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7/25/2019 Appellant's Opening Brief, Coastal Hills Rural Preservation vs. County of Sonoma; 9-25-15
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A
1
45573
I N THE C OU R T OF A P P EA L
OF TH E S TA TE OF C A LIF OR NI A
FIRST APPELLATE DISTRICT
D I V IS IO N O N E
C O A S T A L H IL L S R U R A L P R E S E R V A T I O N ,
Petitioner/Appellant
vs.
C O U N T Y O F S O N O M A ,
Respondent
JACK PETRANKER, an individual, et al. ,
Real parties in interest and Respondents
Appeal from Sonoma County Superior Court
The Honorable Eliot Lee Daum, presiding
(Case no. SC V 255694)
APPELLANT'S OPENING BRIEF
PROVENCHER & FIATT LLP
Janis H. Grattan SBN 68139
823 Sonoma Ave
Santa Rosa, CA 95404
Tel. (707) 284-2380 / Fax (707) 284-2387
Email: [email protected]
Attorney for Appellant Coastal Hills
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?
I G N A T U R
E O F PA R T Y O R A T T O R N E Y )
J A N IS H . G R A T T A N
T Y P E O R P R I N T N A M E )
Page 1 of 1
TO BE FILED IN THE COURT OF APPEAL
PP-008
COURT OF APPEAL,
FIRST
PPELLATE DIS TRICT, DIVISION
1
Cour t of Appeal Case Number
A145573
A T T O R N E Y O R P A R T Y W I T H OU T A T T O R N E Y
Name, State Bar numbe r, and address):
Janis H. Grattan 68139
)rovencher Flatt LLP
823 Sonoma Ave.
SANTA ROSA CA 95404
T E L E P H O N E N O . : 707-284-2380
AX NO. Optional): 07-284-2387
E - M A I L A D D R E S S
Optional): i
A T T O R N E Y
FOR
Name):
Coastal Hills Rural Preservation
Superior Court Case Number:
SCV 255694
FOR COURT USE ONLY
A P P E L L A N T / P E T I T I O N E R :
Coastal Hills Rural Preservation
RESPONDENT/REAL PARTY IN INTEREST: County of Sonoma et al
nd
Jack Petranker,
n individual et al.
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
Check one):
NITIAL CERTIFICATE
U P P L E M EN T A L C E R T I FI CA T E
Notice: Please read rules 8.208 and 8.488 before comp leting this form. You m ay use this form for the initial
certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a
motion or application in the C ourt of Appeal, and when you file a petition for an extraordinary writ. You may
also use this form as a supplemental certificate when you learn of changed or additional information that must
be disclosed.
This form is being submitted on behalf of the following party
(name):coAsTAL
HILLS RURAL PRESERVATION
2 a x
There are no interested entities or persons that rqust be listed in this certificate under rule 8 208
b
nterested entities or persons required to be listed under rule 8 208 are as follows:
ull name of interested
entity or person
Nature of interest
Explain):
Continued on attachment 2
The undersign ed certifies that the above-listed persons or entities corporations, partnerships , firms, or any other
association, but not including government entities or their agencies) have either 1) an ownership interest of 10 percent or
more in the party if it is an entity; or 2) a financial or other interest in the outcom e of the proceeding that the justices
should consider in determining whether to disqualify themselves, as defined in rule 8.208 e) 2).
Date:
Septmeber 25, 2015
Form Approved for Optional Use
Judicial Council of California
APP-008 [Rev. January 1, 2009]
Cal. Rules of Court, rules 8.208, 8.488
CERTIFICATE OF INTERESTED ENTITIES OR PERS ONS
l
S o u t Qn s
-
EilA Plus
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TABLE OF CONTENTS
I.
I N T R O D U C T I O N
II.
S T A T E M
III.
S T A T E M E N T O F T H E C A S E
A. 2004 MND and use permit
B. New mission: book storage
C . 2008
storage caves proposal
D. Expansion: new construction, additional presses, ramped up
production, commercial activities, temporary storage structures
E. 2008
MND for reservoir
F. Violations of
2004
use permit
G. Religious preference objections; Petranker invokes RLUIPA
H. Revised Project approved on 3-2 vote
I. Major findings for Project approval
1. "Modest" expansion: storage structures are
baseline conditions
2.
Storage structures: "accessory" to religious use
a)
Religious rationale
b) Quantitative rationale
3. Storage structures: "no practical effect" on fire danger
a)
High fire hazard zone
b)
Training and equipment
c)
Exemption from Wildland Standards
d)
Ac cessory under C BC
4. Roads and hazardous materials
5. Alternatives
J. The Project compared to 2004
3
9
11
1111
14
15
15
18
18
19
19
20
20
20
21
23
24
25
25
26
27
28
28
29
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K. Appeal
I V . S T A N D A R D O F R E V I E W
V . A R G U M E N T
A. The Project violates the Establishment Clause of the U.S.
Constitution and the Establishment, No Preference, and No Aid
Clauses of the California Constitution
1.
The Establishment Clauses
2.
The No Preference Clause
3. The No Aid Clause
B. The Project is inconsistent with the General Plan and
zoning code
1.
General Plan and RRD zoning provisions
2.
No substantial evidence supports the County's General Plan
consistency finding
3.
The MUP is discriminatory spot zoning
C. The Project approval violates CEQA
1. Massive warehouses filled with paper in a high risk fire area is
a substantial change or new information warranting an EIR
a)
Fair argument standard if "new" project
b)
EIR is required because massive storage and other
expansions constitute a new project
2. In any event, the SMND is not supported by substantial
evidence
3. Storage structures are not part of baseline
4. The County improperly piecemealed the larger Project
V I . C O N C L U S IO N
4
31
31
33
33
34
39
43
46
46
48
50
52
52
53
53
55
56
59
61
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TABLE OF AUTH ORITIES
State Cases
Abbatti v. Imperial Irrig. Dist.
(2012) 205
Cal.App.4th 650
9
Apartment Ass'n of Greater LA,
go C al.App.4th
2
Arcadia Developm ent Co. v. City of Morgan H ill
(2011) 197
C al.App.4th 1526
5
Arviv Enterprises, Inc. v. So. Valley Area Plann ing
Comm'n
(2002) 101
Cal.App.4th 1333
4
Avenida San Juan Partnership v. City of San Clemente
(2011) 201
C al. App. 4th 1256
5
Banning Ranch Conservancy v.
City of Newport Beach,
S
22
7473
7
Barnes-W allace (Mitchell) v. City of San D iego/(Boy Scouts of
America-Desert Pacific Council),
2009 Cal. LE XIS 3507
4
California Statewide Communities Development Authority v. All
Persons Interested etc.
(2007)
40 Cal. 4th 788
8
Cham berlin v. City of Palo Alto (1986)186
C al.App.3d 181
2
Citizens Ass'n for Sensible Development of Bishop A rea v.
County of Inyo (1985)
172 C al.App.3d 151
4
Citizens for East Shore Parks v. State Lands Corn.
(2011) 202
Cal.
App. 4th 549
3
Citizens for Non-Toxic Pest Control v. Dept. Food Agr.
(1986) 187
C al.App.3d 1575
0
Com mun ities for a Better Env't v. Calif. Res. Agency
(2002)
103
C al.App.4th 98
6, 51, 52
Coun ty of Inyo v. City of Los Angeles (1977) 71
C al.App.3d 185
1
E. Bay Asian Local D ev. Corp. v. Cal.
(2000)
24 Cal. 4th
6
93
8, 29, 30,31
Fairview Neighbors v County of Ventura
(1999)
8
5
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70 Cal.App.4th 238
1
Fam ilies Unafraid to Upho ld Rural etc. County v.
Board of Supervisors (1998)
62 Cal.App.4th 1332
7
Fat v. County of Sacramento
(2002) 97 Cal.App.4th 1270
3
Fem inist W omen 's Health Ctr. v. Philibosian
(1984) 157
Cal. App. 3d 1076
1,34
Foothill Comm unities Coalition v. Cou nty of Orange
(2014) 222 Cal.
App. 4th 1302
0,45
Fox v. Los A ngeles
(1978) 22 Cal. 3d 792
1, 32
Friends of Davis v. City of Davis
(2000) 83 Cal.App.4th 1004
7
Friends of the College of San Mateo G ardens v. San Mateo Co unty
Com munity College Dist., S214o61
7
Jimmy Swaggart Ministries v. State Bd. of Equalization
(1988)
204 Cal. App. 3d 1269
3,40
Katzeff v. Dept. of Forestry Fire Protection
2010) 181 Cal.App.4th
601
4
Kings Co v. Hanford
(1990) 221 CA3d 692
0
Laurel H eights Improvemen t Ass'n. v. Regents of Univ. of Calif.
