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Failing Grades

Mud Happens: County workers stand in the carelessly graded private road above Saratoga that turned into a mudslide in January, blocking Highway 9 for two days and almost killing Caltrans personnel. Property owner Eric Diesel says PG&E made him do it.

What happens when a private property owner does some hazardous
illegal grading and the county finds out? Not much.

By Kelly Luker

'I DIDN'T know one man and one bulldozer could do so much damage." That was one county official's assessment of a grading project gone terribly wrong in the mountains above Saratoga early this year. The man behind the 'dozer was Eric Diesel, owner of numerous parcels of undeveloped land throughout the counties of Santa Clara and Santa Cruz.

Depending on whose side you believe, Diesel is either a determined landowner who runs roughshod over county ordinances or a misunderstood victim of bureaucratic red tape in the Santa Cruz county planning department, PG&E and Caltrans. What is not in dispute, however, is Diesel's questionable distinction of having the district attorneys of two separate counties preparing to file charges against him for blatant violations of county building codes. These violations, officials say, have not only wreaked environmental havoc and affected nearby watersheds, but, in Saratoga, ended up closing down Highway 9 for two days and endangering Caltrans workers' lives.

Citing the impending litigation, few Santa Clara agency officials wish to go on record about Eric Diesel. Instead, they point to a county file on him that bulges with copies of "stop work" notices, correspondence, internal memos and dozens of pictures documenting an unusually wide road gouged into the side of a mountain and the ensuing mudslide that apparently resulted from it. According to documents, it appears that Diesel and PG&E were in disagreement for years about how to bring electricity onto his acreage located off a section of Highway 9 near Skyline Boulevard known as Congress Springs Road. In correspondence, Diesel states that PG&E led him to believe that he was responsible for putting in an access road for them to install power poles, and that building officials at the county of Santa Clara told him that he was exempt from grading permit requirements. He hired bulldozers to put in a winding road up the side of the mountain in April of 1995, and was served May 1 with his first stop-work notice from the county. Although it was noted in an April 25 grading violation investigation that "severe" erosion would result from the grading, nothing changed except a flurry of official notices and letters back and forth for several months. Then came the rains.

TORRENTIAL RAINS in the latter half of January brought power outages and numerous mudslides, but one in particular will never be forgotten by Caltrans officials. According to officials with Santa Clara County and the California Regional Water Quality Control Board, Caltrans workers were toiling deep in the culverts along Highway 9 during one storm, desperately trying to remove the silt that was piling up and blocking drainage. By luck, one worker happened to look up in time to see a wall of mud and sand tumbling down the face of the mountain toward them, and they all scrambled to safety as a thick torrent covered the road where they had stood.

That particular runoff, about a mile east of Skyline Boulevard, was traced to Eric Diesel's property above, and it succeeded in closing down Highway 9, frustrating commuters for a day and a half. There is also evidence that much of the runoff affected the nearby watershed; consequently, the California Department of Fish and Game, the Midpeninsula Regional Open Space District and the Santa Clara Valley Water District are adding their concerns to the pile for prosecutor William Richmond's review.

Reached by phone, Diesel seems anything but an "evil developer," as he jokes. Affable, funny and talkative, he will tell you that he is the "the tree-hugger of the mountain." He points to his record of anti-apartheid activities while a student at Stanford in the '80s, which resulted in his arrest for civil disobedience. He's also no "mama's rich boy," as one disgusted official termed him. He says he was raised on welfare and food stamps and put himself through college. He now owns a successful auto body and repair shop, European Auto Service, in Palo Alto. Yes, he owns almost 300 acres of land, "but look at the surveyor's maps where they are," he urges. "It's all land that's hard to develop and nobody else wants."

Diesel explains that he can afford to keep purchasing this kind of property since he only puts 10 percent down on each parcel. He insists he has no plans to develop it, but suggests different reasons throughout the conversation why he has invested in 26 parcels. At one point, he says he has bought it to look at it. At another, he explains it's so he has places to take friends hiking on weekends. In correspondence to the county, he writes that he wants to put in vineyards or maybe flowers. Later, as we talk, he tells of his dream to do native plant revegetation.

