Trial Court: Alameda County Superior Court Trial Judge: Hon. Wynne S. Carvill Super. Ct. No. RG10530477
The opinion of the court was delivered by: Reardon, J.
(reposted 8/9/12 to correct format anomaly)
CERTIFIED FOR PUBLICATION
Appellants Ideal Boat & Camper Storage (Ideal Boat) and the Migliore family*fn1 own a boat and camper storage operation in rural eastern Alameda County. Beginning in 1964, respondents County of Alameda (County) and its board of supervisors (Board), through a variety of land use decisions, have approved the use of the property for boat and recreational storage purposes. Then in 2010, the County denied appellants' application for site development review (SDR) to expand its storage facility on the rear half of the property to accommodate up to 720 additional vehicles and boats. Appellants unsuccessfully pursued a writ of mandate and declaratory and injunctive relief to overturn the denial. We conclude all relief was properly denied. While appellants can continue the existing operation which constitutes a legal nonconforming use, it cannot expand the use as proposed. The proposed expansion conflicts with (1) the East County Area Plan (ECAP), as modified in 2000 by the voter initiative Measure D, as well as (2) the South Livermore Valley Area Plan (SLVAP), which is incorporated into the ECAP. Accordingly, the County properly denied the 2010 SDR application.
A. Early Land Use History
The Ideal Boat facility is housed on a 59.7-acre parcel in the unincorporated, rural area of East County. The zoning history begins in 1955, at which time the property was designated as part of an agricultural district. Then in 1964, the County granted the Migliores a use variance for an "equipment storage yard." The site was rezoned as a retail business district in 1976, when the County approved a conditional use permit to allow "open storage of recreational vehicles and boats" on the property.
In 1983, the County again rezoned the property to a planned development district, allowing "Agricultur[al] District uses . . . and also allowing indoor and outdoor storage of recreational vehicles, boats and contractors' equipment with storage uses being subject to [SDR]." As a zoning classification, planned development "allows a single zoning district to combine a variety of uses (residential, commercial, and even industrial) that are otherwise generally not permitted within the same zoning district." (Curtin's Cal. Land Use and Planning Law (31st ed. 2011) p. 70; see Orinda Homeowners Committee v. Board of Supervisors (1970) 11 Cal.App.3d 768, 772.) In this case, the County planning department staff recommended reclassification, reasoning that it "would allow uses inconsistent with the General Plan, but the recommended [planned development] district would not preclude eventual use consistent with the County General Plan, and would provide a needed facility for the area."
In 1983, the County approved the first SDR application for expansion on the northern end of the property, subject to five conditions. These included requiring Ideal Boat to submit a landscaping, planting and maintenance plan "suitable for the Livermore area" that included plant screening of open storage areas and a drip irrigation system until the trees and shrubs became established.
The County approved the second SDR application for "expansion of a vineyard and recreational vehicle storage facility" in 1990, subject to seven conditions, including the dedication of a seven-foot right-of-way along Tesla Road.
B. Land Use Planning Context
Every county must adopt a "comprehensive, long-term general plan for the physical development of the county . . . ." (Gov. Code, § 65300.)
Municipalities can comply with the general plan requirement by adopting one plan for the entire jurisdiction, or by adopting plans relating to "geographic segments of the planning area." (Gov. Code, § 65301, subds. (a), (b).) As becomes apparent, the County has proceeded under the area plan approach.
In the 1980's, a broad coalition of elected and appointed representatives from the County and the cities of Pleasanton and Livermore began working together to create a plan for the South Livermore Valley that would preserve the existing vineyards and promote and enhance viticulture and other cultivated agriculture. The Board adopted the SLVAP in 1993, providing a policy framework "to rejuvenate the South Livermore Valley as a premium wine producing region." The goals of the SLVAP include (1) promoting the South Livermore Valley as a unique and historic wine region; (2) taking a proactive approach to protect, enhance and increase viticulture and other cultivated agriculture; (3) preserving the area's unique rural and scenic qualities; and (4) discouraging and minimizing development on lands with existing vineyards and those suitable for agriculture.