(1988) 47 Cal. 3d 376
7,47
Lucas Valley Hom eowners Ass 'n v. County of Mann
(1991) 233 Cal.
App. 3d 130
6, 29, 32,33
Pocket Protectors Protectors v. City of Sacram ento
(2004) 124
Cal.App.4th 903
8,46
Sands v. M orongo U nified School D ist.
(1991) 53 Cal. 3d 863
6
Save Our N eighborhood v. Lishman
(2006) 140 Cal.App.4th 129927,
47
8,46
Sierra Club v. County Of Sonom a
(1992) 6 Cal.App.4th 1307
7, 47,
48
8,46
6
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Sundstrom v. County of Mendocino
(
1
974) 202
Cal.App.3d 296 6
Wood land Hills Hom eowners Org. v. L.A. Cmty. College Dist.
(1990) 218
Cal. App. 3d 79
0, 31
State Statutes
14 CC R 15125(a)
2
14 CC R 15162
8,51
Cal Co nst, Art. I 4
8
Code of Civil Procedure 1094.5
6
Gov. Code, 66473.5
4
PR C 21166
8,51
Public Resources Code 21168.5
7
Federal Cases
Barnes-Wallace v. City of San D iego
(9th Cir. 2008) 530 F.3d 776
4
Bd. of Educ. of K iryas Joel Village Sch. Dist. v. Grum et
(1994) 512
U.S. 687
8,33
Centro Fa miliar Cristiano Buenas N uevas v. City of Yum a
(9th Cir.
2011) 651 F.3d 1163
5
McCreary County v. ACLU
(2005) 545 U.S. 844
28
Vernon v. City of Los A ngeles
(9th Cir. 1994) 27 F.3d 1385
33
Federal Statutes
Religious Land Use and Institutionalized Persons Act
(RLUIPA), 42 U.S.C.
2 0 0 0 C C et seq
9,35
U.S. Const., Amend. I, cl. 1
28
7
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Other Authorities
D avid A. Carrillo and Shane G. S mith,
California Constitutional
Law: T he Religion Clauses,
45 U .S.F. L. R ev. 689
5
H agman et al.,
Cal. Zoning Practice
(C ont.E d.Bar 1969) 5-33
5
Patricia E. Salkin and Amy Lavine,
The Genesis of RLUIPA and
Federa lism: Evaluating the Creation of a Federa l Statutory Right
and its Impact on Local Government,
40 U rb. Law.
1
95, P-79
(2008)
5
8
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I. INTRODUCTION
This appeal concerns a conflict between rural land use policies
and a large industrial expansion proposed by a religious entity.
Petitioner/appellant Coastal Hills Rural Preservation is a citizens
group in the remote forested rural hills of Sonoma County. Real
party in interest/respondent is Jack Petranker, an individual and
The Head Lama of the Tibetan Nyingma Meditation Center, a
corporation sole, a California nonprofit religious corporation (,
Petranker or Petranker/TNMC). (AA95) Petranker operates a
Tibetan Buddhist monastery, retreat center and religious printing
facility in the rural hills. This complex, founded in 2004, is Ratna
Ling.
In 2014, respondent County of Sonoma approved a major
expansion of Ratna Ling (the Project). The Project substantially
increases the retreat operations, triples the press workers, doubles
the press traffic, allows six presses instead of one, and authorizes
40,000 square feet of fabric membrane book storage structures
(warehouses)essentially a new project. The County allowed the
printing and book storage expansion because of claims these are
`accessory" uses integral to the Petranker/TNMC religious doctrine
of making and worshipping Tibetan Buddhist books.
In 2004, Petitioner had not objected to the modest-scale
religious press facility. However, the new Project was much larger
and inconsistent with the rural setting and constraints. Petitioner
brought a petition for writ of mandate alleging the County's approval
of the Project contradicted Sonoma County's policies for Rural
Resources and Development (RRD) land and violated the California
'The Administrative Record is referred to as "AR."
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Environmental Quality Act (CEQA). Petitioner appeals from the
denial of the petition.
The Project approval was in error on several grounds. The
County granted special preference to a religious organization, in
violation of Constitutional neutrality requirements. The massive
industrial printing and storage operation would not be allowed in
RRD land, according to the County's own words. (AR5986, 4755,
4124, 97, 4081-84) Yet the County allowed the storage structures by
finding they were an "accessory" religious use, and it granted this use
exclusively
to a Tibetan Buddhist landowner. (AR51, 62)
As our State copes with climate change, petitioner questions
why the County approved massive fabric storage structures filled
with paper and allowed a press facility producing over 350,000
books a year, in a high risk fire area. These industrial uses are
contrary to General Plan land use policies that restrict development
in fire prone areas. The County admits the fabric membrane
structures are not
compliant with Wildland-Urban Interface (Will)
fire standards in a high fire severity area. (AA 135, 1 0319, 7 625) A nd
the all-volunteer local Fire District states it has neither the
equipment nor the training to respond to an industrial fire at the
Project site. The County will point to a long (but incomplete) list of
fire mitigation measures. But these measures do not get at the root of
the problem: these industrial uses should be in an urban area with
appropriate zoning and infrastructure, as the General Plan requires.
The Project is inconsistent with the General Plan. Environmental
review of the Project w as also flawed, as discussed below.
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II.
TATEMENT OF ISSUES
A.
Did the Project violate Constitutional prohibitions
against establishment, preference, or aid to a
religion?
B.
Is the Project inconsistent with the General Plan and
zoning district?
C.
Is the Project's new mission of expansion and
massive long-term storage a "new project"
warranting an EIR?
D.
Did the County use the wrong baseline in finding no
"new project" and no significant environmental
impacts?
III. STATEMENT OF THE CASE
A.
004 MND and use permit
The Project site is at 35755 and 36000 Hauser Bridge Road,
Cazadercr on
120
acres in the rural hills of Sonoma County on land
zoned for RR D . (AR 1o9, 994, 17)
In 2004, Petranker/TNMC purchased3 the resort property to
create an annex to Odiyan, a nearby Buddhist monastery and retreat
center also operated by Petranker. (AA13511, 4599, 4619) He applied
to modify the previous use permit (AR4606-07) to operate a
monastery and a retreat center. (AA4598, 4602, 4615)
His application also sought to build an "accessory" religious
2
The Hauser Bridge Road address is relevant to petitioner's Motion
for Judicial Notice (MJN) that Hauser Bridge Road is an area of
concern for Sonoma County firefighters, as of September
20, 2015.
' T he P roject site is known as L ands of P etranker. (AR 13511 -12)
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printing facility of 18,750 square feet (AR4676, 4707) The Nyimgna
denomination of Tibetan Buddhism considers the production of
religious texts a religious vocation. (AR4612) The proposed press
facility would contain one press and allow monastery members to
continue to practice their religious service of printing and
distributing Buddhist texts. (AR4601, 4603) TNMC's Dharma
Publishing, then in Berkeley, would operate the printing facility.
(AR4603, 4599)
The application, proposal and Mitigated Negative Declaration
(MND) are at AR 4596-4675. They describe a limited press facility:
press facility includes a press (AR4603-o4, 4691 (MND))
Petranker estimated production at "a little under 100,000
books (including art) per year" (AR4612)
printing 100,000 books requires
12
40-foot truckloads of
paper, about one truckload per month. (AR4603)
Truck trips for the press and for supplies is estimated at .5 per
day (AR4602)
The 18,750 square foot press facility will accommodate
assembly
and storage
of completed books and art (AR4612)
Staff at Permit & Resource Management Department (PRMD)
considered the "large- scale" press facility to be somewhat
problematic in RRD zoning, stating:
[S]taff has some
concerns about the
compatibility
of this relatively large-scale
printing facility (100,00o books per year)
with the purposes of [the RRD] zoning
district.
Printed materials are to be
distributed on an international level rather
than just serving a local or regional need. To
approve the use permit, a finding must be
made indicating the printing facility is an
ancillary use to the retreat facility ...
The
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press facility would not be allowed if it was
not ancillary to the primary [retread use.
