More than a year after an investigation into grading work by a prominent local developer in the hills southwest of Pittsburg, it remains unclear whether any legal action will be taken.
In January 2008, the California Department of Fish and Game and city of Pittsburg investigated the reshaping of the hills high atop the western portion of the San Marco subdivision by homebuilder Albert Seeno III’s Discovery Builders, including possible destruction of a seasonal stream. Results were brought to the Contra Costa County District Attorney’s Office and state Attorney General’s Office in July 2008.
No decision has been made about filing a case, Contra Costa deputy district attorney Lon Wixson said last week. That office is handling the matter.
“We haven’t filed anything, but we haven’t closed the case, either. We’re trying to close the loop on some additional information,” Wixson said. “It’s not a simple case; there are a lot of factors, which is part of the problem in making the decision.”
Once the additional information is assessed, the district attorney’s office can decide whether to proceed with a case or drop the matter, he said.
If a case is filed, the district attorney’s office would pursue civil but not criminal charges, he added.
The state Department of Water Resources has not ruled out taking legal action regardless of the district attorney’s decision, department spokeswoman Katie Hart said.
Last year’s investigation examined whether the stream bed was improperly altered, sustained erosion and habitat damage, and whether Discovery Builders violated permit conditions, said Nicole Kozicki, a warden with the Department of Fish and Game. The investigation was prompted when Kozicki discovered grading activity while driving on Highway 4 in the winter of 2007, noting that it violated a stipulation of a 1997 agreement for when work can be done.
That agreement between Albert Seeno Jr.’s West Coast Home Builders and Fish and Game allowed some fill work on wetlands, provided that a new, larger wetlands be created. That permit expired in December 2005.
The grading work added subdrains — or underground piping to collect excess water — behind a series of dams that “changed the hydrology of the watershed,” she said.
No additional information or record of any valid permit under which Discovery Builders was operating was found, said Joe Sbranti, Pittsburg’s assistant city manager. As a result, Pittsburg retroactively collected a $7,086 fee from Discovery for a grading permit, he said.
Discovery understands the requirements regarding permits, but in this case failed to obtain one in advance of the grading work, he said.
Other permits for grading the streambed would be issued by the Army Corps of Engineers and Department of Water Resources. Those agencies found the permits to be expired as well, Kozicki said last year.
The lack of action by the city and district attorney’s office is “unconscionable,” said Seth Adams, land programs manager for regional environmental group Save Mount Diablo.
“Nobody appears to be willing to move forward or do anything,” he said. “The reality is there is a mile of illegal grading from Highway 4 to the ridge line overlooking Concord. It’s not like there’s a lack of evidence.”
Further, he said, Pittsburg has “set a bad precedent that developers can ignore their regulations and get away with it.”
Seeno representatives could not be reached for comment. An attorney for the Seeno companies said last year that they think they have been in compliance with all applicable laws.
Pittsburg has been working with officials from Discovery Builders on a policy for dealing with future issues, Sbranti said.
A periodic review of the San Marco subdivision will come before the Pittsburg City Council soon, covering more than 75 conditions of requirements and memorandums associated with the project and what Discovery is doing to meet the requirements, Sbranti said.
Language in the March 1990 development agreement between Pittsburg and Seeno’s Seecon Financial Construction Co. allows for some permitted grading, but grading in excess of Pittsburg hillside regulations requires further approvals.
The Seeno family of homebuilders has been investigated and fined multiple times over the past several years for suspected environmental violations, including a $3 million settlement in January 2008 concerning grading work at an Antioch subdivision in 2005. The Seenos did not admit fault or liability in settling that case.
The company also agreed to pay $1 million in fines and restitution after pleading guilty to violating the federal Endangered Species Act in 2001 for killing threatened red-legged frogs and destruction of the frog habitat at San Marco.
