2014.12.12 opening brief coastal hills rural preservation vs. county of sonoma, case# scv-255694

8/10/2019 2014.12.12 Opening Brief Coastal Hills Rural Preservation vs. County of Sonoma, Case# SCV-255694

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MICHAEL R. LOZEAU (Cal. Bar No. 142893)RICHARD T. DRURY (Cal. Bar No. 163559)REBECCA L. DAVIS (Cal. Bar. No. 271662)LOZEAU | DRURY LLP410 12th Street, Suite 250

Oakland, CA 94607Tel: (510) 836-4200Fax: (510) 836-4205E-mail: [email protected]

[email protected]

Attorneys for Petitioners and Plaintiffs

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SONOMA

COASTAL HILLS RURAL PRESERVATION,an unincorporated organization,

Petitioner and Plaintiff,

vs.

COUNTY OF SONOMA, a political subdivisionof the State of California, SONOMA COUNTYBOARD OF SUPERVISORS, governing body ofthe County of Sonoma; SONOMA COUNTY

PERMIT AND RESOURCE MANAGEMENTDEPARTMENT, a public entity; and DOES 1through 10, inclusive,

Respondents and Defendants;

Case No.: SCV-255694

PETITIONERS OPENING BRIEF IN

SUPPORT OF PETITION FOR WRIT

OF MANDATE

Hearing Date: March 27, 2015Time: 9:00 a.m.Department 16

Honorable Elliot Lee Daum

Action filed: July 24, 2014

JACK PETRANKER, an individual, the HeadLama of the Tibetan Nyingmapa MeditationCenter, a California non-profit corporation; andROES 1 through 10, inclusive,

Real Party in Interest and Defendants.

PETITIONERS OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE


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TABLE OF CONTENTS

I. INTRODUCTION ......................................................................................................................... 1

II. FACTUAL BACKGROUND ........................................................................................................ 3

A. The 2004 Use Permit ......................................................................................................... 3

B. Piecemeal Expansion of Ratna Ling .................................................................................. 4

C. The Printing Facility is not Ancillary to the Retreat Center,Dwarfing the Retreat Components Both in Terms of Number of Personnel, Facilities andActivity at the Site, and Being the Raison Dtre forRatna Lings Presence There ............................................................................................. 5

D. The Project ......................................................................................................................... 6

III. LEGAL BACKGROUND ............................................................................................................. 7

A. General Plan and Land Use................................................................................................ 7

B. California Environmental Quality Act ............................................................................... 8

1. Levels of review under CEQA ..................................................................................... 8

i. Where a new project is proposed, the fair argument standard applies todetermine the need for an EIR ............................................................................ 9

ii. Project previously reviewed under CEQA .......................................................... 9

2. Project description, piecemealing, and baseline ........................................................ 10

IV. PROCEDURAL BACKGROUND .............................................................................................. 11

V. LEGAL STANDARD .................................................................................................................. 12

A. General Plan Consistency ................................................................................................ 12

B. California Environmental Quality Act ............................................................................. 13

VI. ARGUMENT ............................................................................................................................... 13

A. The Ratna Ling Project is inconsistent with the General Plan and Zoning Code ............ 13

1. The Project conflicts with mandatory policies of the Land Use Element of theSonoma County General Plan .................................................................................... 14

2. The Project is inconsistent with the Sonoma County Zoning Code .......................... 15

3. Ratna Lings printing operations are not an accessory use. ................................... 17

B.

The County failed to comply with CEQA ....................................................................... 20

1. This Project is a new project because it has never previously been reviewed underCEQA ......................................................................................................................... 20

2. An EIR is required because substantial evidence in the record supports a fairargument that the Project has significant public safety and fire impacts ................... 20

i. Substantial evidence in the record supports a fair argument that the Project willhave significant public safety and fire impacts ................................................. 21

iPETITIONERS OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE


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1) Limited infrastructure in RRD zones ....................................................... 21

2) The 2007 Building Code .......................................................................... 21

ii. An EIR is required because the Project will conflict with the General Plan andZoning Code...................................................................................................... 24

3.

The County relies on an improper baseline ............................................................... 254. Even under section 21166 the SMND is invalid because the Countys conclusion

that the Project will result in no significant public safety and fire impacts is notsupported by substantial evidence ............................................................................. 26

5. Even under section 21166 the SMND is invalid because it is based on the improperbaseline, and therefore does not analyze the consistency of the warehouse tentswith the RRD land use designation and zoning requirements ................................... 27

6. If the Project is considered a modification rather than a new project, then theCounty improperly piecemealed the larger Ratna Ling Project ................................. 28

V. CONCLUSION ............................................................................................................................... 30

iiPETITIONERS OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE


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TABLE OF AUTHORITIES

CASES

Abbatti v. Imperial Irrig. Dist.(2012) 205 Cal.App.4th 650 ................................................................... 10

Apartment Assn of Greater Los Angeles v. City of Los Angeles(2001) 90 Cal.App.4th 1162 .. 11, 25, 26

Arviv Enterprises, Inc. v. So. Valley Area Planning Commn(2002) 101 Cal.App.4th 1333 ........... 28, 29

Assn for a Cleaner Envt v. Yosemite Cmty. College Dist. (2004) 116 Cal.App.4th 629 ...................... 10

Bakersfield Citizens for Local Control v. City of Bakersfield(2004) 124 Cal.App.4th 1184 ................... 8

Bozung v. LAFCO (1975) 13 Cal.3d 263 ................................................................................................. 10

Chamberlin v. City of Palo Alto, (1986) 186 Cal.App.3d 181..................................................... 11, 25, 26

Citizens Assn for Sensible Development of Bishop Area v. County of Inyo

(1985) 172 Cal.App.3d 151 ................................................................................................................ 28

Citizens for Non-Toxic Pest Control v. Dept. Food & Agr. (1986) 187 Cal.App.3d 1575 ...................... 27

Citizens for Responsible Equitable Environmental Development v. City of Chula Vista

(2011) 197 Cal.App.4th 327 ................................................................................................................ 9

Citizens of Goleta Valley v. Bd. of Supervisors(1990) 52 Cal.3d 553 ...................................................... 7

City of Irvine v. County of Orange(2013) 221 Cal.App.4th 846 ............................................................ 13

City of Long Beach v. Los Angeles Unif. School Dist. (2009) 176 Cal. App. 4th 889 ............................ 24

City of Santa Ana v. City of Garden Grove(1979) 100 Cal.App.3d 521 .................................................. 7

City of Santee v. County of San Diego(1989) 214 Cal.App.3d 1438 ................................................ 10, 28

Cmtys. for a Better Envt v. Calif. Res. Agency(2002) 103 Cal.App.4th 98 ....................................... 8, 11

Cmtys. for a Better Envt v. So. Coast Air Quality Mgmt. Dist.(2010) 48 Cal.4th 310 .................... 11, 25

Corona-Norco Unified School Dist.v. City of Corona(1993) 17 Cal.App.4th 985 .................................. 7

County of Inyo v. City of Los Angeles(1977) 71 Cal.App.3d 185 ............................................... 10, 11, 25

County Sanitation Dist. No. 2 v. County of Kern(2005) 127 Cal.App.4th 1544..................................... 20

Endangered Habitats League v. County of Orange(2005)131 Cal.App.4th 777................................... 24

iiiPETITIONERS OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE


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CASES (contd)

Fairview Neighbors v. County of Ventura(1999) 70 Cal.App.4th 238 ............................................. 16, 25

Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors of El Dorado County (1998) 62 Cal.App.4th 1334 ................................................................................................................ 7

Friends of Davis v. City of Davis(2000) 83 Cal.App.4th 1004................................................................. 9

Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859 ....................... 24

Gentry v. City of Murrieta(1995) 36 Cal.App.4th 1359 ......................................................................... 24

Katzeff v. Dept. of Forestry and Fire Protection(2010) 181 Cal.App.4th 601 .......................................... 28

Kings Co v. Hanford(1990) 221 CA3d 692 ............................................................................................ 27

Laurel Heights Improvements Assn v. Regents of Univ. of Cal.(1988) 47 Cal.3d 376 ........................... 8

Lesher Communications, Inc. v. City of Walnut Creek(1990) 52 Cal.3d 531........................................... 7

Lincoln Place Tenants Assn v. City of Los Angeles(2005) 130 Cal.App.4th 1491 ............................... 10

Markey v. Danville Warehouse & Lbr., Inc.(1953) 119 Cal.App.2d 1 ................................................... 16

Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322 ........................................................................ 9

Napa Citizens for Honest Government v. Napa County Bd. of Supervisors

(2001) 91 Cal.App.4th 342 ................................................................................................................ 12

Neighborhood Action Group v. County of Calaveras(1984) 156 Cal.App.3d 1176................................. 7

No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68 ......................................................................... 20

Oro Fino Gold Mining Corp. v. County of El Dorado(1990) 225 Cal.App.3d 872 ............................... 24

Pocket Protectors v. City of Sacramento(2004) 124 Cal.App.4th 903 ........................................... 8, 9, 22

POET, LLC v. State Air Resources Bd. (2013) 218 Cal.App.4th 681 ..................................................... 13

Sierra Club v. County of Sonoma(1992) 6 Cal.App.4th 1307 ........................................................ 2, 9, 10

Save Our Neighborhoodv. Lishman(2006) 140 Cal.App.4th 1299 ........................................................ 10

Save Our Peninsula Committee v. County of Monterey(2001) 87 Cal.App.4th 99 ................................ 11

ivPETITIONERS OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE


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CASES (contd)

Save Tara v. City of West Hollywood(2008) 45 Cal.4th 116 .................................................................. 13

Sundstrom v. County of Mendocino(1974) 202 Cal.App.3d 296 .................................................... 8, 9, 28

Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412 ........................................................................................................................ 13

Wollmer v. City of Berkeley(2009) 179 Cal.App.4th 933 ....................................................................... 12

STATUTES

Code of Civil Procedure 1094.5(b) ........................................................................................................ 12

2007 California Building Code701A.3.1 ................................................................................................................................................. 23701A.3 .................................................................................................................................................... 23312.1....................................................................................................................................................... 23311.2....................................................................................................................................................... 23

Public Resources Code, California Environmental Quality Act 21000 et seq............................................................................................................................................ 1 21002.1(a) ............................................................................................................................................... 8 21080(c)(1) ............................................................................................................................................. 8 21080(c)(2) ............................................................................................................................................. 8 21080(e)(1) ............................................................................................................................................. 9 21100(a) .................................................................................................................................................. 8 21151................................................................................................................................................. 9, 20 21151(a) .................................................................................................................................................. 8 21166................................................................................................................................... 10, 20, 25, 28 21168.5.................................................................................................................................................. 13

REGULATIONS

CEQA Guidelines, California Code of Regulations, Title 14 15064(a)(1) ............................................................................................................................................. 8 15064(f)(1) .............................................................................................................................................. 8 15064(f)(2) .............................................................................................................................................. 8 15064(f)(3) .............................................................................................................................................. 8 15125(d) ................................................................................................................................................ 24 15162........................................................................................................................................... 9, 10, 25 15162(b) ................................................................................................................................................ 10 15367....................................................................................................................................................... 8 15384(a) ................................................................................................................................................ 13

vPETITIONERS OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE


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Appendix G ........................................................................................................................................... 24

MISCELLANEOUS

Sonoma County General Plan 2020 ..................................................................................... 7, 8, 14, 15, 21

Sonoma County Zoning Code 26-10-005 .............................................................................................................................................. 15 26-10-010 .............................................................................................................................................. 16 26-10-020 .............................................................................................................................................. 16 26-02-140 .............................................................................................................................................. 17

viPETITIONERS OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE


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I. INTRODUCTION

Petitioners bring this action to challenge the June 24, 2014 decision of the Sonoma County Board

of Supervisors (the County) approving Real Parties in Interest Jack Petranker and the Head Lama of

the Tibetan Nyingmapa Meditation Centers (hereinafter Ratna Ling) application for a Master Use

Permit (PLP08-0021) for the Ratna Ling Buddhist Retreat Center and an accessory 60,000 square-foot

printing operation, adopting findings under the California Environmental Quality Act, Public Resources

Code (PRC) section 21000 et seq. (CEQA)1that all impacts associated with the project will be

mitigated to less than significant with the adoption of mitigation measures and adopting a subsequent

mitigated negative declaration (SMND); and approving Resolution No. 14-0283 approving the Master

Use Permit (collectively, the Project).

Shortly after purchasing the land in 2004, Ratna Ling began operating a Buddhist Retreat Center

and an ancillary printing facility in Cazadero, California (Ratna Ling Site). When the printing

facility began operating, it consisted of a single press, and all printing and storage took place in a single

18,750 square foot building, which was limited to a maximum occupancy of 27 people. (AR6-7;

AR4603.) The County permitted the use based on the limited scope of the printing compared to the

primary use of the site as a retreat center. (AR7; AR5985.) The County found that the modest printing

use was ancillary to the primary use of the site as a retreat center, but noted that it was about the limit

of what is reasonable for an accessory use. (AR6742.)

The Project authorizes a tripling in size of the permanent printing operations allowed in the 2004Use Permit, without mitigating the impacts of locating an industrial scale printing plant and associated

warehouses in a rural area of Sonoma County. Specifically, the Project will triple the amount of

permanent building space used for the printing operations from the original 18,750 square feet to more

than 60,000 square feet, increase the maximum occupancy of the press building from 27 to 80 workers,

remove the annual book production limit of 100,000 books, and allow daily trips by a 24-foot truck

related to book production and distribution. (AR36-37.)

Petitioners do not object to the religious nature of the site, and are fully supportive of Ratna Ling

as a Buddhist retreat center. Petitioners object to the location of an industrial printing operation in a

rural area of Sonoma County that lacks the infrastructure to manage industrial fires and potentially

hazardous emergencies associated with industrial operations.

1All further statutory references shall be to the PRC unless otherwise noted.

1PETITIONERS OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE


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The most expert agency relevant to fire risks at the Project site the Timber Cove Fire

Protection District submitted comments to the County indicating that the Fire District is unable to

handle industrial fires and hazards. Through written and oral comments, the Fire Protection District

warned the County of the significant unmitigated impacts of the Project: [I]f the operations allowed by

proposed use permit are approved by the Board, the District cannot adequately protect the people,

property, and natural resources within its district from the risk of industrial fire. (AR12702.) The

District does not have the equipment or training to fight industrial fires and hazards because until

Ratna Lings operations there were no significant industrial operations within the District. (Id.)