(Emphasis added)
(AR5985-86)
The staff report repeatedly stated total production of the press
facility was 100,000 books per year and the proposed printing
facility included "a press." (AR5985-86)
In September 2004, the Board of Zoning Adjustments (BZA)
approved the use and adopted a mitigated negative declaration
(MND). (AR 6-16) It required the use be operated under Petranker's
proposal statement (which estimated production at 100,000 books
including art per year). (AR9, 4603, 4612, 5985)
The BZA found the "noncommercial" monastery and retreat
center as conditioned followed the RRD zoning, as it was similar to a
noncommercial club or lodge, an allowed use. (AR6, 5985) It
imposed a maximum occupancy of 67 persons, with 27 persons in
the long-term housing and 40 persons at the retreat center. (AR7,
13) This housing ratio (27 workers vs. 40 retreatants) ensured the
press facility remained an accessory use. (AR13457)
T he BZA found the press facility was ac c essory to the
primary use, and "a non-profit organization [Dharma Publishing]"
which is directly related to the religious doctrine of TNMC. (AR7) It
required the use be operated under Petranker's proposal statement
(ioo,000 books and art per year). (AR9) The maximum occupancy
of the press facility was 27 persons, operations were limited to 15
hours per day, and "a commercial printing press facility is not
allowed as part of this Use Permit." (AR13)
The press facility began operation in August 2005. (AR2156)
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B.
ew mission: massive long-term book storage
The press facility served Petranker/TNMC's existing mission
of printing and distributing Tibetan books annually. However,
Petranker added a "new mission" to replace and store 6,000 libraries
of
2,000
volumes each (12 million books) destroyed during the
Chinese invasion of Tibet. This new mission implied a huge
expansion of printing facilities, storage, and book production over
many years. (AA
1
3434, 13050, 4859, 5639,3077, 6008-09) The key
focus at Ratna Ling became the Tibetan "text preservation" project
(Yeshe D e). (AA 5818-5819) T he mission c ontinues to this day.
(AR8862, 8864, 8877)
The new mission required lots of storage. Petranker began
geotechnical planning for a multi-story building (AR4716) and in
2006 proposed a four-story, 95,000 square foot "book depository"
("sacred text treasury"). (AR4755-56) In 2006, PRMD told Petranker
the book storage proposal was inadvisable. It rejected the RLIUPA
religious freedom argument he had raised
:
We met with County Counsel and discussed
RLUIPA
in general and determined that it
requires that all projects be equally evaluated
under the criteria of the zoning code.
(Emphasis added)
(AR4755)
Also, the proposed "sacred text treasury" was not consistent
with land use policies:
[Y]our proposal is not consistent with the land
use policies in our adopted General Plan or
zoning for this site. The proposal is much too
4
The Religious Land Use and Institutionalized Persons Act
(RL U IPA), 42 U.S.C. 2000CC
et seq., is a United States federal
law that gives religious institutions a way to avoid discriminatory
zoning law restrictions on their property use.
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large to permit as accessory to the retreat use
... nor would it be consistent with the use
permit which allowed the printing press only
as an accessory use to the retreat. ...
[The]
printing press and 18,000 sf of storage space
... we consider about the limit of what is
reasonable for an accessory use.
The 95,000
sf building is about the size of a big box or
large department store and would appear to
make the printing and warehouse the
predominant use. (Emphasis added)
Ibid.
Lastly, PRMD advised Petranker he could pursue a General
Plan amendment to request an exception for book storage, but
P R M D w o uld
not
recommend approval. PRMD suggested that he
consider alternatives:
Alternatives would include, printing only the
number of books that can be distributed in the
near term or seeking another warehouse site
with appropriate zoning to store the books for
an indefinite period.
Ibid.
C.
2008 storage caves proposal
Undeterred, in February 2008 Petranker applied for a general
plan amendment, special area policy, and use permit to expand the
retreat, construct two underground warehouse caves totaling 90,000
square feet to store books, and add an exhibition hall with an 800-
person capacity. (AR37) The caves were based on an acute need for
short-term and long-term storage. (AR4859, 3077, 3083, 13050,
6009) The caves were also intended to "protect printed texts from
nuclear disaster and other calamities." (AR5377)
D.
Expansion: new construction, additional presses,
ramped-up production, commercial activities,
temporary storage structures
The new mission coincided with expansions at the Project site,
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the most significant of which were a six-fold increase in the number
of printing presses and constructing 40,000 square feet of
temporary storage. PRMD permitted many but not all of these
expansions. There was no C E QA review.
In 2006, Petranker added a detached barn (AR6696), a
2,050
square foot meditation center (AR60, 4598-99, 4601), and a
2,010
square foot conference center (AR6o).
In
2006/2007,
Petranker moved the entire Dharma press
operation from Berkeley to the Project site, includingfive
additional
presses. (AR8214,
8221,
6745) This violated the
2004 use permit.
(AR1079)
In 2007, Petranker converted a "covered loading area" into
2,500
square feet of additional production area, changing the 18,750
square foot press facility into a 21,234 square foot facility. (AR5858,
37) The added production area contains new equipment (AR5968)
that allows the operation to print 8,00o sheets of paper per hour and
use four tons of paper per day. (AR37, 5827, 5840 8216, 8219, 12719)
Photos illustrate the highly industrial nature of the press
operation. (AR5935-5849)
The press operation produced books and objects in huge
amounts, far exceeding the 100,000 per year level. (AR8231, 8233)
In
2009,
the facility shipped 4040 ft containers with 395,000 books
to India, and that year also produced over 3,000,000 "thankas" and
prayer wheels. (AR8231, 8233-34;
see also
13433) E very day we
supply our presses with four tons of paper " (AR8230) In
2010,
PRMD observed that inventory in the storage exceeded 500,000
i tems. (AR 13433)
Commercial activities. In
2004,
Petranker claimed the
proposed press facility "does not operate as a conventional
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commercial business." (AR5979) In 2010, 551 products were offered
for sale on the Internet, including eye pillows, incense, cushions,
wrapping paper, and digital media. (AA5948-5955;
see MJN(2)
These products are made mostly by short-term volunteer workers,
heavily recruited for "work/study" programs at no pay or $150 per
month, not full time residential members of the monastery.
(AR5873
-
74, 5877, 6568, 6574
-
77)
In March/April 2008, while the proposal for the storage caves
was pending, PRMD issued a time-limited zoning permit allowing
construction of 39,270 (actually, 41,0905) square feet of fabric
membrane structures for storage of "sacred texts," as follows:
two structures of 2,870 and 6,000 square feet
two structures of 14,400 and 16,0oo square feet. (AR38.)
These are at least 40 feet high and have a volume of almost
one million cubic feet.
(AR 37-38, 1072)
PRMD wrote on the permit: "This is a temporary structure &
must demo on 3-25-11. (AA 5533, 4123)
When it issued these permits, PRMD staff
exempted
the
membrane structures from complying with Chapter 7A of the then-
existing C alifornia Building Code ( C BC ) because they were
"accessory" structures. (AR44, 113) The structures did
not have to
comply with the stricter fire safety standards applicable to a
Wildland-Urban Interface Fire Area such as the Project site. (AR135,
10319)
5
The County uses the figure "39,270." However, Petranker
understated the size of the "16,000" square foot tent. It is actually 90
feet by 198 feet, for a total of 17,820 square feet. (AR 3387, 3361 )
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No CEQA review was conducted in approving the temporary
storage structures. (Alt1073, AR21.60.)
The storage permit expired, was extended for one year, and
then expired on March
25, 2012.
(AR38) The 40,000 square feet of
warehouse storage then illegally remained at the Project site.
(AR7324-733o)
E.
2008 MND for reservoir
In August 2008, Petranker/TNMC obtained approval to build
a reservoir adding 20-acre feet of water supply, plus an additional
7,500 square feet to a previously-approved wellness center.
(AR5376)
The 2008 MND acknowledged the additional water supply
capacity was intended, in part, to serve Petranker's
other expansion
applicationthe
caves, exhibition hall etc.and had the potential to
induce growth. (AR 5377, 5397, 5399) H owever, the M N D did
not
study this potential impact because the other expansion proposal
would undergo its own separate environmental review:
The expansion of the retreat center uses, the
conference center and related activities and
cave buildings are the subject of a separate
application for a Use Permit and General Plan
Amendment that
is undergoing separate
environmental review ...
by the Sonoma
County Board of Supervisors. (Emphasis
added)
(AR5377)
The promised environmental review of Petranker's large-scale
storage plans never happened.
F.
