CHAPTER 2

When we started our research, we came across two important points with respect to the subject of development in areas prone to wildland fire.

The first point was the County’s requirement for an approved Fire Protection Plan for any large development (to be discussed in great detail later in this book).

The second point was (as stated in numerous County documents) that the approval of any development’s Fire Protection Plan is under the jurisdiction of its local fire protection district. In the case of the Stonegate development, the local district with jurisdiction is the Deer Springs Fire Protection District.[1]

When a development is to be built in the unincorporated territories of San Diego County in the wildland-urban interface (WUI), it is mandated by the California Fire Code (state law) that a Fire Protection Plan (FPP) be approved. This has to be done before the Board of Supervisors can rule on the project.

Developers in San Diego County never expected any local Fire District Boards to present any impediment to the process of getting their proposal to the Board of Supervisors. Historically, no local Fire District Board had ever disapproved any Fire Protection Plan, no matter how inadequate and poorly conceived that plan may be.

The DEER SPRINGS FIRE PROTECTION DISTRICT BOARD (DSFPD)

The Deer Springs Fire Protection Board is an elected body serving the residents of a fire district in unincorporated North San Diego County. Unlike residents in most other parts of the state, the residents of this district pay a surcharge (in addition to their state income tax and real estate tax) to fund fire protection in their Fire District. With the revenues collected, the elected Fire Board hires firefighters and provides equipment for fire protection and emergency medical services. Back in the 1990s the DSFPD contracted to hire firefighters from the State firefighting agency called CalFire (formerly called the California Department of Forestry and Fire Protection). The organizational chart of the Fire District places the Fire Chief squarely under the authority of the Board[2]. The Fire District Board has specific powers under state law, including the power to hire and fire employees and to sue and be sued.  Additionally, the Deer Springs Fire District is located in a State Responsibility Area (SRA), meaning that CalFire has determined that the primary financial responsibility of preventing and suppressing wildland fires rests with the state (PRC 4125). There are therefore layers of protection. Small fires are handled by the paid firefighting employees of the District (also under the supervision of CalFire). CalFire handles all major fires, bringing in State resources to help fight a wildland fire. There is also aid from the Federal government and the County. The Fire District Board is in charge as an administrative body to oversee the expenditure of the District’s money and to have input to fire codes. They consult with their employees, the Fire Chief and the Fire Marshal, who provide guidance and advice. There are numerous documents from the County stating that the Fire District must approve the Fire Protection Plan of any new development within its area before that project can move forward in the approval process.

*Note: The County Supervisors tried to take away the power from the Fire Board by enacting the Consolidated Fire Code in 2007. This gives the responsibility of approving a Fire Protection Plan to the Fire Chief of the District. However, the Board still has the right to hire and fire the Fire Chief and they are the ones who pay his salary and according to the organizational chart are above the Fire Chief. Therefore, the District Board can control who the Fire Chief will be. The problem is that a CalFire employee Fire Chief cannot voice his honest opinion regarding a Fire Protection Plan without possibly jeopardizing his career because of the political implications within his organization.   The mindset of CalFire will be discussed in later Chapters.

STONEGATE, THE DEER SPRINGS FIRE BOARD, and THE FIRE PROTECTION PLAN

Stonegate represents the kind of development that requires a Fire Protection Plan. It is massive, containing 2,700 homes that will house 10,000 to 13,000 residents. It is to be situated in an extremely hazardous, fire-prone area within a mountainous terrain (Merriam Mountain) that is marked by steep slopes (80% of the terrain has slopes of 25% or greater) and extremely limited roads in and out. The site contains over 1,100 acres of biological habitat that contains an immense fuel load of flammable vegetation (chaparral) that has been building up for 100 years, making it a true tinderbox. The Merriam Mountain site has moreover been specifically identified by CalFire in its 2003 planning scenarios[3] that state that any wildfire occurring in the area of Merriam Mountains and propelled by the Santa Ana winds will be intense, extremely fast-moving and virtually impossible to control.

