California Court of Appeals, Fourth District, First Division
Pub. Order 8/26/13 (See End of Opn.)
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2010-00099703- CU-TT-CTL Timothy B. Taylor, Judge.
Coast Law Group, Christian C. Polychron and Marco A. Gonzalez for Plaintiff and Appellant.
Thomas E. Montgomery, County Counsel, and James R. O'Day, Deputy County Counsel, for Plaintiff and Respondent.
Starting in 2006, defendant County of San Diego (County) began exploring ways to encourage the growth of local grapes and the wine industry in the eastern region of the county by adopting regulatory amendments streamlining the winery approval process and allowing small boutique wineries "by right." As part of this process, the County Board of Supervisors (BOS) certified a final environmental impact report (FEIR) under the California Environmental Quality Act (CEQA) for the Tiered Winery Zoning Ordinance Amendment Project (Project). Finding the Project might have significant, unmitigated environmental impacts, the BOS adopted a statement of "overriding considerations" for the Project.
Plaintiff San Diego Citizenry Group (SDCG) is a corporation that was formed to oppose the Project. In opposing the Project, SDCG asserted the FEIR was insufficient. After the County approved the FEIR, SDCG filed a petition for writ of mandamus, seeking to compel the County to rescind the Project, decertify the FEIR, and set aside its Project-related approvals and findings. The court denied the petition.
On appeal, SDCG asserts the FEIR (1) had an inadequate discussion of mitigation measures; (2) failed to adequately address a measure adopted in 2008 to mitigate boutique wineries' traffic impacts on private roads; (3) failed to provide sufficient information about the Project's significant impacts; (4) provided insufficient information regarding impacts to water supplies; (5) had a misleading discussion of grading permits; and (6) included an inadequate statement of overriding considerations. SDCG also asserts the Project is inconsistent with the County's General Plan, and the costs SDCG was charged for preparing the administrative record should be reduced to exclude transcripts of planning commission hearings. We reduce the cost of preparing the administrative record by $6, 067.94, that amount constituting the cost of preparing transcripts of hearings by the County's planning commission that were never considered by the BOS in adopting the FEIR. In all other respects we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006 the County began exploring ways to promote the growth of grapes and the related wine industry. The BOS directed staff to "investigate options that would allow boutique wineries to expand and operate successfully by right without burdensome regulations." At that time, all visitor-serving/retail wineries in the unincorporated areas zoned A70 (Limited Agriculture) and A72 (General Agriculture) required discretionary major use permits.
The County subsequently received public comments regarding allowing boutique wineries by right. "Issues of concern" included traffic and related safety impacts of allowing visitor-serving wineries by right on privately owned rural roads, which "are often unimproved and do not meet County road standards."
In April 2008 the BOS certified a mitigated negative declaration under CEQA and adopted an ordinance, over contrary advice from County Counsel and staff, which allowed boutique wineries in the A70 and A72 zones, and found the project did not have any significant effect on the environment. Under the 2008 ordinance, boutique wineries were allowed by right (without a discretionary permit) on public roads. However, either an administrative permit or a private road maintenance agreement was required for boutique wineries located on private roads.
In May 2008 the BOS repealed the 2008 ordinance, determining that an EIR was necessary to address potential significant environmental impacts. In doing so, the BOS found "[t]here exists information indicating that potentionally significant environmental impacts could occur from the establishment and operation of boutique wineries that could threaten the public health and safety...."
Thereafter, the BOS amended the zoning ordinance to reintroduce the boutique winery use type and to require that boutique wineries obtain only discretionary administrative permits instead of the more costly and burdensome major use permits. At the same time, the BOS directed staff to develop a tiered winery ordinance allowing "By-Right Boutique Wineries" and to prepare an EIR for the Project. The Project objectives, which are set forth in the draft and final versions of the EIR, are as follows: (1) encourage the growth of the wine industry in the County of San Diego; (2) streamline and clarify the approval process for the operation of wineries; (3) provide regulatory tiers that correspond to the different major phases in the growth of a winery, while providing for operational flexibility and incremental growth within each tier; (4) encourage property owners to retain agricultural lands in production; (5) encourage the farming of crops that use less water; (6) provide a winery category that allows wine tasting and direct sales to the public by right; (7) minimize the potential for conflicts between winery operations and adjacent land uses; (8) support local agriculture and encourage the production of local grapes; and (9) create a market for the use of locally grown grapes.