Violations of 2004 use permit
In February
2010, 172
signers of a petition against the caves
proposal filed a 280-page Complaint with the County for
Petranker/TNMC's violations of the 2004 use permit. (5777-79,
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5782-96) Code Enforcement promised to investigate the "increase in
intensity of use of printing press operation and volume of
production." There was no report back. Eventually, petitioners were
told the notes from Code Enforcement's site visit were "lost."
(AR8263-65) Petitioner's complaint and a comprehensive 400-page
follow up were not addressed. (AR7315) In 2013, Code Enforcement
produced a summary memo, without any inspections, concluding
there are no active violations for the property. (AR1079)
G.
Religious preference objections; Petranker invokes
RLUIPA
On many occasions, petitioner and other citizens (and even
staff) objected to special treatment for Petranker/TNMC's religion,
exhausting administrative remedies. (AA4755, 9192-93, 9200, 4756,
13516, 5735212840,
12
74527572755, 702, 772, 781, 78527982
13672
2100)6
O n A pril 8, 2014, Petranker offic ially invoked R eligious
Freedom" rights under constitutional and statutory law, including
RL U IPA. (AA13603)
H.
Revised Project approved on 3-2 vote
In
2011,
Petranker dropped the 2008 proposed caves project,
and sought a Master Use Permit (MUP) to "clarify ambiguities" in
the
2004
approval. (AR38, 556-576, 6760-6766) The new Project is
described in Sections I and J,
infra.
It included deregulation of press
production, expanded press operations, and making the massive
temporary storage structures permanent.
6
Petitioner exhausted administrative remedies on other issues.
(AR7175-7245, 8428-8615, 8622-8651, 8654-8818, 8829-9207,
9291-9297, 12051-12063, 12233-12212283,
12
385
-
1253723800
-
742
3964
-
78, 4112-89; 4366-4421)
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In June
2012,
the BZA adopted a MND and approved the
2011
Project. (AR38) Petitioner timely appealed the BZA's decision.
(AR39)
Petranker submitted an updated proposal application. In
February 2014, PRMD released the Subsequent MND (SMND) at
issue. The Board of Supervisors heard the matters on April 8, 2014.
(AR39) On June 24, 2014, the Board reopened the hearing, and
ultimately certified the SMND and approved the Project by a 3-2
vote. (AR5o) The County made no findings regarding religious
preferenc e or free exerc ise of religion or R L U IP A.
I.
ajor findings for Project approval
1.
Modest expansion: storage structures are
baseline conditions
The County found "existing conditions" is the appropriate
"baseline" for environmental review of the Project, the temporary
storage structures are part of the baseline, and the expired permit for
the structures is not relevant. (AR42) By excluding the massive
temporary structures which are the physical embodiment of
T N M C 's new mission of massive long-term storage the C ounty
concluded the Project is merely a "modest" expansion. It found the
Project presented no substantial changes or circumstances or new
information requiring revisions to previous MNDs. (AR41-42)
2.
Storage structures: accessory to religious use
A s a spec ial land use polic y, available to only one religion, the
County found the storage structures are an "accessory" use, based on
TNMC's religious retreat and religious use of the structures. (AR45,
48) The County concluded the storage structures are permissible in
RRD land and are exempt from certain fire safety standards. (AR113,
135)
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a)
eligious rationale
The County abandoned its normal policies when it adopted the
religious rationale for an "accessory" use. In 2004, PRMD stated a
"large-scale" accessory structure such as the proposed 18,750 square
foot printing facility is not normally allowed in RRD zoning.
T he press facility would not be allowed [in R R D
zoning] if it was not ancillary to the primary use
[retreat].
(AR5986)
In 2006, the Deputy Director of PRMD confirmed the policy:
Your [2004] use permit allows the printing
press and 18,000 square feet of storage space
which we consider the limit of what is
reasonable for an accessory use.
(AR 4755, 4124,
see 4785)
PRMD Deputy Director Barrett testified, when accessory uses
are within another building, PRMD usually uses a rule of thumb of
10-15% of the floor area as a normal standard for an accessory use.
(AR4102)
The SMND confirmed the standard policy, stating, but for the
"accessory" designation,
"[t]the
sacred text storage buildings ...would
not be allowed as a stand alone separate use." (AR97)
Despite the policy, staff eventually capitulated to the demands
of this religious applicant. In 2008, PRMD issued temporary permits
for 40,000 square feet of membrane storage structures as an
"accessory" use. (AR113) In 2014, Petranker/TNMC requested the
County reaffirm this "accessory" designation for the storage
warehouses. Petranker asserted the storage structures are
"accessory" because the printing relates to the religious doctrine of
the retreat, and the "texts" are reverentially deposited and worshiped
in a S acred T ext T reasury. (AR 1669-70, 533)
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The County agreed. It found the press operations are an
"accessory"
use because volunteering or working in the religious
press facility is an integral part of the retreat use's religious
practice." (AA49) It also found the storage structures are not an
"industrial" use, but are "accessory" to the retreat center use. (AR45)
The County found this "accessory" designation is
not available
to a non-religious owner or any other religion.
The Conditions
require termination of the printing facility if the site is conveyed to a
property owner not affiliated with Tibetan Buddhism, and the
accessory use of the facility and associated storage shall no longer be
permitted accessory uses. (AR51, 62)
Some Supervisors were concerned with the calculations and
lack of consistency in the definition of "accessory," as demonstrated
during a hearing, when Supervisor Zane attempted to get
clarification from PRMD Deputy Director Barrett:
SUPERVISOR ZANE:
--how do you determine that this is
accessory? Because it seems like the square footage is far
greater in terms of the printing and the storage versus the
retreat. ...
BARRETT: --
that is the crux of the matter, and the difficult
question is how do you determine accessory use. ... it has to be
determined that it's incidental and subordinate to the primary
use of the land. In this case, because it's a religious land use
and they have demonstrated that they're it's part of their
religious practice to have community service, and their
community service is tied to the press, they demonstrated ... ,
that it's part of the religious land use and accessory to their
retreat function. That that's very different. Religious land
uses are kind of different than your standard, you know,
commercial facility where you might say, you know, 15 percent
of the floor area is devoted to this accessory or ancillary use. In
this case, it's integral to their religious practice.
SUPERVISOR ZANE:
So you're saying that it's kind of waived
when it comes to religious land use? I mean, can anybody set
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up some type of factory and say it's for religious purposes and
have that waived? I mean, that's the question.
BARRE FT:
That is a policy call for the board, really, as to
whether and how much accessory use you would feel
comfortable with on this site.
/
SUPERVISOR ZANE:
So the bottom line is I'm still trying to get
to the footprint and the term accessory use. There's no real
environmental analysis on the footprint in terms of the
publishing and printing versus the retreat, it's just we're using
a terminology called accessory use and religious land use, but
I'm not seeing the analysis. And that's what I'm trying to get at
is if there's any real analysis there that puts it into the
accessory use.
BARRETT:
I can share with you the analysis. And the findings
of the BZA was that it was integral to their practice, and for
that reason was considered accessory. ...
SUPERVISOR ZANE:
Okay. ... I'm asking for data. I'm asking for
scientific data that puts it into accessory use. That's what I'm
trying to determine, if there's if that analysis has been made.
BARRETT:
Yeah. The analysis is really qualitative, it's not
quantitative.
(AR4081-84)
b)
uantitative rationale
The County also made some quantitative findings to support
its "accessory" finding. (AA49) It relied entirely on a poorly-sourced
analysis submitted by Petranker/TNMC. (AR) The County cut
and pasted the Petranker analysis, incorporated it verbatim, and
found the storage structures and press facility are subordinate to the
retreat use. (AR48-49)
The County's analysis compared the press facility footprint
(1.5 acres or 1.25%) to
all the other land area at the Project site
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(118.5 ac res or 98.75%),
including undeveloped open space
such as
forested and steeply sloping area surrounding the retreat center and
the printing facility. (AA1668-1669, 9165)
Petitioner submitted a well-sourced analysis, showing the
printing facility was the primary use at the Project site. It compared
the total square feet of building area (132,602) to the uses of the
buildings. Printing (65,209) is the largest at 49%, retreat at 38%,
staff housing at 13%. (A R 9165-9166;
see
13517 [color graph])
Printing is also the largest use when one compares
undisputed
figures on the numbers of press workers, retreatants, retreat days and
printing days: 65 percent of people on site are working in the press
building, and there are 18,240 printing days per year, far exceeding the
5,301 retreat days per year. (AR 36-37, 7600, 9147, 9172; AA 118, 129-31)
2.