The County failed to proceed in a manner required by law by approving the Project despite its

inconsistency with the Sonoma County General Plan and Zoning Ordinance. The County acted ultra

viresby approving the Project because an industrial use is not allowed in a Rural Resources and

Development zone, and because the printing operations at Ratna Ling are no longer ancillary to the

retreat center. Instead, the retreat center is ancillary to the printing facility, the main focus of the facility

now being to print and store books, albeit religious tracts largely distributed to Buddhist communities in

Tibet. (AR5819.)

Additionally, the County failed to proceed in a manner required by law by violating CEQA in a

number of ways. First, since this is a new project that has never been analyzed previously under CEQA,

it was inappropriate for the county to prepare a subsequent MND under section 21166 of CEQA. A

subsequent MND may only be used for a later project that isessentially the same project as was

analyzed in a prior MND, and where only minor changes are proposed. (Sierra Club v. County of

Sonoma(1992) 6 Cal.App.4th 1307, 1320.) The Project is not essentially the same project as the

project that was evaluated in the prior MNDs because those documents do not evaluate any of the

39,270 square-feet of warehouse structures or expanded printing operations allowed by the new Project.

Rather than an MND, the County was required to prepare an EIR because a fair argument can be made

based on substantial evidence in the record that the Project will have significant public service, fire

hazard, and land use and planning impacts.

Second, even if the Project could be construed as essentially the same project as those

previously analyzed in 2004 and 2008, and therefore analyzed under section 21166 of CEQA, the

SMND must still be set aside. The County abused its discretion by certifying the SMND and approving

the Project even under the more deferential substantial evidence standard because the Countys

conclusion that the Project will not result in significant public service, fire hazard, and land use and



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planning impacts is not supported by substantial evidence. Furthermore, the County violated CEQA by

improperly piecemealing the Ratna Ling Project into three CEQA documents and over one hundred

permits, taking advantage of environmental exceptions and lesser CEQA review for smaller projects.

The County also violated CEQA by including 39,270 square feet of warehouse tents in the baseline,

rather than including them as part of the Project, and in doing so masking the true impacts of the Project.

In approving the Project, the County failed to proceed in a manner required by law. An EIR is

required to analyze the Projects significant impacts and develop appropriate mitigation measures.

Accordingly, the Countys approval of the Project, associated approval of the SMND, and adoption of

CEQA findings must be set aside, and the County should be ordered to prepare an EIR.

II. FACTUAL BACKGROUND.

A. The 2004 Use Permit.

The Ratna Ling Site is located at 35755 and 36000 Hauser Bridge Road in Cazadero, on

approximately 120 acres of land in the rural coastal hills of Sonoma County on land zoned for Resources

and Rural Development (RRD). (AR109; AR994.) In 2004, Ratna Ling purchased and remodeled a

guest ranch known as Timber Hill Ranch. (AR4596.) Prior to purchasing the property, Ratna Ling first

applied for a use permit on March 8, 2004. (AR4596.) The Sonoma County Permit and Resource

Management Department (PRMD) either rejected this proposal or it was withdrawn. Ratna Ling

purchased the property, and on April 15, 2004, submitted a new use permit application for a printing

facility ancillary to a newly created religious retreat center, Ratna Ling. (AR4596.)On September 9, 2004, the Sonoma County Board of Zoning Adjustments (BZA) approved a

Use Permit (UPE04-0032) (2004 Use Permit) and adopted a mitigated negative declaration (2004

MND) for the Buddhist retreat center with an accessory printing facility. (AR37.) The BZA approved

the use permit in 2004,finding that the small printing operation was ancillary to the primary use of the

property as a Buddhist retreat center. (AR13.) The 2004 Use Permit allowed Ratna Ling to construct a

new 18,750 square foot printing facility in which to operate a press, a collator, a binder, and a cutter.

(AR5985.) The 2004 Use Permit limited the maximum number of workers allowed in the press building

to 27 (AR7), and production of texts was estimated at 100,000 books per year. (AR4612; AR5985.)

The printing facility was considered a satellite location for the much larger Dharma Press, which had

been located in an industrial area in Berkeley, California for 30 years. (AR7468) According to its

website, Dharma Publishing is the largest Tibetan Buddhist press in the world. (AR5812.)

Once the 2004 Use Permit was approved, the first construction that took place was the 18,750



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square foot printing building, which has been in operation since August 2005. (AR2156; AR9509.) The

retreat center did not begin its operations until February 21, 2006, when eight retreat cabins were

constructed. (AR9509.)

B. Piecemeal Expansion of Ratna Ling.

For the past ten years, Ratna Ling has dramatically expanded their printing operations well

beyond the equipment described in the 2004 permit and Ratna Lings application, obtaining a series of

permits that were never reviewed under CEQA.2 After the Ratna Ling printing facility was built and

began operating in 2005, Ratna Ling began moving additional equipment into the printing facility from

Dharma Presss industrial space in Berkeley.

Likely in anticipation of the transition of Dharma Publishing from Berkeley to Ratna Ling, in

2006, Ratna Ling proposed a 95,000 square foot building to be used as a sacred text treasury at the

site. (AR4755.) PRMD rejected the proposal as inappropriate in an RRD zone, noting that Ratna Lings

use permit allows the printing press and 18,000 sf of storage space, which we consider about the limit

of what is reasonable for an accessory use. (AR6742.)

In 2006, Ratna Ling moved the entire Dharma Publishing operation from Berkeley to Ratna

Ling, including five additional presses. (AR7468; AR8030 AR12328.) Since 2006, all of Dharma

Publishing printing has occurred at Ratna Ling. (AR7468; AR8030.) With all of Dharma Press printing

taking place at Ratna Ling, and PRMDs rejection of the 95,000 square foot sacred text treasury, Ratna

Ling soon ran out of room to store printed materials. To manage, on February 26, 2008, Ratna Lingfiled an application requesting a general plan amendment, special area policy, and use permit to

construct two large underground warehouse caves totaling 90,000 square feet to store the texts that were

being printed on site, and to add an exhibition hall with an 800 person capacity. (AR37.)

While waiting for approval of its cave and exhibition hall plan, in 2008, the PRMD granted

Ratna Lings request for zoning permits allowing 39,270 square feet oftemporarybook storage tent

warehouses to be erected at Ratna Ling. (AR37-38.) On March 26, 2008, PRMD approved a zoning

permit (ZPE08-0074) to allow Ratna Ling to construct two temporary storage structures of 2,870 and

2Only 20 days after approval of the 2004 use permit, Ratna Ling wrote a letter to Dwayne Starnes ofPRMD (September 30, 2004) informing him they were increasing the main electrical service to the pressbuilding from 800 to 1,000 amps to allow for future growth. (AR5871.) Ratna Ling also requestedan exemption from a ground fault system requirement because this press will print 20 hour a day for 10months each year despite only being permitted at 15 hours of printing each day. (AR5871.)



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maximum of 80, and will increase the maximum number of people allowed at Ratna Ling from 67 to

122. (AR36-37.) Under these conditions, 65 percent of people at the Ratna Ling site could be working

in the press building at any one time.

The Ratna Ling site consists of 81,194 square feet of buildings and facilities. (AR60-61.) Of

that 81,194 square feet, 60,504 square feet are dedicated to the printing facility and the warehouse tents.

(AR36.) The printing operation therefore occupies 74 percent of the developed footprint of the Ratna

Ling site compared to 26 percent occupied by other facilities. This does not take into account the

additional buildings that are used to house the printing volunteers, or the dining facilities and other

components of the retreat center that also support the printing operation by feeding workers and

providing office space to Dharma Publishing.

