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Sierra Club v. County of Sonoma

California Court of Appeals, First District, First Division

April 21, 2017

SIERRA CLUB et al., Plaintiffs and Appellants,
v.
COUNTY OF SONOMA et al., Defendants and Respondents RONALD and ERNEST OHLSON, dba OHLSON RANCH, Real Parties in Interest and Respondents.

         Sonoma County Superior Court No. SCV-255465, Hon. Gary Nadler, Trial Judge

          Counsel for Plaintiffs and Appellants Mark R. Wolfe; M.R. Wolfe & Associates, P.C. (Sierra Club) Justin Augustine; Center for Biological Diversity

          Counsel for Defendant and Respondents: Bruce D. Goldstein; County Counsel Jeffrey M. Brax; Chief Deputy Counsel

          Counsel for Real Parties in Interest and Respondents: Arthur F. Coon, Matthew C. Henderson; Miller Starr Regalia, Thomas R. Passalacqua; Passalacqua, Mazzoni, Gladden, Lopez, and Maraviglia

          Humes, P.J.

         Respondent Agricultural Commissioner of Sonoma County (Commissioner) issued a permit, which we will refer to as an erosion-control permit, under the county's Grading, Drainage, and Vineyard and Orchard Site Development Ordinance (the ordinance) to real parties in interest Ronald Ohlson and his brother, Ernest. The permit allowed them to establish a vineyard on land they own that was being used for grazing. The Commissioner determined that issuing the permit was a ministerial act and therefore exempt from the California Environmental Quality Act, Public Resources Code section 21000 et sequitur (CEQA).[1] Appellants Sierra Club and Center for Biological Diversity (petitioners) challenged the Commissioner's determination by petitioning for a writ of mandate in the trial court. The trial court agreed with the Commissioner and ruled in favor of the Ohlsons.

         We affirm. Although the ordinance may allow the Commissioner to exercise discretion when issuing erosion-control permits in some circumstances, petitioners fail to show that the Commissioner improperly determined that issuing the Ohlsons' permit was ministerial. Most of the ordinance's provisions that potentially confer discretion did not apply to the Ohlsons' project, and petitioners fail to show that the few that might apply conferred the ability to mitigate potential environmental impacts to any meaningful degree.

         BACKGROUND

         Until 2000, grape growers in Sonoma County could plant or replant a vineyard “as a matter of right” without any governmental review or permission. (Sonoma County Ord. No. 5216, § IV, subd. (b) (Feb. 8, 2000).) In 2000, the county enacted the ordinance, which governs “grading, drainage improvement, and vineyard and orchard site development within the unincorporated area of the county.”[2] (Ordinance, § 11.02.020.) The ordinance has been amended over the years, most recently in October 2016. (Sonoma County Ord. No. 6182.) We will consider and apply the ordinance as amended in 2012, since this was the version in effect when the Ohlsons' permit was issued.

         Article 8 of the ordinance requires growers, other than hobbyists, to obtain an erosion-control permit from the Commissioner before establishing or replanting a vineyard. (Ordinance, §§ 11.02.030, 11.08.010, subd. A, 11.08.020, 11.10.010, Table 11-4.) An applicant must submit plans and specifications demonstrating compliance with certain directives and must accept certain ongoing agricultural practices. The ordinance allows growers to prepare and submit plans for sites with a low erosion risk (Level I sites), but it requires a civil engineer to prepare plans for sites having steeper slopes or a higher erosion risk (Level II sites). (Ordinance, §§ 11.08.010, subd. B and Table 11-3, 11.10.020, subds. B, C.)

         Article 16 of the ordinance sets out the substantive standards for “the proper conduct of grading, drainage improvement, and vineyard and orchard site development.” (Ordinance, § 11.16.010.) Some of its directives require the grower to comply with a publication of the Commissioner, “Best Management Practices for Agricultural Erosion and Sediment Control, ” which is not part of the ordinance itself. A typical example of such a directive is section 11.16.040, subdivision A, entitled “Management of storm water, ” which states, “Grading and vineyard and orchard site development shall include the drainage improvements or other methods necessary to manage storm water in compliance with the permit authority's best management practices guide.”