torage structures: no practical effect on fire
danger
The County imposed conditions and mitigation measures on the
Project to increase fire safety, and required sprinklers in the storage
structures. (AR39, 44
-
45, 57-60) It concluded making the 40,000 square
feet of temporary storage structures permanent will have "no practical
effect on fire danger. (AR 44)
The Timber Cove Fire Protection District, a rural all-volunteer fire
department, is the agency responsible for fire suppression at and around
the Project site. (AR134) The Fire District states the conditions imposed by
the County will not adequately protect the people, property and natural
resources within the District from the risk of industrial fire posed by the
Project's operations. (AR12702;
see also,
AR4125) This conclusion is based
on: 1) the Fire District's lack of training and equipment to fight industrial
fires, and 2) the storage structures' lack of compliance with the Wildland-
Urban Interface Fire Resistive standards. (AR12719)
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a)
High fire hazard zone
CAL FIRE ranks the Project location as a "high" wildland fire
hazard severity zone. (AR10319) It has identified several "historic
wildfire corridors" in Sonoma County. The Project site is in one of
those corridors, the Guerneville/Cazadero area which experienced
fires in 1923, 1951, and 1977. ( 13571; see MJN(1))
b)
Training and equipment
The Fire District states they do not have the capacity or
equipment to fight a fire of the scale and type associated with large
printing operations and text storage. (AR12704) Suppression of
industrial high-piled combustible storage fires requires specialized
equipment and training. (Alt1072) This Project presents a risk of
high-piled combustible storage; this risk is illustrated in site photos.
(950, 13528-29[photo], 5857 [photo]) Absent the required
equipment and training, the Project poses significant fire risks to
residents, neighbors, and forests. (AR12721.) All of the Fire District
is zoned RRD. Before the large press operations began at the Project
site, there were no significant industrial operations within the
D istrict. (AR 12704;
see AA159-60) The District does not have the
equipment or training to fight industrial fires and hazards.
(AR12704)
The Fire District and the Sonoma County Fire Chief agree it is
reasonable to identify a fire in the warehouse tents as an industrial
fire. (AR4449, 12702) The Fire District explained why it lacks the
training or equipment needed to address the risks of the Project's
industrial operations. (AR4125, 1072, 12702-12711) When an
industrial fire occurs, a fire department in an industrial zone would
respond with Multiple Type 1 engines, a ladder truck, an ambulance,
a Rapid Intervention Crew, a Breathing Air Salvage Truck, and
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Station coverage, and support from adjacent fire departments.
(ARI2705) The fire department would have the ability to pump
2,000-3,000 gallons of water per minute, and initial response times
would be five minutes or less. (AR12705)
The District has no Type 1 fire engine. (AR12705) The
engines the District has are designed to fight wildland fires and
conventional structure fires. (AR12705) One of the mutual aid
neighbor fire departments has a Type 1 fire engine, but their
response time to the District can range from 30 to 45 minutes, which
would not adequately mitigate this impact. (AR12705) Even with a
Type 1 engine, however, the District cannot guarantee it could
suppress a fully-involved industrial fire in the printing facility or
storage tents. (AR12705)
According to the Wildfire Hazard and Risk Assessment section
of the County's Hazard Mitigation Plan (AR13566-13587), problems
have resulted from the condition of existing equipment and
matching the type of equipment and staff training to the type of fire.
Fire-fighting responses alone cannot fully eliminate or reduce the
risks from wildland fires. Taking proactive steps to reduce the
incidence of, and potential risk from, wildland fires before they occur
is essential. (AR13574)
Municipal fire departments report thousands of structure fires
in a four-year period in manufacturing facilities and warehouse
storage, even in the presence of sprinklers. (AR12552)
c)
xemption from Wildland Standards
In 2008, PRMD exempted the storage structures from a major
fire code. (AR7625 [admission by building inspector]). Chapter 7 of
the 2007 California Building Code ("CBC") governs the materials and
construction methods for exterior wildfire exposure for structures in
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a WUI Fire Area. (AR135) PRMD determined the storage structures
were "accessory" and thus exempt from compliance with the WUI
standards. (AR 135, 45, 10317-19)
This was a major mistake, especially in a high fire severity
zone. The storage structures are made of "flame resistant"
membrane fabric . (AR 135, 1076) They do
not
comply with the W U I
Fire Resistive Standards, which require any structure built in the
District after January 1, 2008 be built with certified noncombustible
or ignition resistant materials. (C BC 701 A .3.1; A R 107 4) Ignition
resistant" fabric is tested at 30 minutes of direct flame exposure, as
compared to 10 minutes for "flame resistant" fabric. (AR1074-75) To
date, there are no membrane fabric structures that have been
certified as ignition resistant. (AR13531)
d)
Accessory under CBC
Regardless of whether the storage structures are deemed
`accessory" under the zoning code, the structures do not meet the
definition of "accessory" in the
building code,
and therefore must
comply with the WUI Standards. (AR1076)
T he C BC defines acc essory buildings as Group U occ upancy
(e.g., carports, barns, greenhouses) and
not otherwise classified in
any specific occupancy.
(CBC 311.2; AR io77)
The storage structures are classified as a specific occupancy
Group S-1 Moderate Hazard Storage: Books and paper in rolls or
packs. (CBC 311.2; AR 1077) The C ounty agrees the S-1
classification applies. (AR45)
Since the storage buildings are classified as a specific
occupancy, they are not "accessory" structures under the CBC and
must comply with the WUI Standards. However, they do not comply.
(ARio76-1078)
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4.
Roads, hazardous materials
Petranker and petitioner submitted studies of the Project's
impacts on Hauser Bridge Road (AA6136-37, 7205-09), conceded to
be a narrow, winding road, with ii curves with restricted sight
distance, with much of the road too narrow to allow opposing
vehicles to pass and lacking shoulders. The County required a
warning sign. (AA103) Petitioner's study, photos, traffic logs, and
map of area show inadequate access roads. (AA7205-09, 5923-36,
5920;
see also
7383, 5931, 6827, 6830, 6892)
The inadequate roads are one reason the Project must be
rejected as inconsistent with the intent of the General Plan. The
General Plan rejects proliferation of growth in areas with inadequate
public services and infrastructure. (See
Section III, I. 4, infra)
Petranker did not disclose all of the hazardous materials
generated by the press facility, or their quantity. (AR4126-4130,
9011-9023) The County found no changes since
2004 and no impact
(AR2995) but did not quantify increased hazardous material
generated by the expanded press operation.
(Compare
AR6645 [in
2004 7 gal. per week] with AR4709 [in 2005 rising to
11-12
gal. per
week]) The amount as of
2014
should have been analyzed, due to fire
risk. (AR4125-26)
5.
Alternatives
Petranker claimed the Project must be at Ratna Ling because
it is a sacred place, part of the Southern Quadrant of the Mandala of
Odiyan, the nearby sister monastery. (AR211, 9352)
There is a superior alternative location: Petranker/TNMC
conducted the press operation in an industrial area in Berkeley for
many years. (AR7468) The Project requires 730 100 mile truck trips,
annually, to bring the press products to a port, bookstore, Internet
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customer, or distribution point. (AR42) Because the County
prepared no EIR, it did not consider alternatives to the Project. Had
it done so, it would have found there are other areas zoned for this
use, with better access to transport heading to Asia, the main
destination for the press products. (AR789, 595) Under the General
Plan, press operations and warehouse storage are urban uses that
should be conducted in an industrial area, with access to shipping,
ports and public services such as industrial firefighting capacity.
(Section V. B. 1, 2,
infra)
J.
he Project compared to 2004 project
In a nutshell: the Project deregulates and expands printing,
adds warehousing, and adds commercial printing and
manufacturing, and Internet sales and distribution. It also nearly
doubles the maximum site occupancy and adds concomitant housing
and storage in at least 10 new structures. Arbitrarily, the County
concluded, compared to 2004, this is merely a "modest" expansion.
Press production. The
2004
project had a production limit of
100,000 books (including art) per year. (AR9, 4603,4612, 5985)
In 2013, the County interpreted the 2004 permit to set a specific
limit. (AR13051) Actual production levels at Ratna Ling have far
exceeded the limit. (Section
D
[350,000 books per year], 1080
["likely" violation]) The Project eliminates any production limit.