The County has always worked with developers and the Fire District to ensure that any proposed development’s Fire Protection Plan would satisfy the Fire Personnel of the County and the Fire District. Now suppose, as the Stonegate papers suggest, there existed an agreement between Supervisor Horn (the North County Supervisor) and the developers to get the Stonegate development through the initial phases of the approval process, therein requiring the approval of a Fire Protection Plan. In addition, suppose that an adequate Fire Protection Plan could not be realized because of the project’s extreme density of population coupled with the difficult topography, poor infrastructure and extreme fuel load on and around Merriam Mountain. The plan could not adequately mitigate the fire hazard so that, if a development were built, the residents of the development would remain subject to a significant risk of injury or death due to a wildland fire within the project area.

In the past there is no doubt what would occur. The District Fire Board would do as much as possible to make the plan as safe as possible (being reasonable to the developer) but would never disapprove the Fire Protection Plan. It would not matter whether the Plan would present a significant risk of injury or death to the future residents of the project. The Fire District Board members were inculcated with the notion that they cannot stand in the way of development by disapproving a Fire Protection Plan, no matter how inadequate that plan may be. They have been instructed to believe that that this would be the equivalent to ruling on land use (which is not within their jurisdiction but in the jurisdiction of the County Supervisors).  What the Fire Board members have consistently failed to recognize is that ruling on the safety and adequacy of a Fire Protection Plan is exactly their obligation and their responsibility. Thereafter, those persons responsible for land-use decisions (namely, the Supervisors) must take safety determinations into account---along with a myriad of other considerations--- in order to make a final decision to support or deny a project.

The County Fire Personnel (also helping out with the Fire Protection Plan) would be in fear of losing their jobs or promotions if they were to come out against the Fire Protection Plan (even if it was a gargantuan firetrap) if their ultimate bosses, the Supervisors, wanted the Fire Protection Plan passed. The Stonegate papers suggested that following state safety laws were not important to the developers. They were interested only in getting a commitment from the Supervisors that the project would be approved if they got it through the lower tier of the approval process. Certainly Supervisor Horn would not allow the process to be stalled in the lower tier because of  Planning Unit personnel objecting to an inadequate Fire Protection Plan.

When investigation of Stonegate’s potential fire safety issues was undertaken, it was natural to ask the Fire District Board members about their thoughts and responsibilities. Several members gave a bewildering pat answer to the possibility of rejecting a Fire Protection Plan. They said that they could not and would not stand in the way of development and that disapproving the FPP would amount to doing just that. They stated that they do not rule on land use. This comment was to be a prelude to what every fireman and member of the CDF (CalFire) would say, from the lowest-ranking member to the highest-ranking official. There was a widespread, ingrained  belief that all Fire Protection Plans must be approved after reasonable “mitigation” of the fire hazard was done. By reasonable, it is meant reasonable to the developer. The possibility that a Fire Protection Plan could still be totally inadequate after mitigation did not exist in their world. It was into this milieu that we had to deal with the Fire District Board.

The community’s first real contact with the actual board occurred on May 10, 2006. A presentation was given regarding the fire hazard that Stonegate would represent.

The DSFPD Board consisted of five community members, either elected by the electorate or appointed by the other Board members if a vacancy occurred. There was a former fireman, a former sheriff, two community leaders and a real estate and development lawyer who served as President.

THE MAY 10, 2006 PRESENTATION

The entire presentation can be found in the Appendix. To summarize, it identified the major flaws in Stonegate's Fire Protection Plan---that the Plan did not adequately consider the inabilty of residents to evacuate in a timely fashion in the event of a major wildfire in the area. This fact, when combined with CalFire's own scenarios that a fire on Merriam Mountain would be very fast-moving and intense, indicated there was a very real and significant danger that had to be addressed before the FPP could be approved.

At this meeting. four members of the DSFPD Board were present (the President of the Board, Frank Asaro, was absent). There were numerous representatives of the developer who were poised to present their reasons why the FPP should be approved. We had no idea what kind of furor and reaction that would be created and how the DSFPD would be forever changed after the presentation. We also did not know that the developer and the DSFPD were extremely close to an agreement approving the FPP (within a matter of days to a few weeks)[4]. After our presentation, there were looks of hostility and bewilderment among board members. The developer remained silent and aborted their presentation.