In 2012, there were 1,381 guests who stayed at the Ratna Ling retreat facility. (AR4806.) Ratna

Ling calculated that in 2012, Ratna Ling had a total of 5,301 retreat days, where one person per day

equals a retreat day. (Id.) Applying the same analysis to printing operations, 9,855 print days occur at

the site based on a maximum occupancy of the printing building of 27 persons (printing 365 days per

year x 27 persons = 9,855 print days). Ratna Ling now seeks to increase the maximum number of

workers in the print building to 80 for June and July and 60 for August through May, which would result

in 18,240 printing days per year, far exceeding the retreats activity.

D. The Project.

Currently at issue is a Master Use Permit (PLP08-0021) for the Ratna Ling Buddhist Monasteryand accessory printing operations, significantly expanding the retreat center and printing operations at

Ratna Ling. The Project includes the following features, not included in the 2004 MND:

An increase in the number of printing presses allowed from 1 to 6; Elimination of the current limitation on printing of 100,000 books per year; An increase of the maximum occupancy of the press building from 27 to 80 persons (AR111); Permanent book storage in four tent structures with a combined 39,270 sq. ft. of space. The

Project will chage the status of these structures from temporary to permanent (AR110); Production of non-textual sacred objects in addition to printing texts (AR110); Book production traffic of one 24-foot long truck round-trip per day, Mon. through Sat.

(AR111); An increase to the maximum occupancy of the Ratna Ling Site from 67 to 122 persons (AR110); A seasonal campground (May through October) with eight tent structures to be built on wooden

platforms with electrical hook-ups, with a maximum occupancy of 27 persons (AR111); Construction of a new 3,000 square foot five-bedroom residential dwelling with a maximum

occupancy of 12 persons (AR110);



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Construction of four new residential storage buildings totaling 4,080 square feet to service theresidential cabins (AR111).

The Project also includes the following features that were analyzed in the 2004 MND, but were

not built, and are therefore not existing conditions on the ground:

Construction of five new cottages, each approximately 1,010 square feet, for a total of 5,050square feet in new cottage construction, and expansion and conversion of an existing storagebuilding into another cottage (AR111);

Completion of a partially constructed Senior Center, which is approximately 5,900 square feet.The foundation, driveway, parking and major support structures have already been constructed(AR110).

In effect, the Project will double the size of the industrial printing operation at Ratna Ling, and

will legalize Ratna Lings previous illegal operations.

III. LEGAL BACKGROUND.

A. General Plan and Land Use.

Under California law, a general plan serves as a charter for future development (Lesher

Communications, Inc. v. City of Walnut Creek(1990) 52 Cal.3d 531, 54), and embodies fundamental

land use decisions that guide the future growth and development of cities and counties. (City of Santa

Ana v. City of Garden Grove(1979) 100 Cal.App.3d 521, 532.) The general plan has been aptly

described as the constitution for all future developments within a city or county. (Families Unafraid

to Uphold Rural El Dorado County (FUTURE) v. Bd. of Supervisors of El Dorado County (1998) 62

Cal.App.4th 1334, 1335.) The propriety of virtually any local decision affecting land use anddevelopment depends upon consistency with the applicable general plan and its elements. (Citizens of

Goleta Valley v. Bd. of Supervisors(1990) 52 Cal.3d 553, 570.) The consistency doctrine has been

described as the linchpin of Californias land use and development laws; it is the principal which

infuses the concept of planned growth with the force of law. (Corona-Norco Unified School Dist.v.

City of Corona(1993) 17 Cal.App.4th 985, 994.) An agency acts ultra vireswhen it approves a use

permit that is inconsistent with the General Plan. (Neighborhood Action Group v. County of Calaveras

(1984) 156 Cal.App.3d 1176, 1184.)

The Ratna Ling Project is located on land designated as Resources and Rural Development

(RRD) in the Sonoma County General Plan 2020. (AR46-47.) The RRD land use designation is

meant to protect lands for timber, geothermal and mineral resource production and for natural resource

conservation. (Sonoma County General Plan 2020 (GP), p. LU-55 (a copy of Sonoma Countys

General Plan 2020 Land Use Element is attached as Exhibit A to the Declaration of Rebecca Davis in



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Support of Petitioners Request for Judicial Notice).) In order to protect natural resources, the RRD

category only allows residences at very low densities because within RRD areas, there is a lack of

infrastructure, greater distance from public services, poor access, conflicts with resource conservation

and production, and significant physical constraints and hazards. (GP, p. LU-55.)

B. California Environmental Quality Act.

The foremost principle in interpreting CEQA is that the Legislature intended the act to be read

so as to afford the fullest possible protection to the environment within the reasonable scope of the

statutory language. (Cmtys. for a Better Envt v. Calif. Res. Agency(2002) 103 Cal.App.4th 98, 109.)

CEQA requires that a lead agency prepare and certify an EIR for any discretionary project that may have

a significant effect on the environment. (21002.1(a), 21100(a), 21151(a); 14 Cal. Code Reg. (CCR)

15064(a)(1), (f)(1), 15367.)

The EIR is the very heart of CEQA. (Pocket Protectors v. City of Sacramento(2004) 124

Cal.App.4th 903, 926-27; Sundstrom v. County of Mendocino(1974) 202 Cal.App.3d 296, 304.) The

EIR is an environmental alarm bell whose purpose is to alert the public and its responsible officials to

environmental changes before they have reached the ecological points of no return. (Bakersfield

Citizens for Local Control v. City of Bakersfield(2004) 124 Cal.App.4th 1184, 1220.) The EIR also

functions as a document of accountability, intended to demonstrate to an apprehensive citizenry that

the agency has, in fact, analyzed and considered the ecological implications of its action. (Laurel

Heights Improvements Assn v. Regents of Univ. of Cal.(1988) 47 Cal.3d 376, 392.) The EIR process

protects not only the environment but also informed self-government. (Pocket Protectors, 124

Cal.App.4th at 927.)

1. Levels of review under CEQA

When an agency considers the environmental effects of a proposed project, CEQA provides three

options. The agency must prepare and certify the completion of an EIR if the project mayhave a

significant effect on the environment. (21151(a) [emphasis added].) If the agency determines that the

project will not have a significant effect on the environment, it prepares a negative declaration.

(21080(c)(1); 14 CCR 15064(f)(3).) Finally, if the project has potentially significant environmental

effects, but those effects will be reduced to less than significant with the imposition of mitigation

measures that the project proponent has agreed to undertake, then CEQA allows the agency to prepare a

mitigated negative declaration. ( 21080(c)(2); 14 CCR 15064(f)(2).)

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i. Where a new project is proposed, the fair argument standard applies

to determine the need for an EIR.

When a new project is reviewed, an agencys 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, 6 Cal.App.4th at 1316.) The fair argument test is derived from section

21151, which requires an EIR on any project which may have a significant effect on the environment.

(6 Cal.App.4th at 1316-1317.) That section mandates preparation of an EIR in the first instance

whenever it can be fairly argued on the basis of substantial evidence that the project may have

significant environmental impact. (Id.) If there is substantial evidence of such impact, contrary

evidence is not adequate to support a decision to dispense with an EIR. (Id.) Section 21151 creates a

low threshold requirement for initial preparation of an EIR and reflects a preference for resolving doubts

in favor of environmental review when the question is whether any such review is warranted. (Id

.)For example, 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.)