(AR61-62)
Presses. The
2004
project allowed one press. (AR4691, 4603-
04) The existing five presses are likely a violation of the 2004
permit. (AR20, 62, 1079) However, the Project eliminates the one
press limitation, sanctioning the five additional presses. (AR61-62,
1079)
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Press workers. The 2004 project limited the maximum
occupancy of the press building to 27 workers. (AR7, 13) The press
operation violated this limit. (AR1080) Now, the Project sanctions
8o press workers, which nearly triples the 2004 limit. (ARiii) The
Project also removes the worker/housing ratio that had attempted to
ensure the press facility remained an accessory use. (AA51, 13457)
Commercial manufacturing and sales. The 2004 permit stated
"a commercial printing press facility is not allowed." (AR13)
Commercial manufacturing and sales were rampant.
(See
Sec tion D ,
supra [551 items for
sale]);
MJN(2) This is not
de minimus
commercial activity. The commercial activity could be a permit
violation, depending on whether the County retroactively authorizes
it.
(See AR1082)
Now, the Project "clarifies" the 2004 permit allowed
commercial production and sales of books and "sacred" objects and
Internet sales (ARno). The approval loosely defines "sacred" objects
to include lifestyle products such as wrapping paper and calendars
and cushions and "similar objects" with approval of PRMD.
(Ibid.)
The approval allows production of commercial "sacred" objects on
io% of the press facility's floor area. (AR61) The County attached no
monitoring to this 10% limitation or placed any limit on commercial
products stored in the massive warehouse structures. (AR61-62)
Press trucks. The 2004 approval estimated truck trips to
transport books at .5 trips per day. Actual book shipping traffic was
much higher than .5 trips and violated the permit. (AA1081) The
Project increases truck trips to one 24-foot long truck round-trip per
day, Monday through Saturday. (ARiii). This doubles the estimated
traffic over the 2004 figure. (AR4602)
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Storage warehouses. The 2004 permit had no dedicated
storage space, just the press building itself. (AR4612) The Project
adds 40,000 square feet of permanent storage. (ARno)
This triples the size of permanent building space used for the
printing operations, from the original 18,750 to over 6o,000 square
feet. (AR3o) This allows a vast number of books, supplies and
"sacred" objects to be stored in the warehouse structures. (AR5684, a
photo of one warehouse with "upwards of a million inventory items
in here plus supplies"])
Maximum site occupancy. The 2004 permit allowed a
maximum of 67 persons. (AR7) The Project increases this to
122
persons, an 8o% increase. (ARno)
New housing. The Project adds eight tent structures
accommodating 24 persons, a 3,000 square foot, five-bedroom
residential dwelling for
12
persons, and 4,080 square feet of
residential storage in several buildings. (ARni, 6o-61) A 5,900
square foot senior center for resident seniors and caregivers,
previously approved, will also be constructed.
(Ibid.)
K Appeal
On July 24, 2014, petitioner sued the County and real party
Petranker/TNMC for writ of mandate and declaratory and injunctive
relief, alleging violations of CEQA and the County's General Plan and
R R D zoning regulations. (AA 6)
The Court denied the petition. On April 27, 2015, judgment
was entered, and on May 4, 2015, notice of entry of judgment was
filed. (AA261, 259) This appeal followed
On
June 25, 2015. (AA 276)
IV. STANDARD OF REVIEW
The decision to approve the Project is governed by Code of
Civil Procedure 1094.5. The standard is whether there was any
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prejudicial abuse of discretion. Abuse of discretion is established if
the respondent has not proceeded in the manner required by law, the
order or decision is not supported by the findings, or the findings are
not supported by the evidence. Where it is claimed the findings are
not supported by the evidence, abuse of discretion is established if
the court determines the findings are not supported by substantial
evidence in light of the whole record.
(Lucas Valley Homeowners
Ass'n v. County of Mann (1991) 233
C al. App. 3d 130, 141-142 [claim
of unconstitutional religious preference])
The determination of General Plan consistency is subject to a
strong presumption of regularity. Under the abuse of discretion
standard, the determination may be overturned if the County did
not proceed legally, or if the determination is not supported by
findings, or if the findings are not supported by substantial evidence.
(Families Unafraid to Uphold Rural etc. County v. Board of
Supervisors (1998) 62 Cal.App.4th1332,
1338)7
The CEQA decision is reviewed for prejudicial abuse of
discretion. The court does not pass upon the correctness of the EIR's
environmental conclusions, but only upon its sufficiency as an
informative document. (Public Resources Code 21168.5;
Laurel
Heights Improvement Ass'n. v. Regents of Univ. of Calif.
(1988) 47
Cal. 3d 376, 392)
7
The standard of review on general plan consistency decisions is
pending before the California Supreme Court.
(Banning Ranch
Conservancy v. City of Newport Beach, S227473)
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Whether a project is "new" or a minor change to an existing
project is a question of law, that the court reviews de novo.
(Save
Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1299,
1297)8
When a new project is reviewed, an agency's determination of
whether an EIR is required is reviewed under the "fair argument"
test.
(Friends of Davis v. City of Davis (2000)
83 Cal.App.4th 1004,
1016-1017;
Sierra Club v. County of Sonoma
(1992) 6 Cal.App.4th
1307, 1316) It mandates preparation of an EIR whenever it can be
fairly argued on the basis of substantial evidence the project may
have significant environmental impact. (6 Cal.App.4th 1307, 1316) If
there is substantial evidence of such impact, contrary evidence is not
adequate to support a decision to dispense with an EIR. If there is a
disagreement among experts over the significance of an effect, the
agency is to treat the effect as significant and prepare an EIR.
(Id.)
Whether a fair argument exists is a question of law that the court
reviews de novo, with a preference for resolving doubts in favor of
environmental review.
(Pocket Protectors Protectors v. City of
Sacramento (2004) 124 Cal.App.4th 903, 927)
V. ARGUMENT
A.
he Project violates the Establishment Clause of
the U.S. Constitution and the Establishment, No
Preference, and No Aid Clauses of the California
Constitution.
The establishment of religion is forbidden under the United
States and California Constitutions.
(U.S. Const., Amend. I, cl. 1; Cal
Const, Art. I 4)
The California Constitution has additional
8
The standard of review on the "new project" determination is also
pending before the Supreme Court.
(Friends of the College of San
Mateo Gardens v. San Mateo County Community College Dist.,
S214061)
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structures are an "accessory" use, the County exempted them from
compliance with WUI fire standards in a high fire severity area.
(AR135)
No Secular Purpose. There was no secular purpose to the
Project's approval of the expanded press and industrial storage
operation. These were approved as an "accessory use" due entirely to
their religious importance to the Petranker/TNMC religion. The
County's primary justification was that "volunteering or working in
the religious press facility is an integral part of the retreat use's
religious practice." (AR48) This "accessory" designation is
unavailable to a nonreligious entity or even a non-Tibetan Buddhist
entity. (AR51, 62)
The aim of the secular purpose test is preservation of
governmental neutrality in religious matters.
(E. Bay,
24 Cal. 4th at
707) In California, churches are to be treated like any other group in
determining compliance with zoning regulations.
(Lucas Valley
Homeowners Ass'n v. County of Mann, supra,
233 C al. App . 3d 130,
143) A "permissible neutral purpose" was found in a statutorily-
defined exemption to a recently-enacted landmark designation law,
available for any religious-entity-owned noncommercial property
with a showing of substantial hardship, because the Legislature
could have reasonably believed that the new restrictions could
burden the free exercise of religion.
(E.
Bay, 24 C al. 4th at 712-13)
Another secular purpose was found when a school district granted a
long-term lease of a surplus property to a religious entity, because
the lease provided the district with financial resources and both
religious and secular groups had equal opportunity to enter into the
lease.
(Woodland Hills Homeowners Org. v. L.A. Cmty. College
Dist. (1990) 21 8
C al. App. 3d 79, 94-95) Finally, when a c ounty
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enacted a change to their zoning code to allow senior housing
facilities the secular purpose was the need for senior housing
alternatives, and their approval of a religious entity's conforming
project did not violate the Establishment clause because the benefit
was available to any entity throughout the zoning area.
(Foothill
Communities Coalition v. County of Orange
(2014) 222
Cal. App.
4th 1302, 1320-21)
The County did not justify its action with a secular purpose,
and instead was explicit with its religious motivation. Before the
Board of Supervisors, Supervisor Zane asked for clarification on the
"accessory use" designation given the printing operation's greater
footprint as compared to the retreat. She received the following
answer:
In this case. . . it's part of the religious land use and
accessory to their retreat function. . . . Religious land
uses are kind of different than your standard
c ommerc ial facility where you might say you know, 15
percent of the floor area is devoted to this accessory
or ancillary use.