A draft EIR (DEIR) for the Project was circulated for public review starting in July of 2009. The DEIR concluded that by approving an unlimited amount of future wineries as a matter of right the Project would cause 22 different types of significant and unmitigated environmental impacts in seven different resource categories: air quality, biological resources, cultural resources, hydrology and water quality, noise, transportation/traffic, and water supply/groundwater supply. The DEIR also identified three project alternatives: (1) enhanced ministerial enforcement that would require a "Compliance Checklist" that would provide documentation that the standards and limitations in the current zoning ordinance, including those that avoid or mitigate significant impacts, have been met; (2) a limited five-year by-right ordinance that would require evaluation of the by-right ordinance over a five-year period to collect and document data to determine the location and growth of wineries, and to evaluate whether to continue or modify the ordinance; and (3) the no project alternative, which would leave the zoning classifications for wineries unchanged. The DEIR concluded that each of the three project alternatives would be environmentally superior to the by-right ordinance.
The County also considered the experience of other counties to evaluate the magnitude of impacts that could reasonably be expected to result from allowing the creation of boutiques wineries by-right. The County surveyed San Diego and Riverside County (focusing on the Temecula area) wineries for data about technical, economic and environmental characteristics. The survey data was used to analyze impacts to air quality, noise, traffic trip generation and water supply. Section 5.0 of the FEIR, in the list of references used, referenced, or relied upon in its preparation, identified a 2005 research study titled, "Economic Impact of Wine and Vineyards in Napa County"; and 2009 personal communication with planners in Napa County. The county researched trip generation rates for Napa, Sonoma, Santa Barbara, San Luis Obispo, Placer and Amador County wineries. That research revealed that those counties had not developed formal trip generation rates for use in determining traffic impacts. There was public testimony at the at the August 4, 2010 BOS hearing that referred to Placer County's experience with tasting rooms and Paso Robles' experience with winery growth. A chart was prepared for the FEIR from a survey of winery regulations in California counties and there were County planner notes of discussions with a Napa County representative. Finally, the County relied upon an article on water use at sample California wineries.
After the circulation and comment period, the County evaluated and responded to public comments. Among those who submitted comments was SDCG which stated (1) the discussion of impacts to imported water supplies was insufficient; (2) the discussion of impacts to groundwater supplies was insufficient; (3) the discussion of mitigation measures was insufficient; and (4) a water supply assessment must be prepared. Of significance to this appeal, the County responded that "[a]dditional impact avoidance measures were not incorporated into the Proposed Project because these measures would likely result in in the need for winery operators to obtain other permits and would be inconsistent with the Project objectives. Wineries required to obtain follow-on discretionary permits such as a grading permit would be subject to CEQA and would be required to mitigate for associated impacts. Therefore it was determined that no other avoidance measures were necessary."
Additional studies were performed and the County reviewed and made changes to subsection 2.7 of the DEIR, which addresses impacts to water supplies. Specifically, the changes to subsection 2.7 of the DEIR addressed impacts caused by (1) a significant increase in demand for "water on lands not currently irrigated at a time when rainfall levels are below average and statewide drought conditions have resulted in cutbacks of imported water"; and (2) use of groundwater pollutants on grape crops.
On April 22, 2010, the County provided a new notice of availability and recirculated the revised subsection and solicited public comment. Public comments in response were received, evaluated, responded to and included in the FEIR.
Before the BOS considered the revised DEIR, the County Planning Commission considered the DEIR and related regulatory amendments during two public meetings in which both Project proponents and opponents participated. SDCG, a California corporation formed specifically to challenge the Project, "participated extensively at every stage of the Project's lengthy administrative history." Among the comments provided by SDCG and others were (1) the FEIR was inadequate; (2) the BOS could not lawfully make findings that, under CEQA, were required to be made before the BOS could certify the project; and (3) the Project could not be approved in compliance with the County's General Plan.