Substantial evidence, for purposes of the fair argument standard, includes fact, a reasonable

assumption predicated upon fact, or expert opinionsupported by fact. (21080(e)(1) (emphasis

added); Citizens for Responsible Equitable Environmental Development v. City of Chula Vista

(CREED)(2011) 197 Cal.App.4th 327, 331.) In the context of reviewing a negative declaration,

neither the lead agency nor a court may weigh conflicting substantial evidence to determine whether

an EIR must be prepared in the first instance. (Id.) Where such substantial evidence is presented,

evidence to the contrary is not sufficient to support a decision to dispense with preparation of an EIR

and adopt a negative declaration, because it could be fairly argued that the project might have a

significant environmental impact. (Sundstrom, 202 Cal.App.3d at 310 (citation omitted).)

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,124 Cal.App.4th

at 927.) In reviewing a decision to prepare a negative declaration rather than an EIR, courts do not

defer to the agencys determination. (Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 332;Sierra Club v. County of Sonoma, 6 Cal.App.4th at 1318.)

ii. Project previously reviewed under CEQA.

After a project has been subjected to environmental review and an EIR or MND has been

certified, an agency may only prepare a supplemental mitigated negative declaration if none of the

conditions triggering preparation of a subsequent EIR have occurred. (14 CCR 15162.) By contrast, a



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subsequent or supplemental EIR is required to be prepared and a subsequent MND or addendum is

inadequate in any of the following instances: (a) Substantial changes are proposed in the project which

will require major revisions of the environmental impact report; (b) Substantial changes occur with

respect to the circumstances under which the project is being undertaken which will require major

revisions in the environmental impact report; (c) New information, which was not known and could not

have been known at the time the environmental impact report was certified as complete, becomes

available. (21166; 14 CCR 15162.) A subsequent negative declaration is appropriate only if none of

the statutory triggers for the preparation of a subsequent or supplemental EIR exists. (14 CCR

15162(b).) A subsequent MND will be upheld only if supported by substantial evidence. (Abbatti v.

Imperial Irrig. Dist.(2012) 205 Cal.App.4th 650, 675.)

A subsequent MND may only be used for a later project that isessentially the same project

as was analyzed in the prior MND, and minor changes are proposed. (Sierra Club, 6 Cal.App.4th at

1320.) Whether a project is new or a change to an existing project is a question of law, that the court

reviews de novo. (Save Our Neighborhoodv. Lishman(2006) 140 Cal.App.4th 1299, 1297;Lincoln

Place Tenants Assn v. City of Los Angeles(2005) 130 Cal.App.4th 1491, 1503; Assn for a Cleaner

Envt v. Yosemite Cmty. College Dist. (2004) 116 Cal.App.4th 629, 637.)

3. Project description, piecemealing, and baseline.

The CEQA document must accurately describe the proposed project. (14 CCR 15071(a).) An

accurate, stable and finite project description is thesine qua non

of an informative and legally sufficient[CEQA document]. (County of Inyo v. City of Los Angeles(1977) 71 Cal.App.3d 185, 193.) Thus,

CEQA mandates that environmental considerations do not become submerged by chopping a large

project into many little ones each with a minimal potential impact on the environment which

cumulatively may have disastrous consequences. (Bozung v. LAFCO (1975) 13 Cal.3d 263, 283-84

[superseded by statute on other grounds]; City of Santee v. County of San Diego(1989) 214 Cal.App.3d

1438, 1452.)

Every CEQA document must start from an articulated baseline. The CEQA baseline is the

set of environmental conditions against which to compare a projects anticipated impacts. A lead

agencys environmental review under CEQA must include a description of the physical environmental

conditions in the vicinity of the project, as they exist at the time [environmental analysis] is commenced,

from both a local and regional perspective. This environmental setting will normally constitute the

baseline physical conditions by which a Lead Agency determines whether an impact is significant. (14



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CCR 15125(a); Cmtys. for a Better Envt v. So. Coast Air Quality Mgmt. Dist.(CBE v. SCAQMD)

(2010) 48 Cal.4th 310, 320 n.5 (14 CCR 15125(a) applies to negative declarations and initial studies);

see also,Save Our Peninsula Committee v. County of Monterey(2001) 87 Cal.App.4th 99, 124-125.)

The baseline does not include the project. By incorporating portions of the proposed project into the

baseline, the agency in effect grants a unilateral exemption from CEQA for that activity. (See, e.g.

County of Inyo,71 Cal.App.3d at 195-97.) A temporary project cannot form the baseline for a similar

but permanent project. (Apartment Assn of Greater Los Angeles v. City of Los Angeles(2001) 90

Cal.App.4th 1162, 1169; Chamberlin v. City of Palo Alto, (1986) 186 Cal.App.3d 181, 187.)

IV. PROCEDURAL BACKGROUND.

The Sonoma County Board of Zoning Adjustment (BZA) adopted the 2004 MND and

approved the 2004 Use Permit on September 9, 2004. (AR37.) The PRMD Director approved a minor

modification of the 2004 Use Permit in August 2007 to allow an expansion of the printing facility from

18,750 to 21,234 square feet. (AR37; AR6694; AR10635.)

On August 1, 2007, PRMD approved Zoning Permit ZPE07-0164 allowing Ratna Ling to

construct a residential care facility for up to six people. (AR37.)

Also in August 2007, Ratna Ling applied for Use Permit UPE07-0089 to construct a 20 acre-foot

water reservoir and a modification of the 2004 Use Permit to increase the size of the wellness center

from 2,500 to 9,500 sq. ft. and to change its location. (AR4576; AR4601; AR5376.) PRMD approved a

mitigated negative declaration (the 2008 MND) for UPE07-0089 on August 22, 2008. (AR38.)On February 26, 2008, Ratna Ling filed Application PLP08-0021 requesting a general plan

amendment, special area policy, and a use permit to construct two large underground caves for text

storage, and an exhibition hall. (AR37.) On February 20, 2009, Ratna Ling requested that PRMD hold

off on any further review of PLP08-0021, and .on March 15, 2011, Ratna Ling submitted a revised

application for PLP08-0021 and a revised proposal statement for a master use permit (2011 Project).

(AR38.)

On March 26, 2008, PRMD approved Zoning Permit ZPE08-074 to allow construction of two

temporary storage structures of 2,870 and 6,000 square feet, to store texts. (AR37-38.) PRMD then

revised its approval of ZPE08-074 to allow two additional temporary storage structures, this time of

14,400 and 16,000 square feet, on April 21, 2008. (AR38.)

On February 14, 2012, PRMD released a mitigated negative declaration for the 2011 Project

(2012 MND). (Id.) On April 5, 2012 and June 7, 2012, the Board of Zoning Adjustment (BZA)



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conducted public hearings on the 2012 MND and the 2011 Project. (Id.)

Petitioners and other member of the public submitted oral and written comments. (AR3800-

3874; AR3950-3953; AR3964-3978.) On June 7, 2012, the BZA adopted the 2012 MND and approved

the 2011 Project. (AR38.) Petitioners timely appealed the BZAs decision (Petitioners Appeal).

(AR39.)

Prior to a hearing date being set for Petitioners Appeal, on March 26, 2013, Ratna Ling again

submitted an updated proposal application for PLP08-0021. (AR39.) On February 28, 2014, PRMD

released the subsequent mitigated negative declaration at issue in this action. (AR39.) According to the

PRMD, the SMND supersedes the 2012 MND. (AR39.)