Comments made by the board members after the presentation enlightened us to other beliefs shared by members of the DSFPD Board (prevalent among many fire personnel). Every time they heard the word “evacuation,” they would say that this is a function of law enforcement and “not their job.” They also said the Fire Protection Plan had only to meet very specific codes relating to things like the number of hydrants, road width, defensible space (room for firefighters to come and save the structures), turn-arounds, etc. but they always left out the most important code that any FPP must meet---Article 86 of the California Fire Code that has already been stated but bears repeating---in the County’s own words: "The FPP must  evaluate the adverse environmental effects that a proposed project may have from wildland fire and properly mitigate those impacts to ensure that the development projects do not expose people or structures to a significant risk of loss, injury, or death involving wildland fires.”[5]

Evacuation, of course, must be achievable in a timely fashion in order to protect people during a wildland fire. People do die when trapped in their homes or in the process of trying to escape. Law enforcement handles the actual logistics of evacuation, as best they can, during a fire. However, they are not involved in the planning process of a proposed development where factors of population density, speed of fire, and road circulation all need to be considered. Evacuation became nobody’s responsibility. The buck was passed and still remains a problem to this day in the WUI. The County Supervisors like it this way since evacuation could actually limit land use decisions. They would prefer not to have this impediment to worry about when they make their decisions regarding land use and development. So it was with Stonegate.

REACTION TO THE COMMUNITY’S PRESENTATION

After the community made its presentation, the Fire Board members, without their leader President Frank Asaro, did not make any definitive statements except to say the usual:  “We do not stand in the way of development” – “We are not concerned with land use” – “ We do not handle evacuation: speak to the law enforcement people” – and “As long as the FPP meets the fire codes having to do with hydrants etc. it should be approved.”

It was apparent from our reception and discussion afterwards that the members of the Fire District Board were not well informed about the complexities of a Fire Protection Plan and their particular responsibility in approving that Plan.  The Fire Chief,  Rich Bolton, provided clarification that the Board did need to approve the Fire Protection Plan for this development. He wrote: “The Merriam Mountain project is of such size and impact to the Deer Springs Fire Protection District and the community it serves, that the Board will ultimately make any final decision to approve or reject the project.”[6] We also had copies of specific documents from the County DPLU that were shown to the board that Stonegate’s Fire Protection Plan must be approved by the Deer Springs Fire District before the project could move forward.[7]

A CONFLICT OF INTEREST

The Deer Springs Fire Board members were led by a forceful and powerful president, Frank Asaro. Investigation into Mr. Asaro’s background revealed that he was principal in a law firm specializing in real estate and development law. It was further revealed that he served in fact as General Counsel to the powerful San Diego Building Industry Association (BIA), a highly influential lobbyist group for developers. The two developers promoting the Stonegate project were Stonegate Development Company and Newland Communities, both members of the BIA. Mr. Asaro had a textbook conflict of interest in having to approve an FPP that involves his own client, the BIA and by association, Stonegate and Newland. A certified letter was sent to Mr. Asaro asking him what action the Board would take regarding the community concerns and specifically the community’s offer to fund a study analyzing the fire issues presented by the Stonegate proposal. He ignored the offer out of hand and stated he would not answer any questions regarding the safety of the development. He stated that Stonegate had met the requirements of the Fire Protection Plan and that approval of their plan was imminent. Realizing that his association with the Building Industry was about to be revealed, Mr. Asaro stated, at the next meeting of the Fire District Board, that since he did not want to give the “appearance” of a conflict of interest, he would simply “recuse” himself from the Stonegate matter and, in dramatic form, exited the room. This recusal occurred only after the community presentation was made and after Mr. Asaro had been serving as Board President for the entire time that Stonegate had been in negotiations with the District. Mr. Asaro presided over meetings where Stonegate was discussed and on the agenda[8].  It was also discovered that Mr. Asaro had filed a Form 700 of the California Fair Political Practices Commission[9] (required of all elected officials in order to uncover conflicts of interest) in which he disclosed only his ownership of some “phone company stock” but conspicuously failed to mention any ties to the Building Industry Association and developers. As the matter progressed, his conflict of interest was disclosed in an article in the local community newspaper (the Meadowlark)[10]. Mr. Asaro wrote an angry response, attempting to proclaim a difference between the appearance of a conflict of interest and an actual conflict of interest.[11]  By the very definition of the term, Mr. Asaro, as General Counsel for the BIA, had a very real conflict of interest in ruling on a Plan submitted by BIA members. Moreover, his failure to mention his role as an attorney for developers on his Form 700 further underscored the ethical and legal quandary.  The uncovering of hidden ties to the development industry illustrates how the interests of developers were able to influence the actions of the local Fire District Board.

