The Deal with the Devil: Part 2 — The Stop Order

Instead of explaining in my usual pithy way what went down, I’m instead providing the timeline I had to prepare, as shortly after we filled in the pit, County issued what is called a Red Tag against us.

Here is the timeline of the events.

August 10, 2018
— Trucks were running loads of dirt up to 4024 HHL:  met Joe Mitcham


August 20, 2018
— Road Meeting

Pertinent Notes:

Joe Mitcham (of J Mitcham Construction and ADDRESS REDACTED resident) is working with REDACTED (new owner of ADDRESS REDACTED) who is building a new house.  As part of the construction, Joe will be trucking dirt fill to ADDRESS REDACTED, and will be assessing the current road condition and planning road repair caused by the heavy trucks.   Over the next two weeks, Joe will inspect the road and meet with Jerry Guevara (Santa Clara County Land Development and Engineering Inspector).

We will have another road meeting the week of Sept 3rd so that Joe can give us an update on his road assessment and any input from the county.

We also discussed drainage and alternate access routes that will be needed during road repair – but this meeting was primarily to meet with Joe, brief him on our efforts to repair and maintain our roads and understand what his work will entail.

Rest of Notes are extraneous.

September 8, 2018
— Road Meeting

Pertinent Notes:
A) Outstanding issues from previous meetings:

  • 1. Bank Account: still pending
  • 2. Outside surveys and quotes: still pending
  • 3. Next road work day and area: TBD as dependent on new developments.

B) A possible grading and construction opportunity exists as Joe Mitcham (Tennant at ADDRESS REDACTED) has been contracted to move clean and papered dirt to address grading issues on HR and HHL. As part of this work the companies responsible for moving said dirt will need to address existing road conditions and repair areas they damage.

Committee discussed various aspects of this proposal.

Extraneous notes regarding drains

2. Grading — TBD per Joe’s survey.

  • 1. Improve rise of upper HR at the intersection HR and HHL
  • 2. Possible widening of road in some sections — exact details TBD
  • 3. Improve grading and address erosion issues on lower HR from 4001 HR (Bob the Cowboy) to start of road
  • 4. Grading and subsidence along HR between QC and end of white fence. See also 1.4
    Options may include pilings/extra fill/etc

3. New asphalt
4. Option for residents
to tag in to have their drives surfaced at a discounted rate. (Rate information pending.)
5. HR to Balcom cut through
will need to be repaired to allow residents of upper HR and HHL access if/when 1.4 occurs as well as when paving/repair is under repair.

1. LC and Joe have contact info for Vic Vierra and Gene Mandere to start moving on this

C) Updating Residents

  • 1. Letter will be delivered to residents detailing committee discussions to date; requesting contact details for those who have not yet reported in; advising them of possibility of upcoming work; and soliciting feedback.
  • 2. Improvement upon the past cost formulas will be made including addition of a small base line subscription amount and making note of parcels with more than one residence.
  • 3. The new website will be used to store drainage documentation, post up to date schedules, etc.

September 11, 2018
— Site walk of cut through

September 14-21, 2018
— Resident outreach

September 18-20, 2018
— Loads delivered to cut through and 4012

September 21, 2018
— Re-Compaction of cut through road. (This is our “new” Emergency road.)


September 23, 2018
— Grass Fire and first use of proposed turn around.


September 25, 2018 — Joe’s wife in hospital (Now not sure if this was true.)

Oct 1, 2018 — Unknown loads of dirt arrive:  we were done taking in loads: CA #505001:  All City Trucking

CA #505001:  All City Trucking


Oct 3, 2018 — Red Tag received from county; Joe Mitcham back from AZ, and all further progress on paving cut through stalled.

November 17, 2018 — Joe Mitcham authorized to speak with county on our behalf. Was told original inspector was on vacation/leave for 2+ weeks. (This inspector has since retired.)
November 20, 2018 — Cut through covered

November 25, 2018 — Bales placed and mud runoff from 4004 on HR scraped.

June, 2019 — Dirt at pit moved, compacted and original grade at road restored.


August 16, 2019 — Notified of Administrative Fines of $100/day: Violation 11461-18GV
Investigated legal options for assistance with this mater. Legal action against Mitcham considered but not pursued.

Nov 1, 2019

Contacted County via email:  Darrell Wong


Nov 5, 2019 — Received response from DWong


Nov 7, 2019 — Spoke with Darrell Wong directly by phone. Formally request a Compliance Agreement and began searching for a Civil Engineering Firm.

Dec 20, 2019 — Mentioned in passing during an email to a friend who is the retired assistant to our former county supervisor. He offered assistance. On Dec 22 he forward my info to Donald Rocha, Chief of Staff who then reached out to Chris Frietas (DWong’s boos) who responded on 12/23.


Jan 1, 2020 — Responded to Chris Frietas inquiring about Compliance Agreement.  Also brought up the matter of future work for the Higuera Rd system and how to work with county on that.


Jan 2, 2020 — Chris Frietas responded asking for resend of request for Compliance Agreement


Jan 4-5, 2020 — Responded Chris Frietas  with original request and then sent detailed assessment of road issues in separate email.
Never received any responses regarding Road issues after this point, even after sending additional emails.


Jan 6, 2020 — Darrell Wong responds that County Counsel’s office is “backed up” on requests. 
Never received update regarding our question about daily fines from ANYONE at county. (This is still the case.)