On August 4, 2010, the BOS considered and unanimously approved certification of the Project FEIR. Finding that the benefits of the Project outweighed its unavoidable environmental impacts, the BOS approved a statement of overriding considerations as authorized by Public Resources Code section 21023 and California Code of Regulations, title 14, section 15093, subdivision (a)(3). The statement identified six regulatory, agricultural and economic benefits making the unavoidable environmental impacts identified in the FEIR acceptable. Specifically, the statement found as to as to regulatory benefits that: "The Proposed Project would amend the zoning ordinance to streamline and clarify the approval process for the operation of wineries and provide regulatory tiers that correspond to the different major phases in the growth of a winery. Providing tiers of winery operations that are permitted by right eliminates costly and time consuming discretionary reviews that might otherwise discourage the establishment or expansion of wineries within San Diego County."
As to agricultural benefits, the statement provides that: (1) "[p]roviding an opportunity for tasting and direct sales will promote the economic viability of grape crops and encourage the retention of grape crops in production to serve the local and regional markets"; (2) "wine grapes are not a water intensive crop, requiring only approximately one half the amount of water of avocado crops" and (3) the Project would therefore "benefit the County by encouraging a low water-use crop on agricultural lands that might otherwise be developed with a more water intensive crop, thereby reducing the overall demand for water during a period of potential water shortages and supporting the continued viability of agricultural lands."
The statement identified three economic benefits: (1) the Project "will benefit San Diego County by promoting the County as a wine producing region and supporting economic growth of visitor serving businesses such a restaurants, cafes and lodging facilities"; (2) the Project "will foster economic growth by contibuting to the maintenance and/or expansion of the agricultural industry in San Diego County"; and (3) the Project "will benefit the County by encouraging tourism and creating greater local employment opportunities."
The BOS found each benefit to be a separate and independent basis for the Project approval.
On that same date, the BOS also approved a County zoning ordinance and General Plan amendments implementing the Project. Within the County's A70 and A72 agricultural zones, the amendments created a tiered winery regulatory framework that added a "Small Winery" classification (wineries producing up to 120, 000 gallons of wine per year), and made changes to the provisions governing the "Wholesale Limited Winery" and "Boutique Winery" classifications (wineries producing up to 12, 000 gallons of wine per year, the latter classification having wine tasting facilities). The most significant changes allowed wholesale limited wineries to convert to boutique wineries and eliminated the administrative permit requirement for on-site sales and tasting rooms at boutique wineries.
The zoning ordinance also placed the following restrictions on boutique wineries: "A Boutique Winery must operate as a Wholesale Limited Winery for at least one year prior to operating as a Boutique Winery. [¶] The existing wine production limit (less than or equal to 12, 000 gallons annually) remains unchanged. [¶] Of the total fruit in winemaking, a minimum of 75 percent shall be grown within San Diego County, a minimum of 25 percent shall be grown on the premises, and a maximum of 25 percent may be grown outside of San Diego County. [¶] Boutique Wineries continue to share the same limitations on the size of on-site structure(s) used in the production of wine as Wholesale Limited Wineries, but are allowed one on-site tasting/retail sales room that may operate from 10:00 A.M. until legal sunset seven days a week. The tasting/retail sales room shall be accessory to wine production and shall not exceed 30 percent of the total squarefootage of the structure used for wine production. [¶] Events, including but not limited to weddings and parties, and amplified sound are prohibited. [¶] The sale and consumption of pre-packaged food is allowed on the premises. Catered food service is allowed, but no food preparation is allowed at a Boutique Winery. [¶] A minimum of six parking spaces shall be provided for customers and a minimum of three spaces shall be provided for employees and operations. No parking is allowed off the premises. [¶] The on-site driveway and parking area shall not be dirt. The on-site driveway and parking area may be surfaced with chip seal, gravel, or an alternative surfacing material such as recycled asphalt suitable for lower traffic volumes. [¶] Outdoor eating areas shall be limited to a maximum of five tables and provide seating capacity for no more than 20. [¶] Vehicles with a capacity in excess of 12 passengers are not allowed."
The amendments allowed boutique wineries by right, meaning without a discretionary zoning permit, and thus without environmental review, unless the activity necessitated some other type of discretionary approval.