         The Ohlsons' application was filed in October 2013 for a Level II erosion-control permit. The application sought to convert into a vineyard 108 of 132 acres of rangeland.[3] Filed with the application were site maps, a drainage report prepared by a certified engineer, and a biological-resources report. The application indicated that the property included wetland areas and seasonal swales, but no trees or streams. The wetland areas were to be protected by minimum setbacks, as set forth in the biological-resources report, and circular pipe and vee ditch drains were to be installed to drain 27 acres of the property. Erosion was to be controlled through various means, including by using grass avenues (rather than roads), straw mulch, filter strips, and cover crops. According to the drainage report, water runoff was not expected to increase and would be directed to the seasonal swales.

         Inspectors for the Commissioner visited the Ohlsons' property in December 2013. The primary review of the Ohlsons' application appears to have been by means of a form checklist containing 69 separate items, some with subparts. These items address whether an applicant submitted the required components of the application, as well as substantive matters such as “[p]rotection fencing for waterways & sensitive areas, ” “[t]emporary and permanent erosion control measures, ” “[l]ocation of storm water management and sediment control measures, ” and “BMP [best management practice] details & specifications.” For each item, the reviewer indicated whether the project “me[t] standards” or alternatively indicated that the item did not apply to the project. In no instance did the Commissioner find the Ohlsons' application to be out of compliance, although some items were not marked either way. In a subsequent list of 10 comments on the application, the Commissioner sought corrections or clarifications to the writings and maps, but it appears no substantive changes were sought.[4] A letter from the Ohlsons' civil engineer confirmed that the requested corrections and clarifications had been made.

         The Commissioner approved the permit on December 30, 2013.[5] Several months later, the Commissioner issued a notice declaring that the permit's issuance was ministerial and exempt from CEQA review. The notice stated that “[t]he applicant does not seek changes in the ministerial standards set in [the ordinance] and the Best Management Practices....” It further stated that “the issuance of permits [under the ordinance is a] ministerial action[], except in one situation not applicable here.”

         The parties agree that CEQA does not require an environmental review for ministerial acts by local agencies. (§ 21080, subds. (a), (b)(1).) Their dispute centers on whether the Commissioner's issuance of the Ohlsons' permit was such a ministerial act. Friends of the Gualala River and the Center for Biological Diversity challenged the permit by filing a petition for a writ of mandate in the trial court. The Sierra Club was added as a petitioner in an amended petition.[6] Following briefing on the merits, the trial court denied the petition in a lengthy written decision. It rejected various procedural arguments raised by the respondents and real parties, but it affirmed the Commissioner's determination that issuing the permit was ministerial and therefore exempt from CEQA review.[7]

         DISCUSSION

         In their appeal, petitioners continue to maintain that the Ohlsons' permit application was subject to an environmental review under CEQA. Their primary argument is that issuing the permit must have been a discretionary act because many provisions of the ordinance are broad and vague and therefore allow the Commissioner to exercise discretion. We are unpersuaded by this argument because most of the provisions that potentially confer discretion did not apply to the Ohlsons' project, and petitioners fail to show that the few that did apply conferred on the Commissioner the ability to mitigate potential environmental impacts to any meaningful degree. As a result, we must defer to the Commissioner's determination that issuing the Ohlsons' permit was a ministerial act.

         A. The Initial Determination of CEQA's Applicability.

         “CEQA was enacted to advance four related purposes: to (1) inform the government and public about a proposed activity's potential environmental impacts; (2) identify ways to reduce, or avoid, environmental damage; (3) prevent environmental damage by requiring project changes via alternatives or mitigation measures when feasible; and (4) disclose to the public the rationale for governmental approval of a project that may significantly impact the environment.” (California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 382.)

         To ensure that environmental considerations inform public agencies' decisions, CEQA establishes a multi-tiered process. Here, we are concerned with the initial step of the process, which requires the agency to “ ‘conduct a preliminary review in order to determine whether CEQA applies to a proposed activity.' ” (Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4th 768, 776 (Parker Shattuck).) As part of this review, the agency is to determine whether the activity is a “project” for purposes of CEQA and, if it is, whether it falls under an exemption. (Sunset Sky Ranch Pilots Assn. v. County of Sacramento (2009) 47 Cal.4th 902, 907.) There are two types of exemptions: statutory, which are enacted by the Legislature and are not subject to exceptions, and categorical, which are adopted in the regulations developed to guide CEQA implementation (CEQA Guidelines)[8] and are subject to exceptions. (North Coast Rivers Alliance v. Westlands Water Dist. (2014) 227 Cal.App.4th 832, 850-851.) “If the project is in an exempt category for which there is no exception, ‘ “no further environmental review is necessary.” ' ” (Parker Shattuck, at p. 776.) If the project is not exempt, the agency proceeds to the other tiers of the CEQA process, which involve the preparation of an initial study and, if appropriate, an environmental impact report (EIR). (Ibid.)