Mar 12, 2020 — Retained services of Peoples Associates


June 25 2020 — PE completes grading plans


July 7, 2020 — Friend from before again offered assistance (for Higuera Road issues NOT the Grading Violation) and put me in touch with Vanessa Turner who then forwarded me on to Tyson Green.  Tyson is part of enforcement and once he understood we were trying to move forward with Planning regarding the pit was willing to listen to road “download” and provide some guidance.  One issue he was willing to help with was the abandoned, burned-out VW that has been up here for 10+ years. (County was impotent on this issue as well and 18 months later I led a small group of residents to deal with that eyesore ourselves.)


August 31, 2020 — PE completes grading plans and services of Matteoni, O’Laughlin & Hechtman retained to draft Grading Justification Letter.

Here is the official letter that was given to county.

Smith Grading Justification

4012 Higuera Highlands Lane – County File No. 11461-54-68-18GV

The fill at issue in this grading abatement was placed by a contractor who represented to the applicant that he had obtained all necessary County permits to perform the work. The required findings from Section C12-433 of the County’s grading ordinance can all be made regarding the filling of the man-made hole adjacent to Higuera Road:

(a) The amount, design, location, and the nature of any proposed grading is necessary to establish or maintain a use presently permitted by law on the property.

The amount of fill, and its design, location and nature were all necessary for the specific purpose of filling an existing man-made hole. As described in finding (b), this grading enhanced the public health and safety associated with the existing residential use of the property, a use presently permitted on the property by virtue of its HS zoning.

(b) The grading will not endanger public and/or private property, endanger public health and safety, will not result in excessive deposition of debris or soil sediments on any public right-of-way, or impair any spring or existing watercourse.

The fill does not cause any of these impacts. To the contrary, the grading to fill the hole that was made during the construction of Higuera Road in the late 1960s serves the public health and safety by creating an area for vehicle turn-around on the very narrow long road, staging of firefighting equipment (which was in fact used by CalFire for that purpose during a grass fire September 24, 2018 – see attached photo) and eliminating a feature that previously routinely attracted illegal dumping of trash and debris by members of the public and annually created a breeding location for mosquitos.

(c) Grading will minimize impacts to the natural landscape, scenic, biological and aquatic resources, and minimize erosion impacts.

The filling of the hole has not caused any biological or aquatic or erosion impacts since it was originally placed in September 2018 and the leveling was completed in October 2018. The existing fill is properly compacted in compliance with County code and is in a stable configuration – the entirety of the fill is in the hole, so it cannot move. Further, the hole which the grading filled was not a natural feature of the land; rather it was man-


made during the construction of Higuera Road in the late 1960s. In that sense, the current grading has abated the impacts to the natural landscape created by the prior grading.

(d) For grading associated with a new building or development site, the subject site shall be one that minimizes grading in comparison with other available development sites, taking into consideration other development constraints and regulations applicable to the project.

N/A. The grading to fill the hole was not associated with a new building or development site. Since the purpose of the grading was to fill an existing hole that was man-made, there is no other location where the grading could have occurred.

(e) Grading and associated improvements will conform with the natural terrain and existing topography of the site as much as possible, and should not create a significant visual scar.

The existing fill did not create a visual scar, it filled a man-made hole and it is not visible. It is consistent with the vary narrow flat portion of terrain adjacent to Higuera Road and at the same grade as the road bed.

(f) Gradingconformswithanyapplicablegeneralplanorspecificplan policies; and

The existing fill at this location is not inconsistent with any applicable general plan policy and is specifically consistent with GP Policy R-GD 25. There is no specific plan applicable to this property.

(g) Grading substantially conforms with the adopted “Guidelines for Grading and Hillside Development” and other applicable guidelines adopted by the County.

The existing fill at this location substantially conforms with the adopted “Guidelines for Grading and Hillside Development” and other applicable County guidelines. It is specifically consistent with GP Policy R-GD 25 and Guidelines 3 and 7, and generally consistent with the intent of Guideline 8.


September 18, 2020 — Plans and Justification/related forms submitted to SCC.  Receive confirmation that it will be assigned to a Tech and Planner: County File No. AR20-0764


October 5, 2020 — Notified:
“This email is to notify you that review of your Application Request for a land use entitlement(s) has been accepted and converted into a formal Planning Application. Your Planning application number is PLN20-130-PRE.  Please log into your user account in the on-line citizen portal to see the invoiced fees under the My Records, Planning list for PLN20-130-PRE to pay the fees due. Payment must be received within 2 business days of this notification or the Planning Application will be withdrawn.”
(Two days?  Really?)
Payment was made that day.


Nov 20, 2020 — MS Teams meeting with county. Attendees: Carl Hilbrants, Darrell Wong, Darrin Lee, Jim Baker, our CE, and myself. Carl Hilbrants states he is my point person for this matter going forward.

End result, told to hire a Geotech to assess past land slide.

End take away, no one at county except Jim Baker understands what drainage story up here. I was the one that had to school them on what water up here does.


Nov 25, 2020 — Contacted C2 Earth


Jan 21, 2021 — Signed contract with C2 Earth


Feb 3, 2021 — Site visit with C2 Earth.

We lucked out and a long-time resident was outside his house as we walked the old landslide. This resident remembered clearly that the slide that moved his mother’s house happened in 1983 during a very wet winter. He was able to provide our C2 Earth with many documents and information.

(Sadly this resident passed away suddenly late last spring.)


March 17, 2021 — Geotechnical Survey Complete


Now…take a breath. The next post, which will be much much shorter, will detail where we are now.

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