The Sonoma County Board of Supervisors held a hearing on Petitioners Appeal and the SMND

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. (AR50.)

Petitioners, members of the public, and other state and local agencies brought the deficiencies

raised herein to the Countys attention during the administrative proceedings for the Project, submitting

extensive written comments (AR7175-7245; AR8428-8615; AR8622-8651; AR8654-8818; AR8829-

9207; AR9291-9297), and June 24, 2014 (AR12051-12063; AR12233-12212283; AR12385-12537) and

appearing at various hearings held by the County. (SeeAR3800-74; AR3964-78; AR4112-89; 4366-

4421.)

V. LEGAL STANDARD.

A. General Plan Consistency.

A determination that a project is consistent with a general plan is subject to an abuse of

discretion standard of review, and should be overturned if findings are not supported by substantial

evidence. (FUTURE,62 Cal.App.4th at 1334;Napa Citizens for Honest Government v. Napa County

Bd. of Supervisors (2001) 91 Cal.App.4th 342, 357.) 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. (CCP 1094.5(b);Napa Citizens, 91 Cal.App.4th at

356-57.) [A] governing bodys conclusion that a particular project is consistent with the relevant

general plan carries a strong presumption of regularity that can be overcome only by a showing of abuse

of discretion. (Wollmer v. City of Berkeley(2009) 179 Cal.App.4th 933, 940.) The Court may neither

substitute our view for that of the city council, nor reweigh conflicting evidence presented to that body.

(Id.)



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B. California Environmental Quality Act.

The court reviews the Countys compliance with CEQA by evaluating whether there was a

prejudicial abuse of discretion either by: (1) failing to proceed in the manner required by law, or (2)

reaching a decision that is not supported by substantial evidence. (21168.5.) Under CEQA,

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. (14 CCR 15384(a).) A prejudicial abuse of discretion occurs if the failure

to include relevant information precludes informed decisionmaking and informed public participation,

thereby thwarting the statutory goals of the EIR process. (Id.)

Judicial review of these two types of error differs. The court determines de novowhether the

agency has employed the correct procedures, scrupulously enforcing all legislatively mandated CEQA

requirements. (Save Tara v. City of West Hollywood(2008) 45 Cal.4th 116, 131; Vineyard Area

Citizens for Responsible Growth, Inc. v. City of Rancho Cordova(2007) 40 Cal.4th 412, 435.) As in this

case, a claim that the lead agency approved a project with potentially significant environmental effects

before preparing and considering an EIR for the project is predominantly one of improper procedure to

be decided by the courts independently. The claim goes not to the validity of the agencys factual

conclusions but to the required timing of its actions. (City of Irvine v. County of Orange(2013) 221

Cal.App.4th 846, 854; POET, LLC v. State Air Resources Bd. (2013) 218 Cal.App.4th 681, 718.)

Because the County failed to conduct the proper CEQA review of the Project before approving theProject, the courts review is de novo.

VI. ARGUMENT

A. The Ratna Ling Project is inconsistent with the General Plan and Zoning Code.

The industrial nature of the Project conflicts with various provisions of the RRD Land Use

Element and the implementing Zoning Code that serve to guide development and protect and maintain

important natural resources in the County. The Project is inconsistent with the RRD General Plan land

use and zoning designations because a 60,000 square foot industrial press operation is not a permitted

use under such classifications nor is there any substantial evidence to support the Countys

determination that the printing operation is merely ancillary to the sites retreat center.

//

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1. The Project conflicts with mandatory policies of the Land Use Element of the

Sonoma County General Plan.

The Projects industrial printing operation, including 39,270 square feet of permanent industrial

warehouse tents, is inconstant with the General Plans RRD land use designation, and the Countys

conclusion that the Project is consistent is not supported by substantial evidence.

The General Plan RRD land use designation is meant to protect lands for timber, geothermal

and mineral resource production and for natural resource conservation. (Id.) In order to protect natural

resources, the RRD category only allows residences at very low densities because within RRD areas,

there is a lack of infrastructure, greater distance from public services, poor access, conflicts with

resource conservation and production, and significant physical constraints and hazards. (Id.) The

General Plan states that one of the intents of the RRD designation is to [p]rotect against intensive

development of lands constrained by geologic hazards, steep slopes, poor soils or water, fire and floodprone areas, biotic and scenic areas, and other constraints. (Id.) Another intent of the RRD land use

categories is the [p]rotection of county residents from proliferation of growth in areas where there are

inadequate public services and infrastructure (GP, p. LU-56.) Permitted uses for RRD land include:

Single family dwellings, resource management and enhancement activities including but notlimited to the management of timber, geothermal and aggregate resources, fish and wildlifehabitat, and watershed. Livestock farming, crop production, firewood harvesting and public andprivate schools, hospitals, and places of religious worship are included. Lodging, campgrounds,and similar recreational and visitor serving uses provided that theyshall not be inconsistent withthe purpose and intent of this category.

(Id.) The County acted ultra viresby approving the Project. A 60,000 square foot industrial scale

printing press facility and warehouses are inconsistent with the fundamental, mandatory, and clear

nature of this policy.

In addition, in 2008, PRMD found that Policy LU-6(e) was applicable to Ratna Ling (AR4893),

and therefore, to be consistent with the General Plan, the Project shallmeet the following criteria:

(6) Adequate public services and infrastructure must be available for the use, without inducingunplanned growth....

(9) The size, scale and design of the use shall be in keeping with the rural character of the areain which it is located. (GP, p. LU-30.)

The Project is inconsistent with the General Plan because, as the District has made clear, this

Project will endanger county residents by allowing industrial growth where there are inadequate public

services. (AR12702-11.) Additionally, because the Ratna Ling site is on land that has a high fire

danger, the Project is inconsistent with the General Plan intent to limit development on land in fire prone



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Zoning Code section 26-10-010, entitled Permitted uses, lists the 36 uses permitted on land

zoned RRD without a use permit. One of those 36 permitted uses is found in subsection (p), which

allows for [a]ccessory buildings and uses appurtenant to the operation of the permitted uses. (Zoning

Code 26-10-010(p).) In other words, the zoning code allows an accessory building or use that is

appurtenant to one of the other 35 remaining permitted uses.

In a separate section, Section 26-10-020, entitled Uses permitted with a use permit, the

Zoning Code lists the 45 other uses that are permitted only with a use permit. One of those 45 uses that

are permitted with a use permit is found in subsection (v), which allows the county to issue a use permit

for [n]oncommercial clubs and lodges, golf courses and driving ranges, but not including miniature golf

courses; except that such uses are not permitted on land subject to a Williamson Act contract. Unlike

Zoning Code section 26-10-010, the uses listed in section 26-10-020 do not include an accessory use

provision.

Ratna Lings 2004 Use Permit was issued by likening the Ratna Ling Retreat Center to a non-

commercial club or lodge. (AR47.) It is therefore not a Permitted Use under Zoning Code 26-10-

010, but rather is a Use permitted with a use permit under 26-10-020. As a result, the printing

operations, including the storage tents, cannot properly be deemed an accessory use to the retreat

center. There is no provision in the zoning code that allows an accessory use for a use only allowed

with a use permit.