To these ends the plan articulates three methods of encouraging agricultural expansion. The first is a program to expand viticulture acreage by offering economic incentives in exchange for preservation of agricultural land. Of interest is the establishment of a density bonus of up to four additional home sites per 100 acres or fraction thereof if the applicant can demonstrate that the bonus will contribute substantially to promoting viticulture or other cultivated agriculture. Additionally, the plan establishes a land trust to accept dedications of agricultural land and easements to permanently protect productive agricultural land. And finally, the plan requires all new urban development "to directly and substantially contribute to the preservation, promotion and expansion of viticulture in the Valley."
The SLVAP boundaries encompass the Migliores' property, identifying it as "Uncultivated Lands." The plan sets forth development standards for four subareas, including the "Vineyard" subarea, within which the property is located. New commercial uses within this subarea are limited to "appropriate small-scale uses that promote the area's image as a wine region"; examples of appropriate commercial uses are "[w]ineries and small bed-and-breakfast establishments."
In May 1994, the Board adopted the ECAP, the comprehensive general plan for East County. The ECAP incorporates the SLVAP in its entirety. It appears from ECAP maps that the Migliores' site comes within the large parcel agriculture land use designation in that plan.*fn2
In November 2000, the County voters passed an initiative amending the general plan governing land uses. Commonly known as Measure D, the initiative was enacted to protect agriculture and open space. (Save Our Sunol, Inc. v. Mission Valley Rock Co. (2004) 124 Cal.App.4th 276, 278 (Save Our Sunol).) Measure D's stated purposes are "to preserve and enhance agriculture and agricultural lands, and to protect the natural qualities, the wildlife habitats, the watersheds and the beautiful open spaces of Alameda County from excessive, badly located and harmful development." (Measure D, § 1.) The measure revised the urban growth boundary in East County to reserve less land for urban growth and more for agriculture uses.
Measure D also amended the ECAP's land use policies for large parcel agriculture, rural residential and other designations, making them more restrictive. As amended by Measure D, the uses allowed in large parcel agriculture are as follows: "agricultural uses, agricultural processing facilities (for example wineries, olive presses), limited agricultural support service uses (for example animal feed facilities, silos, stables, and feed stores), secondary residential units, visitor-serving commercial facilities (by way of illustration, tasting rooms, fruit stands, bed and breakfast inns), recreational uses, public and quasi-public uses, solid waste landfills and related waste management facilities, quarries, windfarms and related facilities, utility corridors, and similar uses compatible with agriculture." Prior to Measure D, this designation permitted "other industrial uses appropriate for remote areas and determined to be compatible with agriculture, and similar and compatible uses . . . ." The rural density residential designation "permits single family detached homes, secondary residential units, limited agricultural uses, public and quasi-public uses, and similar and compatible uses."
Although Measure D does not affect uses that were legal at the time of the effective date, it nonetheless provides that "structures may not be enlarged or altered and uses expanded or changed inconsistent with [the] ordinance . . . ." (Measure D, § 22, subd. (a).) Further, except to the extent that one has a legal right to development, "the restrictions and requirements imposed by [the] ordinance shall apply to development or proposed development which has not received all necessary discretionary County and other approvals and permits prior to the effective date . . . ." (Id., subd. (b).)
Board action is also circumscribed by Measure D, which states that "no subdivision map, development agreement, development plan, use permit, variance or any other discretionary administrative or quasi-administrative action which is inconsistent with [the] ordinance may be granted, approved, or taken." (Measure D, § 19, subd. (c).)
With respect to the SLVAP, Measure D sought to preserve the programs and policies set forth therein: "This ordinance shall not supersede or change the provisions of the [SLVAP] in the area to which the plan ...