But this property on Congress Springs Road is where he'd like to live, he explains. He reiterates what his letters to the county say, that with an existing road to his property, he was only putting in an access road for PG&E. When the county gave him his first stop-work notice, Diesel insists the new road was 95 percent done, "just before the erosion control parts were being put in." As it turned out, the road would act as a giant aquaduct, ending at the bottom of the hill in front of one very unlucky neighbor's house. Diesel says that because of the stop-work notice, he could not put in any erosion control. But, he explains, "I hired someone in the middle of the storm to finish some [emergency] erosion control."

WHAT IS most interesting, however, is how a known potential disaster like this could sit with no intervention until--nine months later--the inevitable finally happened. Explains Jim Sirr, a senior engineer with the Land Development and Surveying Office of the Environmental Resources Agency, who has followed the Diesel case closely, "Most of the flow that came down the hill [in late January 1996] was not from the grading that existed before June of 1995. It came about from the grading done between November and January." Agency officials speculate that Diesel was not up there putting in "erosion control" during the storms, but using that opportunity to dismantle a giant sandstone boulder that impeded the passageway. This crumbling boulder, they say, was responsible for the mud--or sand--slide. Yet, an internal memo from Sirr to building official Tom Shih dated Nov. 1, well before the storms, suggested that an emergency order be issued to Diesel ordering him to take care of the potential erosion crisis. Apparently, it was never done.

One possible explanation for the delay in action on the part of the county may be what Diesel claims got him in this mess in the first place--bureaucratic fumbling. Or, perhaps the county is not quite sure what to do when its orders are ignored. Says Sirr, "Usually, people stop grading when we tell them to stop." But Santa Cruz County planner Dave Hope has a different theory: "They don't have any whistleblowers or watchdogs on that side of the hill," he says.

Things are different for Eric Diesel in Santa Cruz. Over on the coastal side of the hill, Diesel has also gotten himself in a bind with officials over questionable logging practices on a 160-acre parcel in the mountains near Corralitos. The centerpiece to this controversy revolves around yet another road, which Santa Cruz officials allege was poorly graded, which created an unstable situation and allowed massive runoff into the nearby watershed during the winter storms. Diesel insists that Dave Hope, who is responsible for forestry, fisheries and general watershed management within Santa Cruz County, exaggerated the problems with the so-called Golitzin-Diesel project because he was angry with the California Department of Forestry because counties have no control over

By some estimates, Diesel has been accused of cutting 60 percent of the old-growth redwoods during the timber harvest. Diesel denies that any old-growth trees were cut, explaining, "A neighbor [to that property] had a dream where the trees talked to him and explained how to judge how old a tree is, and not to go by tree rings. The neighbor told Hope, and that's how Hope now decides what old-growth trees are." Reached for a response, Hope, a college graduate who has worked with the county of Santa Cruz for 16 years, was taken aback by Diesel's theory. "I still judge old growth by several external characteristics as well as tree rings."

Finally, Diesel is asked if perhaps there is a common denominator to his difficulties in Saratoga and Santa Cruz, one common denominator that has brought down the wrath of about eight public agencies in Santa Clara County: He is adamant. "It's Dave Hope in Santa Cruz and PG&E in Santa Clara County."

What--if any--penalties Diesel could face remain to be seen. Will Richmond, chief environmental prosecutor for the Santa Clara County District Attorney's office, explains that his office is still collecting reports from other agencies before deciding to file against the landowner. "But from what I've seen at this point," says Richmond, "there is a civil code section which imposes up to a $25,000 fine and there's a criminal section which can impose up to a year in jail." If the county does not file, Diesel will still have to contend with the Regional Water Quality Control Board of San Francisco. According to sanitary engineering technician Cliff Cahee, the landowner is responsible for what the water board terms administrative civil liabilities, which could run a maximum of $10,000 per day that the water was disrupted, as well as $10 a gallon for water that was deemed silted by Diesel's runoff. "It could be quite substantial," says Cahee.

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From the June 6-12, 1996 issue of Metro

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