Section 010 allows for an accessory use toany

of the permitted uses. Section 020, in contrastdoes not. Indeed, section 020 does not allow for accessory buildings or uses, except where specifically

stated. The only use under 020 that allows for an accessory structure is subsection (ll), which allows a

use permit for Bed and breakfast inns, containing not more than five (5) guest rooms (Zoning Code

26-10-020(ll).) That subsection and no other subsection under 26-10-020 allows for one

accessory structure. (Id.) The provision for non-commercial clubs makes no such allowance for

accessory structures. (Zoning Code 26-10-020(v).) The court must construe zoning ordinances

reasonably, considering the object to be attained and the general structure of the ordinance as a whole.

(Fairview Neighbors v. County of Ventura(1999) 70 Cal.App.4th 238, 246 (citingMarkey v. Danville

Warehouse & Lbr., Inc.(1953) 119 Cal.App.2d 1, 5).)

Nonetheless, the County made the finding that the press operations, including the 39,270 square

feet of printing storage tents, was allowed as an accessory use to the Ratna Ling Retreat Center.



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(AR47-48.) In so finding, the County committed a prejudicial abuse of discretion and failed to proceed

in a manner required by law by approving a use permit that is inconsistent with the Zoning Code.

3. Ratna Lings printing operations are not an accessory use.

Even if an accessory use were allowed to be permitted for the Retreat Center, the County still

abused its discretion and failed to proceed in a lawful manner because based on all quantitative

measures, it is clear that printing is not ancillary to the retreat use. Accessory useis defined in section

26-02-140 of the Zoning Code as a use of land or a building that is related to andsubordinate to the

primary use of the land or buildinglocated on the same lot. (Zoning Code 26-02-140 (emph. added).)

Using any meaningful quantitative measure, the printing operations are not subordinate to the retreat

use, and therefore the County abused its discretion by approving the Project by finding the expanded

printing operation including the storage tents to be an accessory use.

The size of the printing operation has tripled in size since the 2004 Permit was issued. Even

when considering the much smaller printing operations for the 2004 Use Permit, PRMD staff was

hesitant about the compatibility within an RRD zone, noting in its Staff Report that:

Although the printing facility is intended for noncommercial purposes, staff hassome concern about the compatibility of this relatively large scale printing facility(100,000 books per year) with the purposes of the Resource and Rural DevelopmentGeneral Plan land use designation and RRD zoning district. Printed materials areto be distributed on an international level rather than just serving a local or regionalneed. To approve the Use Permit, a finding must be made indicating that theprinting facility is an ancillary use to the retreat facility. The press facility wouldnot be allowed if it was not ancillary to the primary use.

(AR806.) Indeed in 2006, the Deputy Director of PRMD called the original 2004 printing operations-

including one press and 18,000 square feet of space for printing and storage the limit of what is

reasonable for an accessory use. (AR4124.)

The Project increases the maximum number of people allowed in the printing facility from 27 to

80 during June and July and to 60 during the rest of the year. (AR51.) With the increased occupancy of

the overall site increasing to 122 (AR51), during June and July, 65% of total site occupants will be

allowed to occupy the printing facility at any one time. Even during the rest of the year, 49% of totalsite occupants are allowed in the printing facility at one time. These numbers only represent the number

of people in the printing building itself, and do not include any people that are working on text

production or distribution in the 40,000 square foot warehouse tents.

When it issued the 2004 Use Permit, the County was informed of only a single large printing

press capable of printing the 100,000 books limited in the permit. (AR5979.) The list of equipment



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identifying the one press was included as an attachment to the 2004 Use Permit. (AR4602.) Now there

aresix pressesat the facility. (AR12328.) In 2004, any book storage was to be included in the 18,750

sq. ft. printing building. (AR5998.) Now there are four warehouses covering 39,270 sq. ft. (AR5809.)

The modest printing operation approved in 2004, as the County emphasized, was pushing the limits of

the term ancillary. (AR4755.) The Project goes well beyond any reasonable interpretation of an

ancillary use. If the County had its doubts the small 2004 printing operation was an accessory, there can

be no doubt that the industrial scale printing facility now operating at the site is not a mere accessory to

the modest, not necessarily even religious, retreat functions offered in other buildings at the site. By the

reasoning of the 2004 permit, the printing operation can no longer be said to be an ancillary use.3

The 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.) In order to make its findings that printing was an accessory use, the County had to rely

on a misleading calculation which counted all land not within the printing facility or warehouses

including inaccessible undeveloped land as part of the retreat center, rather than comparing the size of

the printing buildings to the size of the retreat buildings. (AR48-49; AR9165-9166.) The printing

facility and warehouses are clearly not ancillary to undeveloped land on the entire 122-acre parcel. As

explained by the land use expert Peter Dellavalle, the proper comparison should have been based on the

size of the printing-related buildings compared to the size of the retreat-related buildings because open

space is a uniquely distinct land use category and should be excluded from an evaluation of the use ofthe built environment. (AR9165-9166.) According to Mr. Dellavalles calculations, the Project would

result in 49% of building area used by the printing operation, 38% by retreat use, and 13% for staff

housing, which is common to both uses. (AR9165-9166.)

Many of the Supervisors were concerned with PRMDs misleading calculations and lack of

consistency in its definition of accessory, as demonstrated during the Board of Supervisors Hearing,

when Supervisor Zane attempted to get clarification from Deputy Director Barrett:

SUPERVISOR ZANE: How --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.How did you determine that? Or the BZA [Board of Zoning Adjustments].BARRETT: The -- that is the crux of the matter, and the difficult question is how do you

3According to Ratna Lings website, [t]hekey focusof Ratna Ling is the Tibetan text preservationproject organized and carried out under the guidance of the Head Lama through the Yeshe De projectand Dharma Publishing. Ratna Ling willalsohost a health and wellness center. (AR5819.)



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determine accessory use. In those cases it has to be determined that its incidental andsubordinate to the primary use of the land. In this case, because its a religious land use and theyhave demonstrated that theyre its part of their religious practice to have community service,and their community service is tied to the press, they demonstrated, through that argument to theBZA, that its part of the religious land use and accessory to their retreat function. That thats

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 tothis accessory or ancillary use. In this case, its integral to their religious practice.SUPERVISOR ZANE: So youre saying that its kind of waived when it comes to religiousland use? I mean, can anybody set up some type of factory and say its for religious purposes andhave that waived? I mean, thats the question.BARRETT: That is a policy call for the board, really, as to whether and how much accessoryuse you would feel comfortable with on this site.SUPERVISOR ZANE: Okay.BARRETT: In this instance.SUPERVISOR ZANE: So the bottom line is Im still trying to get to the footprint and the term

accessory use. Theres no real environmental analysis on the footprint in terms of the publishingand printing versus the retreat, its just were using a terminology called accessory use andreligious land use, but Im not seeing the analysis. And thats what I'm trying to get at is iftheres any real analysis there that puts it into the accessory use.BARRETT: Yeah. I can share with you the analysis. And the findings of the BZA was that itwas integral to their practice, and for that reason was considered accessory. At the time that thepress facility was permitted, it was an 18,000 square foot structure. The rest of the retreat, Imnot sure what the total square footage was do you remember? of the rest of the retreat and thecabins?SUPERVISOR ZANE:Okay. But the BZA did make a determination. I totally get that. I'masking for data. Im asking for scientific data that puts it into accessory use. Thats what Imtrying to determine, if theres if that analysis has been made.BARRETT:Yeah. The analysis is really qualitative, its not quantitative. (AR4081-84.)

