Humboldt Eases Demands on Kernen Construction

Kernan site 1

After a three-hour hearing, the permit of one of Humboldt County’s most well-known construction services companies was changed but not nearly as much as some neighbors and their district supervisor were calling for.

Changes to the Conditional Use Permit for the Glendale-based Kernen Construction company were up for consideration at the April 15 Board of Supervisors meeting.

Two areas of concern were prominent – environmental issues related to unpermitted construction of a berm and what the county and neighbors described as nuisance issues stemming from noise and hours of operation.

Last December, the board took up the permit and a staff recommendation to revoke one of Kernen’s crushed rock and gravel yards. That hearing was continued to last week’s meeting to allow time to work out mutual resolution of the various issues.

But with that approach failing to yield agreement, the board weighed a new set of staff recommendations.

On the table were recommendations to direct Kernen to move the berm, do restoration work, address noise levels and restrict the hours of all of the company’s operations to 7 am. to 6 pm.

Kernan site 2

Representing Kernen, Land Use Attorney Brad Johnson told supervisors the recommendations tread on unstable legal terrain, particularly with the noise and hours changes.

“What the board has not heard is what the legal rules are – it’s a bit like being asked to referee a sports game without being told what sport it is or what the rules are,” he said. “You’re being set up to make bad calls and the problem is if you make a bad call here, that can be unlawful and that can also expose the county to some serious liability.”

Johnson described the permit as “not just any use permit, it is a fundamentally vested use permit,” having been in effect for about 24 years.

He said modifying the permit as recommended demands “a valid evidentiary basis based on substantial evidence,” which he said is lacking.

He argued that neighbors’ complaints alone do not meet the “evidentiary” standards.

During a public comment period, Kernen supporters, including its employees and employees of other construction-related companies, said approving the new restrictions would cripple Kernan’s ability to do its work and set a precedent that will negatively impact construction work countywide.

Residents of Glendale Drive supporting the staff recommendations said noise impacts have intensified in recent years. They said they’re not seeking to put Kernen out of business – a claim made earlier by Johnson – but rather to bring noise below nuisance levels.

Glendale Drive is in Supervisor Steve Madrone’s district and he said increased noise levels related to Kernen’s contract with Caltrans, which has to access construction materials at night, triggered complaints and ultimately, the hearing.

Madrone made a motion to approve the staff recommendations with some changes, including removing a questionable decibel limit and to allow equipment maintenance at night as long as it occurs in an enclosed building.

Madrone’s motion failed to get a second and more discussion ensued.

In collaboration with Johnson, a new motion was developed, maintaining recommended requirements to move the berm and do riparian “buffer enhancement” work.

But the motion removed the limit on hours operation, with the only noise measure being to switch back-up noisemakers on the company’s vehicles from beepers to what Planning Director John Ford described as a “more white noise” sound.

Madrone strongly opposed the motion, calling its omission of noise controls “outrageous.”

“This motion does nothing to deal with the number one reason why we’re even here today and that was operating after hours, operations 24/7,” he said. “And that’s still allowed under what you guys are considering approving here so if you think that’s going to resolve this conflict in this neighborhood, it is not.”

He said one neighbor told him in an email that she “got to the point of almost wanting to commit suicide” due to relentless noise that went on for months at a time.

But the motion was approved, with Madrone casting the only vote against it.