         B. The Ministerial Exemption.

         CEQA applies only to “discretionary projects proposed to be carried out or approved by public agencies.” (§ 21080, subd. (a).) The statute correspondingly exempts “[m]inisterial projects” (id., subd. (b)(1)), a term that has been assumed to refer to projects that are not discretionary.[9] CEQA itself does not define either term, but both are defined in the Guidelines. Under Guidelines section 15357, a discretionary act is one that “requires the exercise of judgment or deliberation when the public agency or body decides to approve or disapprove a particular activity, as distinguished from situations where the public agency or body merely has to determine whether there has been conformity with applicable statutes, ordinances, or regulations.” Under Guidelines section 15369, a ministerial decision is one “involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project. The public official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision. A ministerial decision involves only the use of fixed standards or objective measurements, and the public official cannot use personal, subjective judgment in deciding whether or how the project should be carried out.” If a project approval features both ministerial and discretionary elements, the project is deemed discretionary and subject to CEQA review. (Guidelines, § 15268, subd. (d).)

         Our state Supreme Court has explained the legislative rationale behind CEQA's exclusion of ministerial actions: “The statutory distinction between discretionary and purely ministerial projects implicitly recognizes that unless a public agency can shape the project in a way that would respond to concerns raised in an EIR, or its functional equivalent, environmental review would be a meaningless exercise.” (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 117.) As further explained in Leach v. City of San Diego (1990) 220 Cal.App.3d 389, “ ‘To properly draw the line between “discretionary” and “ministerial” decisions..., we must ask why it makes sense to exempt the ministerial ones from the EIR requirement. The answer is that for truly ministerial permits an EIR is irrelevant. No matter what the EIR might reveal about the terrible environmental consequences of going ahead with a given project the government agency would lack the power (that is, the discretion) to stop or modify it in any relevant way. The agency could not lawfully deny the permit nor condition it in any way which would mitigate the environmental damage in any significant way.' ” (Id. at p. 394; see also Central Basin Municipal Water Dist. v. Water Replenishment Dist. of Southern California (2012) 211 Cal.App.4th 943, 949 [“CEQA does not apply to ministerial actions-actions in which the agency is not permitted to shape the process to address environmental concerns”].) Consistent with this understanding, the Guidelines recognize that “[w]hether an agency has discretionary or ministerial controls over a project depends on the authority granted by the law providing the controls over the activity. Similar projects may be subject to discretionary controls in one city or county and only ministerial controls in another.” (Guidelines, § 15002, subd. (i)(2); see Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1014-1015.)

         The first appellate case to discuss the ministerial exemption was People v. Department of Housing & Community Dev. (1975) 45 Cal.App.3d 185 (Department of Housing), in which the court considered whether a construction permit to develop a mobilehome park, required by the State Department of Housing and Community Development under the Mobilehome Parks Act (MPA), was ministerial or discretionary.[10] (Id. at p. 192.) Rejecting the department's determination that the permit's issuance was ministerial, the court held that the approval was “neither wholly ministerial nor entirely discretionary” and therefore required CEQA review. (Id. at pp. 193-194.) The court based its conclusion that the approval was partially discretionary on the MPA's building standards, which used imprecise adjectives to define compliance, and on a provision in the act that permitted a conditional permit: “A third class of standards is relatively broad, relatively general. The applicant for a mobilehome construction permit must submit a ‘description of the water supply, ground drainage and method of sewage disposal.' [Citation.] There must be a ‘sufficient' supply of artificial lighting. [Citation.] The water supply must be ‘adequate' and ‘potable.' [Citation.] The site must be ‘well-drained and graded.' [Citation.] Instead of an unqualified construction permit, the enforcement agency may issue a conditional permit which prescribes ongoing conditions on use or occupancy.” (Id. at p. 193.) As the court explained, “[w]hether the water supply is adequate and potable; whether sewage disposal is satisfactory; whether the site is ...


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