REVIEWING FIRE BOARD RECORDS

and SHELTER-IN-PLACE

Our next step was to find out as much as we could about the inner workings of the DSFPD Board with relation to Stonegate. We wished to examine all documents, including the minutes of the meetings etc. and all written contacts with Stonegate. A California Public Records Act (CPRA) request was filed and we were able to view the documents that they made available. One document that was not readily handed over but was nevertheless retrieved was entitled “Stonegate’s Conceptual Wildfire Life Safety & Sheltering Plan.” Aside from the fact that the minutes of past board meetings were of extremely poor quality, we were able to document the following:

The DSFPD hired a retired fireman to help them negotiate with Stonegate regarding monetary reimbursement, setbacks and defensible space (with help from the Fire Chief and Fire Marshal), and some other requirements of a Fire Protection Plan.

There was no attention given to the possibility that the FPP (in terms of a significant risk to life) would be inadequate because of the density, the fire hazard, and the existing infrastructure. In the document called Stonegate’s Conceptual Wildfire Life Safety & Sheltering Plan (dated June 6, 2006) we saw a new term called “shelter-in-place” for the first time.

While talking to community members during our research, we had heard rumors that the developer was planning to “protect” the residents of the new development by proposing a “strategy” called Shelter-In-Place (SIP). The strategy would have the residents remain in their home during a wildfire and not evacuate. When we first heard of this strategy, we did not believe it. It seemed incomprehensible that the 10,000 to 13,000 residents of the proposed Stonegate development would be subjected to an untested strategy requiring them to stay put (as if they would!) during a wildfire. Now suddenly there was a written document stating that this development’s safety during a wildfire would be predicated on this strategy.

CONCEPTUAL WILDFIRE LIFE SAFETY & SHELTERING PLAN

This document (see Appendix for full document)[12] stated that in the special situation where a fire started either adjacent to or within the project’s boundaries, there would not be enough time to evacuate. The developer called this Fire Condition One. They acknowledged that there would be an extreme rate of burning and that the CDF scenarios would not allow time for evacuation. They then stated that the people in the development would “shelter-in-place.” We were shocked. This was truly an incredible statement made by a developer that was going to affect the lives and safety of a large population. This was truly experimental and the research and support of such a “strategy” was entirely lacking. The developers were now disregarding all rational behavior for the sake of building and developing and making a windfall profit (rezoning useless land and making it buildable, hence highly valuable). The developers were now going to experiment with a wildland fire strategy and risk the lives and safety of 10,000+ people.

This idea also created a sudden impediment to the passage of the Fire Protection Plan by the Fire District Board. The Board was made up of ordinary residents of the community (aside from Mr. Asaro with his conflict of interest). They wished to do what was correct and they decided to hear from the community. They called a special meeting on July 11 2006 (after their regularly scheduled board meeting in the afternoon) that had as its purpose to have the community to present its concerns about the fire dangers of Stonegate. We were pleased to have the opportunity to discuss why Shelter-In-Place would be a calamitous fire strategy for a dense housing development in the Merriam Mountains.

THE FIREHOUSE MEETING OF JULY 11, 2006

The meeting called by the Fire District Board was important for three reasons:

1)     It suddenly involved the community in understanding and appreciating that a dense development was proposed nearby that would represent a fire risk and would jeopardize everyone’s evacuation in case of a wildland fire.

2)     It highlighted Stonegate in a forum of fire safety conducted by a recognized elected body.

3)     It attracted the television and news media and gave wide circulation to what was occurring in Deer Springs.

