By Alan Pryor
On the City Council agenda consent calendar for tonight’s meeting, Staff is recommending that Council reapprove and amend last year’s expired wood burning ordinance that was effective from last November 1, 2012 through February 1, 2013.
That ordinance, the first wood burning ordinance in Davis’ history, prohibited wood burning on those days otherwise designated by the Yolo Solano Air Quality Management District as voluntary “Don’t Light Tonight” alert days. Exceptions were allowed in cases of power failure, economic hardship, and the lack of alternative gas or electric heating sources. Residents burning in EPA Phase II-approved wood or pellet stoves or burning manufactured wood logs were also exempt. Last year, there were only 16 days when burning was so restricted out of the 120-day wood burning season – or less than 10% of the days.
The surprising aspect of this consent calendar item developed and proposed by Staff is that Council had scheduled September 24th for them to consider the Natural Resource Commission’s (NRC) most recently recommended wood burning ordinance for the upcoming winter. These recommendations were unanimously approved by the NRC on July 22 and essentially propose that any future wood burning regulations in Davis instead be on a complaint-based “nuisance” basis – much like Davis’ existing noise ordinance.
So what happens if Council approves Staff’s proposed wood smoke ordinance on tonight’s consent calendar without any discussion or deliberation and then they additionally approve the NRC-recommended ordinance when it is fully agendized 2 weeks later? Well, according to Staff’s analysis, if that occurred Council would decline to have a 2nd hearing of the first ordinance passed tonight which would render it not effective. Then they would instead schedule a new 2nd hearing for the NRC-recommend ordinance after which it would then be effective 30 days later.
If at this time you are scratching your head in bewilderment as to why Staff would propose such a convoluted scheme to consider two completely different wood smoke ordinances on successive meetings, you would not be alone. Why not just consider both possible wood burning ordinances at once, as it would seemingly be the logical and most efficient way to deal with the matter?
Well, here is where Staff starts doing a dosey doe. According to Staff, “This measure is intended to ensure that wood smoke enforcement can begin with the start of the burn season. A full discussion on wood smoke and the Natural Resource Commission recommendation will be on the Council agenda on September 24. However, if an ordinance is introduced at that point, it would be November 8 at the earliest before it could take effect.”
Well, on the surface this approach certainly does seem to be proactive and protective of the good citizens of Davis. If Council approves Staff’s proposed ordinance tonight with no discussion or consideration, then Staff’s ordinance could take effect one week earlier (on November 1) than the NRC’s recommended ordinance according to Staff. Unfortunately, this is not true.
Staff is fully aware that either Staff’s or the NRC’s recommended wood-burning ordinances could be approved by Council at their September 24 meeting and still be in effect by November 1st. All that is required is for Council to designate the newly approved ordinance as an “urgency” ordinance. In fact, this was exactly what the Council did last year when they approved the prior wood burning ordinance 1 year ago.
So what is really going on here? What is Staff really trying to accomplish by proposing this complicated scheduling dance? Other members of the NRC have similar concerns.
On September 8, NRC Commissioner Ben Bourne wrote to Staff and other Commissioners protesting this attempt by Staff to pre-empt the NRC’s recommended ordinance.
In that memo, Mr. Bourne stated, “The unanimous decision among the Natural Resources Commissioners is that measures taken over the last several years to address the sensitivity of some community members to wood smoke have been largely ineffective at resolving the root cause of wood smoke related complaints. This includes the 2012/13 wood burning ordinance. The NRC Wood Smoke Subcommittee therefore put a significant amount of effort into drafting an ordinance which we feel will more effectively meet the needs of our community, and to do so before the start of the next burn season.
“If the City Council accepts a staff recommendation to re-adopt the existing ordinance–in spite of the NRC’s re-draft and recommendation–then I believe we risk significant negative publicity when the ineffective ordinance is re-instated, and again when the Council takes up consideration of the NRC recommendation once the burn season is under way.
That memo was followed by another memo to Staff and NRC Commissioners written by Commissioner Matt Williams. He stated “…I concur with Ben’s original point, and believe that unless there are legal reasons that I am uninformed about, a gap with no ordinance would appear to be preferable to continuing an existing ordinance that the NRC members overwhelmingly stated was an ineffective, dare I say bad, ordinance. The Wood Smoke Subcommittee took that clear, formalized statement by the NRC and formulated the new ordinance, which the NRC saw as a significant improvement. Not knowing that events would play out the way they have, we didn’t take the step of formally taking a vote about whether no ordinance was preferable to the existing ordinance, but I suspect that if such a vote had actually been moved and seconded, it would have passed.”
Clearly, at least some on the NRC share a concern about Staff’s efforts in this matter.
I am personally concerned about Staff’s current proposal because in the past Staff has never, ever been supportive in any way of any of the NRC’s past efforts to investigate, develop, and promulgate meaningful, effective wood burning ordinances. Even as recently as last May, Staff recommended to the NRC that there be no wood burning restrictions at all during the upcoming 2013-2014 wood burning season. Staff made this recommendation to the NRC even before Staff had even received the 2012-2013 Analysis of Citizen Wood Smoke Complaints report from the NRC’s Wood Smoke subcommittee.
One of the means Staff has repeatedly used to delay Council consideration of matters approved by the NRC but not supported by Staff is by not forwarding recommendations and reports from the NRC to the Council in a timely manner.
Indeed, for the last 3 years Council has requested each fall that Staff get the NRC’s annual evaluation of wood smoke problems and recommendations to Council by last summer of the following year. This is so they can be considered by Council in a timely basis before the immediate onset of the wood burning season.
This specific time-based directive by Council to Staff has not yet been met by Staff even once. In fact, the reason last year’s wood smoke ordinance needed to be passed on an urgency basis last October was because Staff had failed to present materials to Council in a timely manner.
This year is now the 3rd straight year that the NRC has approved a recommendation for a wood smoke ordinance in July for forwarding to Council. Yet none of the information developed by the NRC this year has yet been forwarded to Council and the NRC’s recommendations were not initially even scheduled by Staff to be before Council at all this year.
Given this track record of Staff, I believe the interests of open government can be best served if Council does not approve Staff’s proposed wood smoke ordinance tonight without full and open discussion and deliberation. As such no action should be taken until Council can otherwise also fully consider the NRC-recommended ordinance in two weeks.
Next week an additional article will be submitted to the Vanguard that discusses the specifics of the NRC’s current recommendations for regulating wood smoke in Davis this upcoming wood burning season. It will also present the results of the Davis Wood Smoke Complaint Study conducted for the 3rd winter by the Wood Smoke Subcommittee of the NRC.