COURTLAND _ In a precedent-setting decision, a state panel has overturned Yolo County’s decision to permit development of 162 housing units within the Sacramento-San Joaquin River Delta and at the base of a levee of questionable integrity. The vote was closely watched as a measure of state and local commitment to the Delta and flood safety.

The Delta Protection Commission rejected the Old Sugar Mill specific plan that Yolo County had approved last fall for 105 acres in the unincorporated town of Clarksburg. The 15 members of the commission (composed of local elected officials, special district representatives and state appointees) who heard the matter during a January 25 hearing that lasted more than six hours were divided over the project, but the majority were troubled by the housing component of the mixed-use plan.

The 1992 Delta Protection Act designates nearly 500,000 acres in five counties as the Delta’s “primary zone,” and an outer 240,000 acres as the “secondary zone.” The statute prohibits urban development within the primary zone unless proponents can show the development would not harm agricultural operations, wetlands or riparian habitat, water quality, migratory birds or public access.

“The primary zone is designated for the protection of agriculture,” said Patrick Johnston, a commissioner and former state senator who authored the Delta Protection Act. Project supporters undertook “tortured efforts” to justify the inclusion of housing in an agricultural area, he said, adding, “To put housing there and say we didn’t affect agriculture turns the argument on its head.”

Commissioner Katherine Kelly, chief of the Department of Water Resource’s Bay-Delta office, noted that the project’s conditions of approval require the applicant to complete a geotechnical study on the condition of the adjacent Sacramento River levee. If that study concludes expensive improvements are needed, the project conditions permit development to go forward anyway if the applicant and county conclude that repairs are economically infeasible.

“The way this project is set up is to allow people to move into an area where a levee may not be certified,” Kelly said. “That’s like a screaming red light saying, ‘Hey, pay attention to this.’”

The proposed project calls for up to 106 single-family houses, 56 units of cottage/cluster housing, 30 acres of industrial uses and 25 acres of commercial development (seeCP&DR Environment Watch, January 2007). The site is an old sugar beet processing plant that closed in 1993. Developer John Carvalho has already transformed part of the brick complex into winemaking and wine tasting facilities.

Proponents said the project would help local agriculture by providing a location for processing, and by offering housing for local workers. They contended that the Delta Protection Act permits certain development within communities that existed prior to the law’s enactment.

After Yolo County approved the project last fall, the Natural Resources Defense Council (NRDC) and a group called Concerned Citizens of Clarksburg appealed the decision. They contended the project violates the act and the policies that the commission has adopted to implement the act.

Opponents also contended that the project was out of scale in the small farming town of about 400 people, and that placing houses next to ag-industrial operations and 300 feet from vineyards would hinder farming.

“This project will forever change the town of Clarksburg,” said Greg Loarie, an attorney with Earthjustice who represented the NRDC. “Dense urban development and farming don’t mix so well.”

The project would be the first new housing development within the primary zone since it was designated, and the appeal was only the second — the first of any significance — to reach the commission since its creation in 1993. Although project proponents denied the commission’s decision would set a precedent, other people said differently, and the commission clearly felt the weight of the moment. The law’s author, Johnston, was appointed to the panel only recently, and state Sen. Michael Machado (D-Linden), a nonvoting member of the panel and the author of farm, flood and water legislation, stayed throughout the marathon hearing attended by about 150 people at the Courtland Auditorium.

Machado made clear he thought the county had approved the project without considering the broader flood-control context. Current Federal Emergency Management Agency maps show that the site has 500-year flood protection. However, virtually everyone concedes that the earthen levee is inadequate and that an ongoing Army Corps of Engineers remapping effort could place the site into the flood hazard zone lacking even 100-year flood protection.

Machado noted that the state Department of Water Resources is conducting its own study that could result in decertification of the levee as a buffer from a 100-year flood, but the state study won’t be complete for four years.

“Would the county then be willing to accept liability for any breach?” Machado asked rhetorically.

Yolo County Supervisor Helen Thompson, a former Assembly member, contended that the project conditions of approval require “the most aggressive flood protections in the entire Sacramento region.” Those include a 50-foot setback from the toe of the levee, a new geotechnical study, implementation of feasible mitigation measures, and raising living quarters five feet above the existing grade.

But project opponents seized on the flooding issue, which remains a hot topic in the region as ongoing evaluations cast doubt on the levee system (see In Brief, page 2).

“The county has not shown any evidence the area has 100-year flood protection,” argued James Pachl, attorney for Concerned Citizens. The project site is 10 feet above sea level, but 100-year floodwaters would be 25 feet above sea level, he said.

But proponents said the project is just what Clarksburg and the area need to keep the local agricultural economy healthy. County Counsel Phil Pogledich, who served as the primary advocate for the project during the hearing, said the site is a closed industrial plant in a community that needs economic development.

“The opportunities that this project bring do not expand the urban footprint of Clarksburg,” he said. “It’s an integrated redevelopment project that brings many benefits to the town of Clarksburg.” By clustering housing on a quarter of the site, the project eliminates the need for housing in other rural areas, he added.

“It won’t open the door to anything,” Pogledich said of project approval. “We are not setting a precedent for rapid urbanization of the Delta primary zone.”

“The old sugar mill site is within the urban limit line of the town of Clarksburg,” added Supervisor Thompson. The project “takes not one inch of agricultural land from the Delta.”

Local residents appeared almost evenly divided on the project. Opponents generally endorsed the industrial and commercial portions of the project, but they said the housing was out of place and that it would cause unwanted land use conflicts and traffic. Proponents said the housing is much-needed and that the addition of new children to town could spur re-opening of the recently closed elementary school.

“We don’t want to go out on the agricultural land and start creating lots,” said Commission Chairman Mike McGowan, also a Yolo County supervisor who voted for the project at the county level. “The intent is to build more houses on less acreage. … If we’re going to build in Clarksburg or Courtland or Walnut Grove, you want to maximize use of the land.”

The housing, which is generally seen as the project’s economic engine, however, caused the majority of commission members to halt. Robert Calone, of the West Delta Reclamation Districts and a charter member of the commission, quoted from commission policies that recommend buffers of 500 to 1,000 feet between agricultural operations and housing. Yet the project’s buffer would be only 300 feet from the first planting to a house — and only about 225 feet of the buffer would be on the project site.

In addition, said Commissioner Topper Van Loben Sels, of the North Delta Reclamation Districts, the project would place new residents in close proximity to agricultural processing operations.

Although the commission made its intent clear at the January 25 hearing, it is scheduled to vote formally based on written findings later this month. The project will then return to Yolo County. Litigation is very likely. Developer attorney Kristen Castanos and the county had already argued that the commission did not have jurisdiction.