The following comments on the April 23, 2021 draft of the State Fire Safe Regulations. Changes are needed to ensure compliance with PRC § 4290, as well as to align the regulations with SB 901 and make them consistent with public safety as promoted by BOF since the first regulations were issued in 1991. Technical Corrections are provided in a separate document, as are copies of prior comments submitted to the Board of Forestry on the prior drafts.

A. Article 1. Loopholes, Exceptions and Exemptions
1. Exceptions to Standards § 1270.06.
Although there is language requiring Substantial Compliance and Substantial Evidence, the exception process is open to abuse by local jurisdictions, and if not tightened up, does not implement the requirements of PRC 4290 for BOF to “adopt regulations implementing minimum fire safety standards related to defensible space…”.

We have seen recent examples of the exception process in Sonoma County applied to completely circumvent the 20 ft road width requirement in the current regulations. The County allowed 10-12 ft wide dirt and gravel roads, over a mile long, with turnouts spaced up to 1000 ft apart, to be deemed equivalent to a 20 ft wide road. It also claimed that this provided safe concurrent fire apparatus ingress and civilian evacuation, and unobstructed traffic circulation during a wildfire emergency as required under the current regulations. ‘Concurrent’ means ‘at the same time’. The reason for two 10 ft wide traffic lanes is to allow vehicles including fire apparatus to pass at the same time; a 10-12 ft wide road with turnouts does not come close to achieving that (note comments in October 23, 2020 letter to Sonoma County from Sr. Board Counsel, Attachment 1), and allowing exceptions to encompass an entire road and to deviate so widely from the intent makes a mockery of the fire safe regulations. Even if revised regulations are adopted that provide a reduced standard of 14 ft width for much new development on existing roads, the local exception process could then reduce this to 10 ft wide or less, and reduce turnout frequency substantially for the entire length of a road. Both of these examples are clearly not meeting the minimum standards mandated by BOF pursuant to PRC 4290. Even the BOF February 8 draft of the regulations prohibited the exception process from being applied to the reduced regulations for existing roads below the thresholds; this prohibition needs to be retained.

I propose adding a new section (f) to § 1270.06 to prevent local jurisdictions from using the exception process to circumvent the intent and required minimum standards of the fire safe regulations:
“Notwithstanding the foregoing, no Exception shall be granted that applies to more than 200 linear feet of a Road or Driveway, or no more than 10% of the total Road or Driveway length, whichever is less.” This also applies to the length of dead-end roads. Furthermore, no exceptions can be applied to the minimum standards in § 1273.12 for Existing Roads below the thresholds in § 1273.00(c).

2. Exemptions
(a) Post-fire rebuilds. The exemption for repair or reconstructions of buildings damaged by wildfire was relaxed from that in the Emergency Regulations, such that now even illegally constructed structures can be rebuilt as exempt from meeting the fire safe regulations. There is no size limit on the reconstruction. Thus the local jurisdiction needs an ability to require that illegally constructed structures be brought up to their local requirements for permitted structures, but as written the only requirements that a local jurisdiction can impose are to ensure reasonable ingress, egress, and evacuation. There is no longer any restriction on the size of the reconstruction or repair, only on a change in use. For example, a 1-bedroom home that had been a vacation rental for 2 people could be reconstructed with no change in use into a much larger home used as a vacation rental for 12 people, thus increasing the number of people needing to safely evacuate.

I propose adding a new (5) and (6) to section to § 1270.03(c):
§ 1270.03(c)
“(5). Notwithstanding the foregoing, no reconstruction or repair shall exceed the original size by more than 20% for legally constructed structures.
(6) The local jurisdiction can impose size limitations and other limitations on the reconstruction of prior illegally-constructed structures in accordance with local regulations.”

(b) ADUs.
The prior Emergency Regulations exempted Accessory Dwelling Units (ADUs) and Jr. ADUs from the fire safe regulations. At that time, BOF stated that before such an exemption would become part of the non-emergency regulations, analysis on the potential impacts of potentially doubling of the population needing to evacuate on subpar roads would be undertaken. No such analysis has been done. Thus, as currently proposed, ADUs could be built for homes that already are on subpar roads, both creating and exacerbating evacuation hazards and fire apparatus ingress.

I propose adding at the end of § 1270.03(d):
“… as long as the accessory or junior accessory dwelling units are built for homes that currently meet the requirements under the State Minimum Fire Safe Regulations.”