Even using Ratna Lings rationalization, printing is still not an accessory use. Ratna Lings

attorney wrote to PRMD that:

Ratna Ling has 1,381 retreat participants for a total of 5,301 retreat days in 2012. There aremore than 365 retreat days because there can be multiple retreat participants on any one date(e.g., 10 retreat participants on one day equals 10 retreat days).

(AR 7806.) Using the same evaluation technique, printing days would be calculated as follows:

The Project allows 60 workers for 10 months (August-May):

10 months= 40 weeks x 6 days/week = 240 days x 60 workers = 14,400 printing daysThe Project allows 80 workers for 2 months (June and July):2 months= 8 weeks x 6 days/week = 48 days x 80 workers = 3,840 printing daysTotal Printing Days: 18,240

As made clear by these quantitative measures, the printing operations are not subordinate to

the retreat use, and therefore the County abused its discretion by approving the Project by finding the

expanded printing operation including the storage tents to be an accessory use.



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B. The County failed to comply with CEQA.

1. This Project is a new project because it has never previously been reviewed

under CEQA.

In the instant case, the Project is a new project that has never been previously analyzed, and

therefore must be reviewed under section 21151 of CEQA. The County relies heavily on the two prior

MNDs prepared for completely different projects in 2004 and 2008. The fundamental problem with the

Countys reliance on these prior documents is that the Project is completely different from and bears no

resemblance to the projects analyzed in the prior MNDs. What was approved in the 2004 MND was a

Buddhist retreat center with an ancillary printing facility that was completely contained within a 18,750

sq. ft. building. (AR1; AR07.) The 2004 MND did not encompass any future development and the

MND only analyzed the environmental effects of the 2004 proposal. What the County is approving nowis a Master Use Permit for a major printing facility on land that also happens to hold retreats. The

Project is not essentially the same project as was evaluated in the prior MNDs, because those

documents do not evaluate any of the warehouse storage space. The environmental impacts of a 60,000

sq. ft. printing operation have never been studied. Accordingly, the county was incorrect in preparing an

SMND under section 21166. The County should have subjected this new project to a full environmental

review under section 21151.

Since this is a new project that has never been analyzed previously under CEQA, and as

discussed below a fair argument can be made that the Project will have significant environmental

impacts, the SMND should be set aside, and an EIR prepared. But even if the Court finds that this

Project is not a new project and therefore could be reviewed under section 21166, the SMND still

must be set aside because it is not supported by substantial evidence.

2. An EIR is required because substantial evidence in the record supports a fairargument that the Project has significant public safety and fire impacts.

Based on CEQAs fair argument test, the County must be ordered to prepare an EIR because

substantial evidence in the record supports a fair argument that the Project may have a significant effect

on the environment. [A] project may have a significant effect on the environment if there is a

reasonable possibility that it will result in a significant impact. (County Sanitation Dist. No. 2 v.

County of Kern(2005) 127 Cal.App.4th 1544, 1579-1580.) An effect on the environment need not be

momentous to meet the CEQA test for significance; it is enough that the impacts are not trivial. (No

Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 83.) The expert opinions of Michael Singer, former



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Chief of the Timber Cove Fire Protection District (Fire District), and Bob Dickson, President of the

Fire District, constitute substantial evidence, which supports a fair argument that the Project may have

significant public safety and fire impacts.

i. Substantial evidence in the record supports a fair argument that the

Project will have significant public safety and fire impacts.

The Fire District, a volunteer fire department, is the agency responsible for fire suppression at

and around the Ratna Ling Site. (AR134.) [I]t is the professional opinion of The Timber Cove Fire

Protection District that the approval of the Use Permit under the conditions proposed by the County both

at the April 8, 2014 Board Meeting and those proposed by the County for consideration at the June 24,

2014 Board meeting will not adequately protect the people, property and natural resources within its

District from the risk of industrial fire posed by Ratna Lings operations. (AR12702; see also,

AR4125.) The Districts conclusion is based on: 1) the Districts lack of training and equipment to fightindustrial fires, and 2) the tents lack of compliance with the Wildland-Urban Interface Fire Resistive

standards. (AR12719.)

1) Limited infrastructure in RRD zones.

The District has stated that 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 to fight a fire

of this type in this location. (AR1072.) In the absence of the required equipment and training, the

Project poses significant fire risks to residents, neighbors, and forests. (AR12721.) These are not

abstract risks. Wildlife fires, particularly wildland/urban interface fires, have historically occurred in

Sonoma County. The California Department of Fire and Forestry (CAL FIRE) has identified several

historic wildfire corridors in Sonoma County. Those corridors include: the Guerneville/Cazadero area

which experienced fires in 1923, 1951, and 1977 (AR13571.)

The Districts conclusion that the Project will have a significant impact stems in part from the

improper location of an industrial use in an RRD zone. (AR12704.) All of the Fire District is zoned

RRD. (AR12704.) The Countys General Plan does not permit industrial uses in RRD zones.4

(GP, p.LU-55-56.) As a result, [t]he District does not have the equipment or training to fight industrial fires

4Indeed land is designated RRD in part becauseof the lack of infrastructure and public services. (Id.;GP, LU-55-56.)



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and hazards because until Ratna Ling there were no significant industrial operations within the

District. (AR12704)

The Fire District and the Sonoma County Fire Chief agree that it is reasonable to identify a fire

in the warehouse tents as an industrial fire. (AR4449; AR12702.) The record contains ample evidence

of the Fire Districts expert opinion that it does not have the training or equipment needed to address the

risks of the Projects industrial operations. (AR4125; AR1072; AR12702-12711.) According to Mr.

Dickson, when an industrial fire occurs, such as one that may start at Ratna Ling, a fire department in an

industrial zone would respond to the fire with Multiple Type 1 engines[;] A ladder truck[;] An

ambulance[;] A Rapid Intervention Crew[;] A Breathing Air Salvage Truck [and;]Station coverage, and

support from adjacent fire department. (AR12705.) The fire department would have the ability to pump

2,000-3,000 gallons per minute of water, and initial response times would be five minutes or less.

(AR12705.) The District, in contrast, does not have a Type 1 fire engine. (AR12705.) The engines that

the District has are designed to fight wildland fires and conventionalstructure fires. (AR12705.) One of

the Districts mutual aid neighbor fire departments does have 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 stated that it cannot guarantee that would

be able to suppress a fully involved industrial fire in the printing facility or storage tents. (AR12705.)

The County understands the danger of not having properly trained or equipped fire fighters.

According to the Wildfire Hazard and Risk Assessment section of the Countys own Hazard MitigationPlan (AR13566-13587), [w]hile the County generally has been receiving acceptable levels of service,

problems have resulted from the condition of existing equipment and matching the type of equipment

and staff training to the type of fire. It is clear that fire fighting responses alone cannot fully eliminate or

reduce the risks from wildland fires. Thus taking proactive steps to reduce the incidence of, and potentia

risk from, wildland fires before they occur is essential. (AR13574.)

The record contains substantial evidence, including the expert opinions of Mr. Singer and Mr.

Dickson, that the Project may have a significant impact on the environment because the District lacks

the training and equipment needed to fight an industrial fire that may result from the Project. Because

the county relied on a negative declaration it is entitled to no deference for its conclusions of no

significant impacts. (Pocket Protectors, 124 Cal.App.4th at 930.) In light of the substantial evidence of

potentially significant impacts presented by Petitioners, an EIR must be prepared.

//


8/10/2019 2014.12.12 Opening Brief Coastal Hil

2014.12.12 opening brief coastal hills rural preservation vs. county of sonoma, case# scv-255694

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