In this case, it's integral to their
religious practice. . . . The analysis is really
qualitative, it's not quantitative.
(AR4081-84) The answer reveals that the County's "qualitative"
analysis considered just one thing: the importance of this activity to
the TNMC religion. This is an impermissible secular purpose.
Primary Effect Advances Religion. The Project approval has
the primary effect of advancing religion because the County has
abandoned its typical zoning regulations to give special benefits to
Petranker/TNMC. This is no incidental benefit, but a discretionary,
explicit preference for one particular religion that allows this
religious entity alone to exceed the normal bounds of the zoning
laws. (AR5i, 62)
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A statutory exemption from a landmark designation law did
not advance religion, because it merely allowed religious groups to
use their noncommercial properties as they had done before the new
law was passed.
(E. Bay,
24 C al. 4th at 714) A ny benefit to a religious
entity from a lease entered into with a school district, beyond the
normal benefits of a lease, did not advance religion because it was
incidental.
(Woodland Hills,
218 Cal. App. 3d at 94) The illuminated
display of a cross on the side of the City Hall, however, advanced the
Christian religion by placing the "power, prestige, and financial
support" of the city government behind it.
(Fox v. Los Angeles
(1978) 22 Cal. 3d 792, 808-09 (J. Bird, concurrence)) Similarly, a
district attorney's proposed transfer of remains to a Catholic group
for burial was found to violate the Establishment clause, because the
primary effect would have been to give symbolic support to the
group's religious views.
(Feminist Women's Health Ctr. v.
Philibosian (1984)157
C al. App. 3d 1076, 1091)
The Project approval has the primary effect of advancing the
Petranker/TMNC religion because it affords special treatment to the
religion, providing symbolic support and placing the imprimatur of
the County's power and prestige behind this religious practice. This
preferential treatment also advances Petranker/TMNC by enabling
the entity to bring in substantial revenue via its industrial printing
operation, a benefit unavailable to similarly situated religious groups
or secular entities in the RRD zoning category. (AR51, 62)
Excessive Entanglement. Excessive governmental
entanglement with religion may be administrative or political.
(Lemon, 403
U.S. at 622) By approving the Project, the County has
opened itself up to successive requests for religiously-motivated
zoning exceptions to its RRD category, inviting political division
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along religious lines. It must now also discern between "secular and
sectarian subjects" and engage in excessive monitoring of project
conditions.
An illuminated cross displayed on the side of City Hall was
excessive entanglement with religion, because the city would be
subjected to successive requests for the same treatment, breeding
political division along religious lines.
(Fox, 22
Cal. 3d at 812 (J.
Bird, concurrence)) The opinion expressed concern these requests
had already begun, wondered what the limit would be, and noted the
impropriety of City determinations on what symbols might be
equivalent. (Id.)
The County, too, will be forced to deliberate on
future requests involving questions of which proposed industrial
uses are truly "accessory" to the religious uses invoked, inviting
political division along religious lines and causing unlawful
involvement in "discerning between secular and sectarian subjects,
values and beliefs."
(Lucas Valley,
233 C al. App . 3d at 149) Future
similar requests are an all-too-real possibility, as Petranker/TNMC is
not unique in its practice of printing religious tracts.
(See e.g.
Jimmy Swaggart Ministries v. State Bd. of Equalization
(1988) 204
Cal. App. 3d 1269) Should the next similarly-situated group not
receive equivalent treatment the County will violate the central
tenant of Establishment clause jurisprudence, neutrality.
(See Kiryas
Joel, 512 U .S. at 703)
The Project approval conditions, such as the io% non-book
storage, daily truck trips, number of workers, and hours of
operation, will also cause administrative entanglement, because
Petranker/TNMC has a ten year history and pattern of violating
zoning conditions.
(See supra,
Section III.F) In this circumstance,
these are not mere "mundane matters" subject to normal zoning
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oversight, but will instead require "excessive and enduring"
monitoring or risk becoming meaningless provisions subject to the
same bad-faith disregard demonstrated by Petranker/TNMC with
the 2004 permit conditions.
(Lucas Valley,
233 C al. App. 3d at 151)
Although an organization is given the chance to self-monitor in good
faith, lack of substantial compliance may require "excessive and
enduring" monitoring, causing excessive entanglement.
(Id.) The
Project conditions also force excessive administrative entanglement,
as the County must discern between "secular or sectarian subjects"
as part of its discretion over production of "other" sacred objects.
(AR62; Id.
at 151-52)
2.
he No Preference Clause
California courts have suggested that the No Preference clause
of the California Constitution offers protections greater than the No
Establishment clauses.
(Lucas Valley,
233 C al. A pp. 3d at 145;
see
Vernon v. City of Los Angeles (9th Cir. 1994) 27 F .3d 1385, 1395-96)
The most recent California Supreme Court decision on the topic
declined to "definitively construe" the clause, and held instead that
the No Preference clause was satisfied under the
Lemon test because
satisfaction of the
Lemon
prongs indicated a lack of "preference for
or discrimination against religion."
(E. Bay,
24 C al. 4th at 719)
Recently, the California Supreme Court was asked by the Ninth
Circuit to answer definitively whether and how the No Preference
clause protections exceed the federal standard, but it declined.
(Barnes-Wallace v. City of San Diego
(9th Cir. 2008) 530 F.3d 776,
788;
cert. denied Barnes-Wallace (Mitchell) v. City of San
Diego/(Boy Scouts of America-Desert Pactflc Council), 2009
Cal.
LEXIS 3507) Still, "the California Constitution is a document of
independent force, [and] the rights it guarantees are not necessarily
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coextensive with those protected by the federal Constitution."
(E.
Bay at 718)
"Referring to this clause, the Attorney General's office has
said: 'It would be difficult to imagine a more sweeping statement of
the principle of government impartiality in the field of religion."
(Feminist Women's,
157 C al.A pp.3d at 1086 (quoting 25
O ps.Cal.Atty.Gen. 316, 319 (1955))) U nder the N o P referenc e c lause,
preference is forbidden even when there is no discrimination.
(Fox,
22
Cal. 3d at 796) "We must never forget that the religious freedom
of every person is threatened whenever government associates its
powers with one particular religious tradition. The threat today may
seem small, but the breach in principle is large."
(Id. at 805 (J. Bird,
concurrence)) The intent is to ensure that free exercise of religion is
guaranteed and that the state neither favors nor discriminates
against religion.
(E. Bay,
24 Cal. 4th at 719) "[T]he state constitution
requires greater government neutrality and has broader restrictions
on actual or apparent preference. This reduces the state's ability to
prefer one religion under the guise of accommodation, while
retaining the state's ability to alleviate a burden on all affected
religions equally. (D avid A . C arrillo and S hane G. Smith,
California
Constitutional Law: The Religion Clauses,
45 U .S.F. L. R ev. 689,
690 (2010))
There are strong policy arguments for giving an independent
analysis to the No Preference clause. Against the backdrop of the
California Supreme Court's unresolved stance on the No Preference
clause, Congress has enacted the Religious Land Use and
Institutionalized Persons Act (RLUIPA), which forbids governmental
land regulations from imposing substantial burdens on religious
exercise without a compelling state interest implemented by the least
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restrictive means.9 (42 U.S.C. 2000cc(a)) The Equal Terms
provision of RLUIPA mandates that land use regulations cannot be
implemented in a manner that treats a religious entity "on a less
than equal basis with a secular comparator."
(Centro Familiar
Cristiano Buenas Nuevas v. City of Yuma
(9th C ir. 2011) 651 F .3d
1163, 1173) RL U IP A protects religion from an adverse lack of
neutrality in land-use regulations. The No Preference clause may be
seen as providing protection from a lack of neutrality that is adverse
against secular interests in favor of religion. It is important as the
legal landscape is shaped by a powerful piece of legislation such as
RLUIPA that we maintain the integrity of our constitutional
protections and apply them to situations that call uniquely for their
guidance. In
E. Bay,
Chief Justice Mosk observed that "state law and
state constitutional principles should be our first and sole referent . .
. `[A]s the highest court of this state, we are independently
responsible for safeguarding the rights of our citizens. State courts
are, and should be, the first line of defense for individual liberties in
the federal system." (24 Cal. 4th at 722 (C.J. Mosk, dissent) (quoting
his concurrence in
Sands v. Moron go Unified School Dist.