3. Need revised definitions for New Roads and Existing Roads.
The proposed definitions, which were inserted in the draft with no opportunity for public comment, have major loopholes: e.g., anyone- a private citizen or a county – could construct a new road, potentially to provide secondary access to an existing community or to privately owned parcels, but not as a part of a Development application. Since such a road would not fall under the proposed definition of New Roads, it would not need to be constructed to the standards for New Roads. By definition, it would then be deemed to be an existing road and subsequently, new development could occur on a new subpar road. This also is true of roads previously exempted if solely for agriculture, mining or timber harvesting.

Please revise the following definitions as shown with red additions:
Existing Road: A physical Road constructed and used by vehicles prior to a Development proposal, provided that if constructed after January 1, 1991, it complied with the SRA Fire Safe Regulations in effect at the time it was constructed, [alternatively, provided it was constructed and used by vehicles prior to 1991], and further provided that it was not exempted pursuant to § 1270.03.

New Road: Any road constructed after the date of the 2021 State Fire Safe Regulations, including but not limited to by a private citizen, a corporation or LLC, or a local, state, or federal jurisdiction. Any Road previously exempted pursuant to § 1270.03 would need to be brought up to New Road standards before new development (e.g., for development not exempted pursuant to § 1270.03) could occur.

B. Article 2.
1. Existing Roads and Defining the Thresholds.
(a) The April 23 draft provides reduced regulations for existing roads for residential, commercial, and industrial development despite the increased threat of wildfire exacerbated by climate change and the fact that people cause most wildfires. This is a very bad policy and a huge regression in public and environmental safety from the 2020 regulations. The initial discussion by Board members was that a lessening of requirements on existing roads for single-family residential (not commercial or industrial) construction was warranted.

The rationale given in the Initial Statement of Reasons (p. 20) for choosing 3 or more new parcels as a trigger for the upper threshold on existing was roads was:
“This division into 3 more parcels was selected to reflect the distinction in these regulations between a Driveway and a Road; once a vehicular pathway serves more than 2 parcels, it must meet the stricter Road standards in this Subchapter rather than the Driveway standard.”

However, the definition of a Driveway only allows it to serve up to 2 parcels with no more than 2 Residential Units, and excludes it from serving any commercial or industrial use; and the definition of Road includes that it provides a vehicular pathway to any commercial or industrial use. This logic dictates that only single-family residential construction for up to 2 Residential Units per existing parcel should be included in the lesser standards for existing roads. Approval of up to 2 new parcels should only be excluded if no more than 2 Residential Units are constructed per parcel, and any and all commercial or industrial use should be included in the stricter ‘above the threshold’ standards for existing roads.

Thus § 1273.00(c) for above the threshold should be modified as shown in red:
“(1) the permitting or approval of three (3) or more new parcels or of one (1) or two (2) new parcels if for more than two (2) single-family Residential Units each, or development on any existing parcel if for more than two (2) single-family Residential Units each, excluding lot line adjustments….”
Add a new section (4) to § 1273.00(c) page 23, after line 2:
“§ 1273.00(c) (4) any commercial or industrial development or use.”

(b) The definition in § 1273.00(c)(2) and (3) (page 22 line 25-26; page 23 line 1-2) of what constitutes “increase zoning intensity or density” and “increase use intensity or density” is left solely to the local jurisdiction. This could be applied very differently in different counties and is a huge loophole ripe for abuse. The addition discussed above to include “any commercial or industrial development or use” under the criteria that trigger the stricter set of road regulations helps, but a definition of what constitutes increased intensity or density is still needed.

(i) I suggest that for change in zoning, increased intensity or density includes any increase in allowed number of residences (single or multi-family), or any change in zoning from residential to commercial or industrial.
(ii) I suggest for change in use permit, increased intensity or density is increase in number of people or vehicles traveling to or on the site (e.g., making deliveries, picking up products, increased number of employees, service providers and/or visitors), by the lesser of 10% or 10 people, and/or 5 vehicles per day; or an increase in structures, by 5000 sq ft or more.