B. Procedural Background
On September 3, 2010, SDCG filed a petition for writ of mandate and complaint for injunctive relief challenging the certification of the FEIR and requested that the County prepare the administrative record. The County prepared a record consisting of 5, 648 pages and in December 2010 gave notice of certification of the record. Thereafter, the County moved for an order determining and directing payment of costs for the administrative record. SDCG opposed the motion and the County filed a reply.
On April 15, 2011, the court issued its ruling in favor of the County, denying the writ petition and ordering SDCG to reimburse the County for the costs of record preparation. In doing so, the court found the FEIR "suffices as an informational document. The [BOS] was, by the EIR, adequately informed about the consequences of its decisions. The public (including petitioner) was provided with adequate information regarding the decisions of their elected leaders. That is where the judicial inquiry under CEQA ends; any further remedy for petitioner (or those who share its views regarding wineries in the backcountry of San Diego County) lies at the ballot box when the Supervisors stand for re-election.... It is not within the province of a judicial officer to second guess the policy decisions of the members of the [BOS], so long as there was substantial evidence to support their decisions. The court finds that there was." With regard to the order directing SDCG to pay the cost of preparation of the administrative record, the court found that "petitioner had the option of preparing the record itself; and... there is no well-heeled real party in interest (such as a developer) to bear the expense associated with that exercise. Groups like petitioner are free to exercise their petition rights, but as has been often said in other contexts, freedom is not free."
I. STANDARD OF REVIEW
Review of the FEIR is governed by section 21168.5. While the basic nature of review is in ordinary mandamus, CEQA (Cal. Code Regs., tit.14, § 15000 et seq.) (Guidelines)) is unique in that it requires substantial evidence in support of certain evidentiary determinations. Under section 21168.5, the court considers whether there was an abuse of discretion, which is established if the agency has not proceeded in a manner required by law or if the decision is not supported by substantial evidence. (§ 21168.5.)
A. Substantial Evidence
Substantial evidence means "enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached." (Guidelines, § 15384, subd. (a).) When a court determines an agency's decision was supported by substantial evidence, it grants greater deference to the agency's substantive factual conclusions. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393 (Laurel Heights).)
Courts presume that the agency's decisions are correct, and the challenger bears the burden of proving the contrary. (State Water Resources Control Board Cases (2006) 136 Cal.App.4th 674, 723.) A court "may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable." (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d. 553, 564.) A court "'must resolve reasonable doubts in favor of the administrative finding and decision'" (Laurel Heights, supra, 47 Cal.3d at p. 393), even though other conclusions might be reached from the same body of evidence. (Ibid.) "'[A]n appellant challenging an EIR for insufficient evidence must lay out the evidence favorable to the other side and show why it is lacking. Failure to do so is fatal.'" (Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912, 934.)
A court's task is not to weigh conflicting evidence and determine who has the better argument. These questions are left to the discretion of the agency and its environmental consultants; it is they who decide how best to prepare an EIR to achieve CEQA's informational purpose. The County's determinations regarding disputed questions of fact are entitled to the same deference appellate courts give to the factual findings of trial courts. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 573; Environmental Council of Sacramento v. City of Sacramento (2006) 142 Cal.App.4th 1018, 1042.)
B. Failure To Proceed in a Manner Required By Law
An abuse of discretion may also be established if the agency fails to proceed in a manner required by CEQA. When an agency fails to include information mandated by CEQA in the environmental analysis, the agency fails to proceed in a manner required by law. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435 (Vineyard); Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236.) However, where the agency includes the relevant information, but the adequacy of the information is disputed, the question is one of substantial evidence. (Vineyard, supra, 40 Cal.4th at p. 435; Laurel Heights, supra, 47 Cal.3d at p. 393.)
For example, in Ebbetts Pass Forest Watch v. California Dept. of Forestry & Fire Protection (2008) 43 Cal.4th 936 (Ebbets Pass), the court considered whether the agency had proceeded in a manner required by law when it determined whether the application of a particular herbicide was reasonably foreseeable and thus must be discussed in the EIR. By way of comparison, the correctness of the factual conclusions such as when the ...