(1991) 53
Cal. 3d 863, 906))
9
Respondent invoked RLUIPA in its claims that religious projects
are evaluated under a different standard. (AR4755-56, 13603)
Although the County initially asserted that all projects are to be
evaluated equally under the zoning code, it is very possible that the
C ounty eventually capitulated to the c hilling effect of R L U IP A.
(See P atricia E. S alkin and Amy L avine,
The Genesis of RLUIPA and
Federalism: Evaluating the Creation of a Federal Statutory Right
and its Impact on Local Government,
40 U rb. L aw. 195, p.79
(2008)) "Indeed, RLUIPA has had a chilling effect on local
government's ability to exercise the police power through zoning to
ensure that community character is preserved and that the public
health, safety, and welfare is protected."
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The County ignored significant distinctions between the 2004
approved use and the 2014 realities in evaluating whether the
Project's expanded press activities and new storage operation could
qualify as an "accessory" use. In allowing these changes to escape
review by sheltering them under the "accessory" umbrella, due to the
"integral" nature of the press operation to the TNMC religion, the
County demonstrated a strong preference for religion. The printing
facility was never an approved
type
of use, but was rather approved
in 2004 as a single printer facility, determined to be an accessory use
necessarily "related to and subordinate to the primary use." The
County transformed the 2004 printing facility's designation as an
"accessory use" into approval of a massive industrial production and
storage operation as accessory to the religious retreat, due to the
importance of printing to the religion. (AR4081-84)
The County's beneficial zoning interpretations were
inconsistent with the RRD land use category and the General Plan.
The County stated that because the ancillary printing of sacred texts,
"integral to the Ratna Ling Buddhist religious practice," had
previously been approved as an "acceptable" use in the RRD
category, it was consistent with the General Plan to approve 40k sq.
ft. of storage tents, printing facility expansion, increased commercial
activities associated with the printing facility, and increases in
permitted workers and worker housing. (AR46-47) When compared
with other types of uses in the zoning code, however, it is clear that
this use is inappropriate for the RRD category.
(See infra,
Section
V.B)
The County also failed to consider if the dramatic expansion of
the printing operation was still accessory to the retreat function, or if
it had instead become the primary use. To justify its decision, it used
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Petranker/TNMC-provided numbers in defending its accessory use
designation. (AR48-49) This only further demonstrated preference
for Petranker, as County did not conduct its own analysis, but cut-
and-pasted the numbers used in its resolution directly from the
TNMC-provided analysis, which is problematic in its assumptions.
(See supra,
Section III.I.2.(b))
In relying on its designation of the printing facility as an
already-approved "acceptable" type of use, and failing to consider
the expansion of that use in an "accessory" analysis, the County in
effect invented a new zoning category that escapes any critical
review: any religious entity claiming a use as accessory will have that
use permitted, regardless of the size, growth, or nature of the
operation. The preference displayed is obvious when we consider
the effect on the RRD use category should similar uses gain approval,
which will be required under the neutrality principle of the
Establishment clauses and the No Preference clause: with a
proliferation of industrial uses dotted throughout, the nature of the
RRD use category would be subverted completely. This preferential
approval sets a bad precedent for future zoning decisions, a concern
expressed several times by petitioners and acknowledged by County
staff, both in the context of inducing growth via other religious uses
and via secular land uses, particularly wineries, a dominant industry
in rural Sonoma County. (AR4099, 4756, 8995, 12024, 12068) By
allowing for Petranker what cannot be allowed for others, the County
displayed an illegal preference for religion.
3.
he No Aid Clause
The No Aid clause bans not just financial allocations, but any
official involvement, in any form, that has the "direct, immediate,
and substantial" effect of promoting religious purposes.
(E. Bay, 24
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C al. 4th at 721) The C ounty has violated the N o A id clause because it
has permitted a commercial, industrial printing operation to
function in a rural area under the guise it is a "noncommercial"
"accessory" use to the Ratna Ling retreat center, affording exclusive
benefits, both financial and intangible, to Petranker/TNMC.
A bond program that provided loans to educational
institutions did not violate this clause because it did not discriminate
between sectarian and secular entities, and requirements prevented
the funds from being used by a religious school to substantially
further its religious mission w hich wou ld have exc eeded the
permissible "incidental benefit" standard.
(California Statewide
Communities Development Authority v. All Persons Interested etc.
(2007) 40
Cal. 4th 788, 801-04) A statutory exemption from a
newly-enacted landmark designation law did not violate the No Aid
clause, because it did nothing more than leave the properties in the
state they would have been without the new law.
(E. Bay,
24 C al. 4th
at 721) A transfer of fetuses used in a criminal investigation from the
district attorney to the Catholic League for burial violated the No Aid
clause, however, because even aid in intangible forms, such as in
prestige and power, is prohibited.
(Feminist Women's,
157 C al. App.
3d at 1093)
The Project allows significant commercial activity despite an
express prohibition on commercial activity in the conditions of
approval. (AR61) The County in the same document attempts to
justify this rampant commercial activity as allowed under the
previous permit, despite a 2004 permit condition stating that a
commercial printing press was not allowed, and Petranker's 2004
proposal statement that the press facility "does not operate as a
c onventional c ommercial business. (AR 13, 51, 4603) By
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misrepresenting the commercial nature of the Project, the County
has given Petranker an exclusive benefit that cannot be described as
merely "incidental," in violation of the No Aid clause.
Within the Project approval and administrative record there is
ample evidence this printing operation operates as a commercial
activity. The Project itself approved of a dramatic expansion in
number of presses, workers, truck trips, production levels, and
associated storage, manufacture of "sacred objects," and Internet
sales. Evidence in the record suggests that Dharma Publishing
moved their entire operation to Ratna Ling, while simultaneously
operating both an online store and a bookstore in the City of
Berkeley to sell the books and other items produced at Ratna Ling.
(AR6322, 6324, 6747, 7316, 8214, 1079) The grand scale of the
commercial sales was described in multiple complaints to the
County, and is readily verifiable by looking on the Dharma
Publishing website, which offers hundreds of items for sale,
including a trademarked line of cushions. (AR6297, 6905, 7316,
8359-61; MJN(2))
In a previous zoning proposal, Petranker/TNMC suggested
that the entire site be rezoned to "K" zoning, "Recreation and Visitor-
Serving
Commercial
District." (Emphasis added) (AR4756; MJN(3))
Even Code Enforcement recognized the commercial nature of the
printing operation activities in the Project: when it investigated code
violations at the site during the approval process for the Project, it
noted that sales and distribution were a commercial activity that
potentially violated the 2004 permit but that the Project could allow
suc h uses, potentially resolving a code violation. (AR 1082) A lso in
the administrative record was reference to a Tax Court case involving
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the commercial printing activities of Dharma Enterprises, including
TN M C . (AR5682; M JN(4))
Just because an activity is undertaken by a religious entity
does not mean it cannot be described as a commercial practice. In a
First Amendment decision that decided whether revenues from the
sale of religious publications could be taxed despite the use of those
revenues to produce other religious materials to further spread the
gospel, the
Swag gart
case held that a religious organization that
sought to share its religious message should not enjoy rights not
afforded to organizations with secular ideologies, and required the
sales tax.
(Jimmy Swaggart Ministries, supra,
204 C al. Ap p. 3d
1269, 1284) Likewise, the County should not aid Petranker/TNMC
by granting a benefit that is unavailable to other entities, just
because it is a religious entity. No other entity may set up an
industrial printing facility and warehousing operation in the rural
forests of Sonoma County and sell items produced there in a
bookstore and on the Internet. (AR51, 62) This exclusive right
benefits and aids this religion in prestige and power by its
exclusivity, and financially in manufacturing and sales facilitation.
This violates the California Constitution.
B.
he Project is inconsistent with the General Plan and
the zoning code.
1.
eneral Plan and RRD zoning provisions
The General Plan, pp. LU-55-56, contains land use policies for
RRD land. It highlights the need for low densities of residents due to
lack of infrastructure, distance from public services, and poor access.
(AA159-60) RRD policy protects and accommodate local resource
production such as timber, geothermal, aggregate, agricultural and
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fisheries
not
resources imported from outside the area. (AA159;
AR5986 [PRMD])
Along with protecting productive lands and natural habitat,
the RRD policy is also intended to:
protect against intensive development in fire prone
areas
protect against proliferation of growth in areas with
inadequate public services and infrastructure [fire
service and roads]
(AA159)
RRD allows places of worship, lodging, campgrounds, and
similar recreational and visitor serving uses provided that they
"shall" not be inconsistent with the purpose of this c