2. Dead-end Road Limitation for Existing Roads: The April 23 draft removed all dead-end road limitations for development on existing roads, both above and below the threshold. (Note that even the prior February draft kept a 1-mile limitation on existing dead-end roads above the threshold). There was no rationale for why this was removed, and it is completely contrary to what is in the ISOR. This is a huge regression in public safety and environmental impact and does not reflect the stated interest of easing regulations for single-family home construction.
The ISOR (p. 28) was very specific that the working group of Fire Chiefs wanted to reduce the dead-end road limit to ½ mile, stating that this was a very important part of safety, that fire regulations in other states had these or stricter requirements. “Survey information received from the Fire Chiefs Working Group noted concerns for the maximum lengths of the Dead­end Roads and suggesting shortening the maximum allowable lengths for Dead­end Roads would provide for greater fire safety than the current standards. Additionally, when completing an on­line search for the maximum length of a Dead­end Road allowed throughout the country, it was difficult to identify any standard that allowed roads longer than 1⁄2 mile in length, and most agencies’ maximum allowable lengths were less.”
Please add that:
The one-mile Dead-end Road limit applies to (i) all new development on Existing Roads above the threshold in § 1273.00(c), (ii) all commercial and industrial development or use as proposed above (which is now included in the proposed revision to § 1273.00(c) as always above the threshold), and (iii) all development in VHFHSZ, whether below or above the threshold (i.e., add these requirements to § 1273.12, page 47, and add a new section for Maximum Length of Existing Dead-end Roads as 1 mile for all development other than 1 or 2 single-family homes on a single parcel).
The current draft has no or minimal turnaround requirements. This is a huge safety risk, and regression from the 1320 ft spacing in the 2020 regulations.
Add that:
“For all existing Dead-end Roads (both above and below the threshold), Turnarounds must be at the terminus and spaced every 1320 ft, or at the midpoint for existing Dead-end Roads less than 2640 ft.”
These changes will allow single-family residential construction on existing long dead-end roads but with the added safety of turnarounds but will maintain a 1-mile dead-end road length on existing roads for commercial or industrial development, and or multi-housing residential development.
3. Additional Requirements for Existing Roads Below the Threshold.

Grade: The new proposed regulations allow grades to exceed 25% with the only limitation that this cannot be for more than 500 linear feet. There is no upper limit on grade whatsoever, no requirements that the road be treated or paved to prevent slippage, and no requirements for cool-down areas (as was in the Dec 2020 draft for grades up to 20%).

Please add in § 1273.12(c) (p. 48, line 10) requirements that road surface for grades 16-25% shall meet requirements of § 1273.04(b) page 32; that grades above 20% must be paved and cannot exceed 500 linear ft; and that grades can never exceed 25%.

Gates: Please add that gates must have requirements of § 1273.11(a) (page 46).

Horizontal Clearance: There is no requirement for horizontal clearance on existing roads below the threshold. Please add that horizontal clearance shall be 13.5 ft for all roads.

Bridges: Please add that bridges/elevated surfaces must be able to bear at least 36,000 pounds, and that bridges/elevated surfaces with only one traffic lane shall have unobstructed visibility from one end to the other with turnouts meeting requirements of § 1273.09 at both ends.

Road width: Please add in § 1273.12(a)(1), that the minimum width is a 16 ft Traffic Lane and must also have 2 feet of drivable Shoulders (i.e., 18 ft clear width) in addition to the Turnout requirements in § 1273.12(a)(3). This would enable concurrent ingress and evacuation as in current and prior regulations, a must for public safety.

Please remove “New” from § 1273.00(a), and thus add back to § 1273.00 the requirement that all roads provide for safe concurrent Fire Apparatus ingress and civilian evacuation, and shall provide unobstructed traffic circulation during a wildfire as set forth in this Article. Removing this requirement for all existing roads is unconscionable.

4. Wildfire Rebuilds
The April 23 draft no longer says the destroyed structure had to have been legally constructed. Thus this section needs to give the local jurisdiction the option to require proper permitting which it currently lacks; it currently only allows for additional requirements to ensure reasonable ingress, egress and evacuation and emergency response. Please insert “proper permitting” after ‘ensure’ in § 1270.03(c), line 7.

5. Bridges
Confirm on p. 32, line 1, in § 1273.03(d) that the width of one Traffic Lane is 12 ft on a Bridge, not 10 ft. This is not stated in § 1273.05 Width, which only has width for a One-way Road of 12 ft.

C. Article 3.
Does Article 3 apply to existing roads below the threshold? It seems not to, based on § 1273.00(b), which then violates PRC § 4290.

A full programmatic EIR needs to be conducted for the proposed State Minimum Fire Safe Regulations unless they are revised such that there is no reduction in regulation from the 2020 non-emergency regulations for any new development.

E. Attachment
Attachment 1: October 23, 2020 letter from Sr. Board Counsel Jeff Slaton addressed to Ms. Linda Schiltgen, Deputy County Counsel, Sonoma County