The meeting was called to order and a brief discussion was held regarding Frank Asaro’s conflict of interest. There were many presentations made to the Board by community members that generated large ovations and community involvement.[13] The concept proposed by the developer wasn’t hard to understand. The developer wanted to place a large dense development on top of a very-high-severity fire danger zone (Merriam Mountain) that had been specifically identified as the site of a potential catastrophic wildfire scenario by CalFire

The import of the presentations was that a development should not be approved if it relies on a strategy of having people stay put in their homes during a wildland fire. Simply put, we were saying that you can’t put a housing development atop a bonfire. The text of one of the presentations is included in the appendix.[14]

At the end of the meeting, statements were made by Fire Board members. Those comments were excerpted and sent to each Board member with  comments on their statements made at the meeting. This can be found in the appendix.[15]

It was apparent from those comments that we opened a can of worms. In summary, the Fire District Board was reluctant to do anything that would go against approval of the Fire Protection Plan. They felt that somehow the decision-makers in higher positions would make the “more informed” and “correct” decisions and that they (the Fire Board) should not themselves decide to reject the FPP.  However, the District Fire Board was now uncomfortable in rubber-stamping an approval of the Fire Protection Plan. In any event, the Board President had “recused” himself, the news media was on the case, and we had at least temporarily stopped an unsafe development from steamrolling forward.

THE MEDIA BECOMES INTERESTED

Prior to the Firehouse meeting, reporters at the San Diego Union Tribune and the North County Times were contacted. One of the community group’s members had also been given permission to write articles in the local Hidden Meadows community newspaper, the Meadowlark. Three articles appeared in the Meadowlark in March, April and June, all about Stonegate. The June article entitled “Fire Catastrophe Looms With Proposed Stonegate Development” gave a recap of the presentation to the Fire Board. The residents of Hidden Meadows (a large portion of the Deer Springs Fire District) were becoming informed about this otherwise undercover approval process. On June 10^th the first major newspaper article came out in the San Diego Union Tribune called “Housing proposal raises fire concerns.”[16]

In this article Stonegate spokesman Joseph Perring was quoted: “We are not going to propose a development that does not have adequate evacuation routes.” He then said: “If a wildfire were to happen, Stonegate’s fire consultants say that the preferred method of protecting residents would be a concept known as ‘shelter in place’ which means allowing people to stay in their homes rather than evacuating them.”

There it was! Stonegate actually proposed that people (all types of people including infants, the elderly, those with asthma, heart and lung disease) to stay in their house during a wildfire. This contradicted all previous wisdom calling for evacuation. Why would SIP be preferred to evacuation – only because evacuation could not be performed in certain instances. His statements were contradictory.

One of the Board Members, Jean Slaughter, was actually quoted as saying “the Board doesn’t rule on land-use issues but decides if a developer’s fire protection plan is adequate….in this case the main conditions would be making sure the roads are wide enough for fire engines, providing enough fire hydrants and sufficient brush clearance from the houses ..”

Mr. Slaughter remained unaware that “the FPP must evaluate the adverse environmental effects that a proposed project may have from wildland fire and properly mitigate those impacts to ensure that the development projects do not expose people or structures to a significant risk of loss, injury, or death involving wildland fires.” He was not knowledgeable as to what is required for building in the WUI and was speaking without knowledge of what a Fire Protection Plan was supposed to include. He also said the evacuation is handled by law enforcement and did not understand that law enforcement was not involved in the planning stages and if people could not evacuate in a timely fashion, then they would certainly be subject to injury or death. Sadly, through a loophole in the election laws exploited by development interests, Mr. Slaughter will be one of the members of the Fire Board starting in January, 2009.

The meeting at the Firehouse generated the first contact with the television news media. Fox Television News (local San Diego) was present and aired parts of the meeting as well as interviews of Stonegate’s spokesman as well as community spokespersons.  CBS and NBC television followed the next day and also aired stories. We finally succeeded in letting it be known to San Diego County residents that the Stonegate development was a potential firetrap and that the developer was going to use an untried and preposterous strategy on 10,000+ residents. We had also brought Shelter-in-Place to the forefront in San Diego County and presented a unique challenge to the Board of Supervisors. They each received a packet of informational material, including a CD of the TV coverage (that made a mockery of using Shelter-In-Place during a firestorm), news articles, and the results of the extensive fire safety research.  Apparently, they went into a huddle and probably confided to Supervisor Horn that they would be hard-pressed to approve the Stonegate project if it included Shelter-In Place. This has not as yet been documented but what followed heightened those suspicions. But for now, Shelter-In-Place became a buzzword subject to derision and mockery among incredulous San Diego County residents.