of the CCRWQCB Prosecution Team about a composting toilet as a way to crawl out from under the enforcement order. That particular CDOer said that Mr. Packard said that, and I paraphrase, "Even if you install a composting toilet you will still have to pay the County's sewer assessment and hook up to the sewer when it becomes available."

    Unfortunately, hooking up to the sewer when it becomes available is a REQUIREMENT of the Cease and Desist Order. Perhaps someone without a water board issued enforcement order would have better luck challenging the sewer with a composting toilet.

    If preserving the face and character of Los Osos is a priority, then composting toilets seem like an acceptable solution.

    By Blogger Bev. De Witt-Moylan, at 12:24 PM, June 23, 2010  

  • Bev, what a beautiful post.

    Bev wrote:

    "The water board told the CDOer that, and I paraphrase, 'The water board has no problem with composting toilets, but installing one would require approval by the County, and the County won't approve composting toilets in Los Osos.'"

    and;

    "the County said that, and I paraphrase, 'The County has no problem with composting toilets, but installing one would require approval by the water board, and the water board won't approve composting toilets in Los Osos.'"

    That's EXACTLY why I keep saying that a PZ property should NOT talk to the RWQCB or the County about composting toilets, and go Nike commercial on them: Just do it!

    I mean, c'mon, if all a PZ property owner knew was Item 19, and the fact that I personally know people in this county that use composting toilets (and those people went through proper county channels to get them), then, without saying another word to either of those agencies, it appears clear that, not only is it o.k. to install composting toilets, but HIGHLY preferable to a massive sewer project... and that would have been CRYSTAL clear by now, HAD Ogren's TAC NOT left composting toilets out of the EIR entirely, due solely to fauly reasoning, just like I reported in my main post on this thread.

    Bev wrote:

    "Mr. Packard said that, and I paraphrase, 'Even if you install a composting toilet you will still have to pay the County's sewer assessment and hook up to the sewer when it becomes available.'"

    No offense to Mr. Packard, but, frankly, he's lying there.

    Because, according to a leading property rights attorney that I contacted, "I honestly don't know the answer to your question, which is whether a property owner can avoid paying an assessment for a public improvement that (will benefit) his property by taking steps to render the benefit obsolete. There is no case law on this issue to my knowledge. The text of Proposition 218 doesn't specifically address it."

    In other words, Mr. Packard has no idea if a composting toileter will still "have to pay the County's sewer assessment and hook up to the sewer when it becomes available."

    Which is why I keep saying, "Just do it."

    Bev wrote:

    "Perhaps someone without a water board issued enforcement order would have better luck challenging the sewer with a composting toilet."

    That is a GREAT point, and one that has crossed my mind recently.

    The ideal candidate is someone that hasn't spoken to either the county or the RWQCB at all, and is just armed with Item 19, and the knowledge that there are ALREADY composting toileters in SLO County.

    That person, with that knowledge, would have NO IDEA that he/she's not doing the 100-percent right thing... which, they would be, by the way.

    Now, HAD Ogren included composting toilets in the EIR -- like he clearly should have -- their MIGHT be some arguments against them, but he didn't, and so there aren't.

    So, if you're that person: A PZ property owner that hasn't spoken a word to the County or RWQCB about composting toilets, and don't want a $200 - $300 sewer assessment, then here ya go: Just click here!

    "Free Shipping."

    By Blogger Ron, at 10:23 AM, June 24, 2010  

  • Ooops... blew a "their."

    "their MIGHT be some arguments against them"

    Of course, should have been: "there MIGHT be some arguments against them..."

    Some typos I can live with. Others? Not so much.

    By Blogger Ron, at 10:37 AM, June 24, 2010  

  • Ron said, '"Bev wrote:

    "Perhaps someone without a water board issued enforcement order would have better luck challenging the sewer with a composting toilet."'

    What I should have written was, "Perhaps someone without a water board issued enforcement order, with a lot of spare time, and an enormous pocketful of spare change to defend against criminal prosecution by the attorney general (who happens to be the counsel to the water board,) or from being fined out of existence by the water board for crossing them, would have better luck challenging the sewer with a composting toilet."

    By Blogger Bev. De Witt-Moylan, at 6:23 PM, June 26, 2010  

  • Bev wrote:

    "What I should have written was, "Perhaps someone without a water board issued enforcement order, with a lot of spare time..."

    From what I've read, it'd take about 10-minutes to order a composting toilet system online, and maybe... maybe a weekend to install it.

    Bev:

    "... an enormous pocketful of spare change to defend against criminal prosecution by the attorney general (who happens to be the counsel to the water board)"

    Hmmm... Jerry Brown, in the middle of a Governor's race, is going to go after an individual California property owner for doing the environmentally correct thing (by far), based on the RWQCB's own document?

    I'm not so sure about that.

    One thing's for sure, if he did, Meg Whitman's campaign would jump all over it:

    "Jerry Brown trampled private property rights, just because the property owner decided to do the environmentally correct thing."

    I can see the TV ad now.

    Bev:

    "... or from being fined out of existence by the water board for crossing them..."

    We'll soon find out, huh?

    By Blogger Ron, at 11:00 AM, June 27, 2010  

  • Jerry Brown, in the middle of a governor's race, continues to counsel and defend the water board right now against us, the "test case."

    P.S.
    By "a lot of spare time" I meant spare time to defend themselves, as we have had to do, against criminal prosecution and from being fined out of existence. A comma would have solved that confusion.

    By Blogger Bev. De Witt-Moylan, at 4:20 PM, June 28, 2010  

Post a Comment

<< Home